Wednesday, April 30, 2008

Donate to Grits' crime victim compensation fund

It's been quite a while since I've asked readers to support Grits for Breakfast with donations, but a series of petty crimes has put me in a squeeze. If you're a regular reader of this blog and are able to do so, I hope you can help out.

Here's the scenario: First, my wife and I last week discovered that we'd been victims of identity theft, with someone in New York draining our bank account from afar. The bank is going through its appeals process, and at the moment there's no telling when or if we might get repaid.

Then over the weekend, some idiot smashed my car window at Eeyore's Birthday Party and tried to steal my stereo - they failed, but destroyed the dashboard and stereo in the effort.

Finally proving these things come in threes, the following day my daughter's car was stolen for a joy ride; we got it back it, but it was damaged and needed repairs she couldn't afford.

That's why I'm making this "bleg" for reader donations. I'm hoping the identity theft issue will eventually resolve itself, though we've been given no assurances. But in the meantime the missus and I face an empty bank account, a stack of bills, and major vehicle expenses resulting from these crimes. We're about $2K short of making ends meet in the near term.

If you're a regular reader of this blog I'm asking you to consider making a donation (via PayPal) to help us get over this hump. Indeed, if you work in the criminal justice arena and have ever found Grits professionally useful, I hope you'll consider making a more substantial donation.

Please help out to the extent you're able. Every little bit helps. And thanks, Grits readers, for your continued support.

UPDATE: A reader who "doesn't do PayPal" asked where he could send a check. Make it payable to Scott Henson, and send it to

Scott Henson
603 W. 13th Street, Ste. 1.A-253
Austin, TX 78701-1477

Thanks, folks - I really appreciate it.

Dallas Sheriff: Deputies were right to allow armed robbery by snitch

Dallas Sheriff Lupe Valdez says she hasn't read a report about one of her deputies assigned to the auto theft task force who knew ahead of time his informant planned to commit a robbery in Waxahachie. Reported the Dallas News yesterday ("Dallas County Sheriffs department task force criticized for truck heist," April 29):

When several men broke into a Waxahachie truck terminal last October, tied up a security guard at gun point and crashed a semi-trailer loaded with $1 million in cigarettes through the front gate, they didn’t know one of them was a snitch for the Dallas County Sheriff’s Department.

A sheriff’s detective who was in contact with the informant that night said he didn’t know the crime would turn into an armed robbery. But the informant was surprised to be arrested months later, saying the detective knew for weeks what he was planning.

The Sheriff’s Department launched an internal investigation of its auto theft task force after local police officers complained that the detective hid key information from them to protect his informant.

That investigation cleared task force officers of any wrongdoing, but it exposed what critics called sloppy procedures by the sheriff’s department and lack of controls over the use of informants. ...

Task force detectives knew days in advance that the truck heist was going down at the Celadon trucking terminal in Waxahachie. They did not intervene and, in fact, weren’t even at the scene. The plan was to find out where the stolen cargo was headed. But it was thwarted when Dallas police were alerted to the abandoned truck.

If the investigation cleared officers who knew ahead of time about the crime, the the department doesn't just have sloppy procedures, it has sloppy supervisors and internal affairs investigators. There's no way that kind of abuse should be tolerated.

It's one thing to say you didn't know the theft would turn into an armed robbery, which was the Sheriffs deputies position, but then months later officers with the task force refused to cooperate with Dallas PD when it investigated the case, said a DPD investigator: “They just weren’t real cooperative in helping them identify or take this guy into custody.”

I was particularly disappointed to read Sheriff Valdez's comments, which make me seriously question whether this kind of activity is widely tolerated in her department:

Sheriff Lupe Valdez said she hadn’t read the 10-page report, which she called a special assignment and not an investigation. Nevertheless, she said she was satisfied with the task force’s performance based on the staff briefing she received and doesn’t see the need for any changes.

“The informant did what he had to do,” she said, referring to the informant’s participation in the heist.

Sheriff Valdez said she plans to read the report when she has time but doesn’t want to micromanage her departments.

“I have good officers who do their job. They inform me of what’s going on,” she said.

Sheriff Valdez said she plans to read the report when she has time but doesn’t want to micromanage her departments.

You know, Sheriff, if your officers don't show up to stop an armed robbery when they know a million dollar heist is about to occur, maybe you (or somebody who's more of a reader) needs to micromanage that department!

The News quoted several sources (including me!) to describe the boundaries for informant use crossed in this case:

Ellis County District Attorney Joe Grubbs said officers cannot have an agreement to permit someone to break the law.

“The danger in having a crime like that is that you don’t know how far it could go,” said Mr. Grubbs, whose office will handle prosecutions in the case.

Terri Moore, who is Dallas District Attorney Craig Watkins’ second in command, agreed that police cannot allow informants to commit crimes. “You’ve got to draw a line between you and a snitch somewhere,” she said, declining to comment specifically on the sheriff’s report. ...

In the Waxahachie case, the thieves had to drive the stolen truck past a manned security gate. Had the security guard been shot during the robbery, the Sheriff’s Department would have had some difficult questions to answer, experts say.

“When there is a known risk of harm to innocent victims, that crosses the line,” said Gerald F. Uelmen, a Santa Clara University law professor and former federal prosecutor. ...

“Very often, an informant is given a free pass to engage in criminal activity,” said Mr. Uelmen, who is also executive director of the California Commission on the Fair Administration of Justice, which has studied the use of jailhouse informants. “There needs to be tighter control over what informants are allowed to do.”

Finally, I'm anxious to see a copy of this full ten page report, even if Sheriff Valdez isn't interested in reading it, to find out more about how the Sheriff's department justifies promoting violent crime by its snitches. In part, they do so by attacking their critics, even others in law enforcement:

While clearing its own officers, the sheriff’s internal investigation blamed Det. Wallace, a member of DPD’s commercial auto theft unit, for the interdepartmental distrust. The report said he has interfered with task force investigations and told other police officers the task force had an improper relationship with Mr. Kelly.

The report concluded that there is an “element in the Dallas Police Department who is not beyond calling into question the trustworthiness” of the task force and the sheriff’s department in general.

Quite honestly, anyone who hears this story will inevitably and rightly call "into question the trustworthiness" of the task force and the Sheriff's department. That's largely because in a case where they have proven themselves untrustworthy, they continue to insist they did the right thing by protecting a criminal instead of arresting him.

See also this sidebar detailing several past high-profile scandals involving police snitches. Via Robert Guest and Bill Baumbach.

Tuesday, April 29, 2008

Dallas sees 17th DNA exoneration

Dallas County saw its 17th DNA exoneration today, with the release of James Lee Woodward, who was wrongly convicted after prosecutors withheld exculpatory evidence from his lawyers and police failed to investigate it. Woodard's was a case where nobody needed DNA evidence to tell Woodard didn't get a fair trial, reported the News:

James Lee Woodard was seeking a new trial at the 1981 hearing, alleging that prosecutors did not fully disclose information about Ms. Jones' whereabouts the night she was killed. The judge, John Ovard, who was also the trial judge, denied the new trial and formally sentenced him.

The judge and the district attorney's office could have righted Mr. Woodard's wrongful conviction in 1981, just months later, said Natalie Roetzel, executive director of the Innocence Project of Texas.

"It's one of the most disturbing things about this case," she said. "Essentially, that was ignored because the investigators had the suspect they wanted."

Would stronger "Brady" rules (the court case requiring prosecutors to disclose exculpatory evidence) or penalties for violating them have kept Woodard out of prison for a crime he didn't commit? That's the kind of outcome you hear referred to as "getting off on a technicality," but Woodard's case shows why those "technicalities" are there - to prevent wrongful convictions.

How many other Texas defendants in cases without DNA were also wrongly convicted after Brady claims were denied on appeal? There's no way to tell, but there needs to be some way to ensure prosecutors hand over all the information they're supposed to give defendants. When you're aiming to eliminate someone's liberty for decades, that's not the time to be playing hide the ball.

Woodard was another case spearheaded with the Dallas DA by the Innocence Project of Texas - good job, folks!

Lies and Statistics

Headlines today are trumpeting that 31 of 53 underage girls seized at the YFZ Ranch are either pregnant or have had children. Let's examine this claim just a moment.

In court at the mass 14-day hearing, the Department of Family and Protective Services claimed five girls between 16 and 19 were either pregnant or had kids. Later reports whittled that number down even further.

So how did we get so rapid an increase of 26 girls who're pregnant or have kids? DFPS spokesman Patrick Crimmins told the Deseret News: "Of those 53, Crimmins said 26 claim to be 18 or older. "But we don't think they are," he said."

Aaaah ... that explains it. I'd bet dollars to donuts every one of those 26 are pregnant or has a kid, since that would make DFPS' numbers add up. From the beginning, the agency seems to take these girls' word when it benefits their case, and label them liars when it suits them. That's probably a sound media strategy, but at the end of the day, in front of a judge, they shouldn't get to have it both ways.

If all of the additional "girls" they're now counting actually told DFPS they're 18 or older, and the agency has no documentary proof besides their suspicions that the women are lying, that puts a little different spin on it than most of the headlines today. Since DFPS has already said it disbelieves birth certificates and other documents found on the ranch, I wonder on what they're basing this belief that the alleged crime victims are liars?

What's more, if the girls and their families say they're 18, on what basis I wonder can DFPS force them into foster care?

This case just gets stranger and stranger. There's still no complaining victim. The allegations spawning the raid were a hoax. The agency can't figure out how many kids its seized from day to day. And none of the crime victims agree with the state's allegations, which differ wildly in the media from what DFPS said in court. Just bizarre.

MORE: From the Salt Lake City Tribune, and from Eugene Volokh. The Tribune reports that FLDS spokesman Rod Parker:
contends that the state's new count includes 17 adult women who are being classified as minors. "Beyond that I am unable to verify the information because the Texas Rangers took all the records that might be useful in responding to this," Parker said.

Beyond the Iceberg's Tip: Dallas to extend innocence investigations beyond DNA cases

Dallas District Attorney Craig Watkins will extend his department's efforts to identify innocent people who've been wrongfully convicted beyond just DNA cases, the Dallas News reported yesterday ("Dallas DA's scrutiny of non-DNA cases may alter view of inmates' innocence claims," April 28):

Mr. Watkins, a career defense lawyer before his election in 2006, said he is convinced that systemic problems he describes as "rampant" in the DNA exonerations provide a valuable road map for further investigations.

The number of cases in which untested DNA evidence is available continues to diminish with time.

But problems such as faulty identifications, inept defense attorneys or evidence suppression still may be found in non-DNA cases. Soon, Mr. Watkins' year-old conviction integrity unit and the Innocence Project may take on even more non-DNA cases that most prosecutors routinely resist.

This is exciting news, and Craig Watkins continues to rise in my esteem as this process unfolds. The most important aspect of the DNA exonerations, beyond freeing 16 innocent men convicted in Dallas County, was to show that the same handful of problems consistently caused most wrongful convictions, and those problems exist in cases where no DNA exists to test.

According to one of the lectures at the recent Actual Innocence conference in Plano, no DNA evidence exists to test in 90% of violent crimes, and Dallas is the only county in Texas that even kept DNA from decades-old cases. So if one assumes the same problems found in these 16 cases also caused wrongful convictions in other cases where DNA wasn't found or preserved, all of a sudden we're talking about potentially hundreds of innocent people convicted, possibly thousands statewide.

That's a particularly salient point in Dallas, where more innocent people have been exonerated from wrongful drug convictions - 24 people set up by an informant in the Dallas "fake drug scandal" - than have been exonerated through DNA.

IMO the first cases they should look at also stem from the 2001 fake drug scandal. The informant who set up those folks with fake drugs was also used in hundreds of cases involving real drugs. In one case we know of, the informant admitted setting a person up using smaller amounts of real drugs, and that person was also released. But then-DA Bill Hill refused to re-examine all the other cases made with that informant using real drugs; I've always wondered how many of those folks were set up, too. It always appeared to me in that case the informant was the real drug dealer and using bits of his own stash to set up others, but there are likely people still in prison based on cases he made.

The fake drug case involved outright fraud by police and informants, but victim and witness misidentification remains the biggest cause of wrongful convictions discovered in Texas and nationally, not only in DNA cases but by the courts. Since 1994, reported the News, the Texas Court of Criminal Appeals "exonerated inmates in five non-DNA cases – each involving victim recantations. Three of those cases were sexual assaults from Dallas County."

Even expanding the scope of their inquiry, though, it's likely to ignore most wrongful convictions because they ended in plea deals instead of trials. The case of James Ochoa described recently in the Los Angeles Times makes that point. Ochoa, now a Texan, accepted a guilty plea after a trial judge "basically told Ochoa to plead guilty if he wanted a lighter sentence." Later, authorities tried to say his plea "contributed" to his wrongful conviction and tried to block him from receiving compensation.

But the truth is the system puts innocent people in a position where, for many, the most rational option is to take a plea bargain to receive a lighter deal, particularly since prosecutors tend to offer probation, frequently, to resolve their weaker cases. I suspect a not-insignificant percentage of the 98% of criminal cases resulting in pleas also accused innocent people.

These cases may be almost impossible to resolve in retrospect without the benefit of definitive proof like DNA. But going forward changes can be made by policy or next year by the Legislature to minimize the problem in the future, e.g.:
  • Changing photo lineups to show pictures sequentially, use double-blind procedures, and ensure the victim or witness isn't pressured to make a choice.
  • Require corroboration for all informant testimony
  • Videotape all police interrogations
You can't solve a problem until you admit you have one. With the admission that wrongful convictions happen in more than just DNA cases, this discussion takes an important step toward achieving those kind of broader procedural changes.

Monday, April 28, 2008

Juvenile probation departments may lose federal funds for administrative costs

I'd mentioned last week that the Texas juvenile probation system received a boost of $57.9 million in its state budget for this biennium, and legislators were surprised their caseload hadn't risen as anticipated.

I wanted to follow up on that, because it severely misstated matters to imply juvie probation budgets went up by that amount. The were supposed to, but that's not what's actually happening on the ground.

At a Senate Finance Committee hearing April 22, Texas Juvenile Probation Commission director Vicki Spriggs told the committee about a likely revenue shortfall facing county juvenile justice systems because of a proposed rule reinterpretation that could reduce their federal "Title 4E" funding by $54 million this biennium. News of this federal decision, she said, came after the end of the 80th legislative session.

The reduction could come because the Bush administration reinterpreted existing rules related to "administrative claiming" by local probation departments - i.e., how much of their administrative overhead costs they could get reimbursed by the federal government. The law wasn't changed, and the rules weren't changed, but the feds decided to interpret them more stringently in the past and launched an audit to determine how far counties are out of compliance with the new interpretation.

According to TJPC attorney Lisa Capers, whom I spoke to on Friday, counties have already stopped receiving this money pending the feds' final decision, which could come in the next few months.

Here's the rub: Administrative claiming funds could be used by departments for virtually anything they needed, while new state funds came with strings attached for how they could be used. The state added $8.7 million to the basic funding formula, $13.8 million for intensive probation, and $35.3 million for residential services, according to the handout Spriggs gave committee members. That was much needed, but it's not a dollar for dollar replacement for lost federal funds, by any stretch.

This will cause problems for the counties soon if it hasn't already. It's a good thing probation caseloads haven't risen under the new system, because if this goes through the money budgeted wouldn't be enough to pay for the expansion in services they thought they were getting when legislators created the budget.

Statesman late to the 'stop snitching' party; Pravda ahead of the game

In the Austin Statesman today, Joshunda Sanders has a story informing us, "'Stop Snitching' sentiment spreads to Austin," and I'll expand here on comments I left under her story on the newspaper's site.

First, three years ago after I began writing about this topic, a friend bought me a "Stop Snitching" t-shirt from a vendor here in Austin. I don't wear it much, but I've seen the shirts here and there ever about town ever since. So why do we now we get a story saying the sentiment is "spreading to Austin"?

The article quotes almost exclusively police sources, including one bizarre claim that's blatantly, patently false: "The word 'snitch' gives [police] pause, writes Sanders, "'The only people who call it 'snitching' are crooks talking to crooks,' said former Homicide Commander Harold Piatt with the Austin Police Department, who is now retired."

It's ridiculous to claim "snitch" isn't a term used by police. That's straight up three centuries old law enforcement jargon, and is used by police and offenders alike. Hell, it's what police call their co-workers (or "rat") when officers inform on one another! What's the near-universal colloquial police slang for the Internal Affairs division? "The Rat Squad."

None of the problems with overuse of informants made it into the story, for example, how use of criminal informants can actually contribute to crime (see this article by Alexandra Natapoff on the topic). An interesting point of reference would have been this recent story about an Austin snitch working with police revealed that police routinely release criminals on their promise to inform on others, particularly after drug arrests. But are we really safer as a result?

There are plenty of sources both in Austin and nationally who could have made this a much more insightful story instead of a glorified APD press release.

Relatedly, I notice the Russian paper Pravda has an interesting two-part series available in its English language edition called "The Informant Quandary" (see part one and part two).
far too often informants have done more harm than good.

Informants often manipulate their status for personal gain. The Federal Bureau of Investigation’s (FBI) use of organized crime figure James “Whitey” Bulger, for example, enabled Bulger to eliminate competition by informing on other organized crime families, then taking over their territories after their members went to prison.

Harvey Matusow, an informant during the “Red Scare” era of the 1950s, later admitted, in a book entitled False Witness, that he had often been paid to provide false testimony about alleged communists, and was even encouraged to lie by Senator Joseph McCarthy and Roy Cohn, McCarthy’s chief legal counsel, after their anti-communist “crusade” catapulted them into the national spotlight.

Also there is a proclivity for law enforcement to conceal the criminal activities of informants, even at the expense of justice. Recently a judge awarded Joseph Salvati and Peter Limone, and the families of Henry Tameleo and Louis Greco, a judgment in excess of one hundred million dollars after it was revealed that the FBI, in order to shield an informant, allowed these four men to go to prison for a murder they did not commit. Salvati and Limone both served over thirty years, while Tameleo and Greco died in prison.

In addition, informants are prone to lie, especially to please their “handlers.” According to a recent article from the Associated Press, the informant in the Van de Kamp case had stated under oath that he received “no benefit” for his testimony, when in fact he had been given a lighter criminal sentence.

Good points, all. In each of those instances, US law enforcement harmed the interests of justice by prioritizing their informants' interests over crime victims. Perhaps there are brands of "snitching" that need to be stopped?

Dallas courts slowed down after adding two new judges

I've had this story sitting in an open tab on my browser for a week meaning to mention an example of first-rate reporting on the local court system from Kevin Krause at the Dallas News ("Dallas County felony courts face rising case backlog," April 20), in which we learn that Dallas criminal courts are processing cases more slowly despite the addition of two new criminal courts. Indeed, according to this chart, the backlog of pending cases rose 43% from 2004 to 2008. Reported Krause:

Criminal District Courts 6 and 7 cost Dallas County taxpayers more than $2 million per year. But since they began operating, average monthly case dispositions – or case resolutions – are down in all 17 courts.

The reasons given for this vary, depending on whom you ask. The local criminal justice system has many parts, and defense lawyers and prosecutors can contribute to slow-moving cases. Some cases are more complex and difficult than others, and thus take longer to try. But judges play a big role, too – for example, in the speed with which they hear motions and make decisions.

The two courts were the first felony courts to be created in Dallas County in more than a dozen years. Dispositions dropped immediately after the courts were added in late 2005. Judges in most of the established 15 courts disposed of fewer cases on average than the year before; some had substantial drops.

One of those judges, Becky Gregory, who lost her re-election bid in 2006, said she didn't know why her dispositions fell 22 percent in 2006. She said more trials can have an effect because they can take up to a week.

Ms. Gregory, recently nominated as a U.S. attorney by President Bush, said higher case filings can also clog a docket. Case filings in the district courts increased 2 percent in 2006. ...

Among Texas' five largest counties, Dallas County district courts have the second lowest disposition rate, behind Bexar County, according to state figures. Disposition rates are one of the few ways to measure a judge's effectiveness on the bench.

Dispositions were up slightly during the first three months of the current fiscal year. But it's difficult to get an accurate picture without at least six months of data, court officials say.

And the two newer courts are still lagging behind the others in total dispositions.

When the courts began operations in November 2005, the judges received a portion of the other judges' caseloads. Many were old cases that were more likely to go to trial and thus take longer to resolve, the judges said.

"We got all the dog cases," said Livia Liu, former judge of Criminal District Court 7. "My focus at that point was trying to get old cases moving."

Ron Stretcher, the county's criminal justice director, said the newer courts don't handle as many probation violations as the others. When a judge revokes probation and sends someone to prison, it counts as a disposition.

The newer courts also aren't getting as many cases as the others, he said. Last fiscal year, the newer courts got about 1,690 cases each, while the other courts averaged about 1,960, Mr. Stretcher said.

I was particularly interested, and disappointed, to see that much of the delay can be attributed to changes by then-DA Bill Hill implemented after the Dallas fake drug scandal, which have also contributed significantly to county jail overcrowding, Krause reported:

From 1998 to 2001, Dallas County felony judges disposed of more cases than were filed. But that trend reversed in 2002, the same year former District Attorney Bill Hill's new policy began requiring testing of drug evidence before cases are filed.

The policy was intended to prevent another fake-drug scandal but also delayed cases. With more cases coming in than going out, the pending caseload has continued to climb – by 56 percent since 2002. That translates into higher costs for Dallas County, because it means more defendants are sitting in jail – at $41 each per day – awaiting disposition of their case.

About a third of inmates in the Dallas County jail system are awaiting dispositions of felony cases, according to recent county reports. Some can sit in jail for up to a year awaiting an outcome. Only those awaiting appeal spend more time on average in the jail.

The reason the jails aren't overflowing is that, beginning last year, Dallas County reduced the high number of low-level offenders in the jail system through expedited plea deals and other measures.

Finally, Krause reports on current proposals for improving court's disposition rates, and suggests that several courts' shift toward managing probationers in DWI and drug courts might contribute to the increased backlog:

For about two decades, Harris County has used a 24-hour intake system, in which people are booked and processed around the clock. As a result, almost 60 percent of Harris County's felony and misdemeanor cases are disposed of within 48 hours.

Dallas County is several months away from instituting its own 24-hour intake system, Dallas County Commissioner John Wiley Price said.

County officials and the district judges give different reasons for the growing caseload, but all say the judges are working hard.

Judge John Creuzot, the presiding judge of the felony courts, says the new Democratic judges are taking a different approach to justice.

They try to get probation violators back on track through treatment and monitoring instead of automatically sending them to prison, he said. "To say we didn't dispose of a case is not to say we didn't deal with a case," Judge Creuzot said.

Case backlogs are an important metric, but I'm uncomfortable with Krause's assessment, however common the sentiment, that "
Disposition rates are one of the few ways to measure a judge's effectiveness on the bench." That's only true if you accept the premise that a criminal court's main function is purely as a plea mill, maximizing the number of guilty verdicts as its sole measure of success. But that metric fails to measure most other things judges do.

For example, a judge who spends time exercising oversight of the probation department, which they govern as a local board, won't be disposing of cases but performs an important function that's part of her job. Similarly, the shift toward specialized drug and DWI courts assumes probationers' cases will stay in front of a judge longer and potentially come back more often. That's part of the nature of the beast - they're more labor intensive for the judiciary.

While I'm sure it's true the 2006 elections slowed down case disposition for a while, there's a good chance that trend will continue through these elections as well, so that excuse brings with it little comfort. A
43% increase in case backlog in four years borders on a crisis, particularly when it results in a full jail that the county can barely staff.

The 24/7 intake system soon coming online will help (see a discussion of the one in Harris County), but what else could Dallas do to resolve its growing backlog?

For starters, it sounds like judges need to consider expanded bond options in drug cases if the backlog from delays in testing evidence is causing long docket delays and filling up the jail. Hiring more public defenders and front-line prosecutors to move cases more quickly is one obvious solution, but that ball is in the county commissioners court's court.

What else could they do to speed up the process?

Washington Post explores frontiers of forensic DNA science

In a series of articles on the expanded use of DNA in the criminal justice system, the Washington Post looks at U.S. government plans to collect samples from those arrested but not convicted, the use of family DNA to make arrests, and the potential for 'deeper examination' of the accused, as genetic screening of newborns raises privacy concerns.
The Post series makes a great matched set with Grits' recent discussion of DNA evidence based on lectures at the 3rd annual Actual Innocence Conference, giving indepth reports on several topics discussed at that event.

RELATED: From CrimProf Blog, Washington State calls for improvements to remedy evidence accuracy problems

Lubbock wants "private defender" office for mentally ill

Lubbock County Commissioners appear to have embraced the idea of a specialized defender offices reducing indigent defense costs, particularly for targeted, high cost populations. First they spearheaded Texas' first multi-county capital public defender program, and now commissioners hope to create a "private defender" for mentally ill defendants. Reports the Avalanche Journal ("Lubbock County Commissioners seek grant for mental health defense system," April 26):
Lubbock County commissioners on Friday agreed to apply for a grant that would help fund the establishment of a private defender for mental health offenders. The office, which would be the first of its kind in Texas, would use county funds to pay a nonprofit organization to oversee cases defended by private attorney.

"This will actually save money and address a critical issue," said Bill McCay, Precinct 1 commissioner.

Commissioners noted in the Friday meeting concerns about the amount of time people are staying in jail before trial and said this office will help expedite the process for mental health offenders.

Establishing the office will save money by streamlining processes such as mental health screening, which was budgeted to be done by five screeners. This will in turn pay off by getting the people out of jail who don't need to be there, said Patti Jones, Precinct 4 commissioner.

There are no private defenders in Texas, said David Slayton, director of court administration and director of the mental health defender program.

If Lubbock receives the grant, it will start a new system, combining elements of the two existing defense systems in Lubbock County. Currently private attorneys are appointed to handle all non-death penalty cases on an ad hoc basis. Capital cases are handled by the new West Texas Regional Public Defenders Office of Capital Cases, also the first of its kind in Texas.

In a public defender system, the attorneys are actually county employees. The new system will be a convergence of ad hoc and public.

"It's 100 percent a marriage of the two," Slayton said.

The private defenders office still will allow private attorneys to handle the cases of the mental health offenders, but the oversight will be done by a non-profit organization using county dollars to defend the accused.

I'm not sure I understand the proposed system, or how a non-profit managing private attorneys would save any money, though earlier screening for defendants makes a lot of sense. Travis County created a public defender office for mentally ill defendants, but this appears to be a substantially different model.

Sunday, April 27, 2008

Who's to blame for the Eldorado mess? How about the Apostle Paul?

The Washington Post today called the Eldorado case an "unusual prosecution of a way of life." The story focuses on the crux of my own discomfort with all this - that past the bogus headlines about abuse, this case (we still need to settle on a name for this quagmire) is really about a national discomfort with a culture in which a girl's highest calling is to start bearing children early and often. The Post called it:

a legal fight with a twist. The state will argue that the sect's children are at risk at the compound, but not because every one of them has been physically or sexually abused.

Instead, they will say that the culture of the church, which encouraged girls to marry and bear children in their early teens, was a danger to any child immersed in it.

"There was a pervasive belief that children having children was what they were supposed to do," said Patrick Crimmins, a spokesman for the Texas Department of Family and Protective Services.

To those who study polygamist cultures, the crackdown seems like something out of the distant past. Something that, in the past, had reliably backfired.

That's been my take from the get go: Officials were initially worried the raid would turn into "another Waco," but they had the wrong analogy. They should have been worried it would become "another Short Creek," the 1953 raid in southern Utah that ripped women and children from their homes for 2-3 years before finally returning them all.

To help me think about our core discomfort with this culture's version of a girl's role, choices, and self-determination, this morning I went searching for biblical dicta on marriage, and the following passage jumped out at me:
"in the latter times some shall depart from the faith, giving heed to seducing doctrines and spirits, and doctrines of devils; speaking lies in hypocrisy; having their conscience seared with hot iron; forbidding to marry and commanding to abstain from meats which God hath created to be received with thanksgiving of them which believe and know the truth.

"For every creature of God is good, and nothing to be refused if it is received with thanksgiving, for it is sanctified by the word of God and prayer."
1 Timothy 4:1-5

Of course, St. Paul's point of reference wasn't polygamous marriage, but marriage between Jews and gentiles, a point over which he disputed with Christ's disciples in Jerusalem throughout his various missionary journeys. (I've often wished we could have read St. Peter's rebuttal.)

The Apostle Paul can be blamed for a lot of the attitudes about marriage and child bearing that the state of Texas now aims to prosecute, starting with his admonition, "wives, submit to your husbands." Paul went on to say in 1 Timoth 5:14: "I will therefore that the younger women marry, bear children, guide the house, [and] give none occasion to the adversary to speak reproachfully." (All quotes from the KJV.) That sounds a lot to me like the values CPS criticized among FLDS women that made them such a threat. (For that matter, as mentioned earlier on Grits, a case for polygamy, too, may be firmly established in the biblical canon.)

Most of Christendom doesn't consider the heretical religion founded by Joseph Smith in America to fall under the Christian umbrella, but Mormons accept the Christian Bible as canonical and a lot of criticisms about an oppressive ideology that too narrowly defines a woman's role (e.g., that her "highest purpose" is raising children, as the CPS investigators testified of FLDS women) can be applied equally to extremist versions of both faiths.

In mainstream culture, we've come to think of this debate playing out between feminists and Christian women, with the latter complaining the former want to "liberate" them against their will from a life raising children and running the household, as Paul advised to Saint Timothy.

The content of the complaint is similar to the backlash from conservative women when Hillary Clinton became First Lady and made derisive comments about "baking cookies." Partially for these reasons, Mormons overall have been drawn largely by the cultural conservatism of the religious right into the Republican party in recent years.

It's precisely this thread of belief, common to Christianity and Mormonism, that animates much of the culture war debate between feminism and religious folk. Quarkstomper over at Street Prophets recently lamented this common ideological thread:
My wife left the church long ago because she felt alienated by the attitudes towards women ... As far as she's concerned, all religions have the same attitudes as this group in Texas. I try to tell her different. I try to tell her that Jesus isn't about enslaving women; that God isn't about enslaving women; that the Gospel isn't about enslaving women. But people like James Dobson and Jerry Falwell and this Warren Jeffs guy tell her I'm wrong.
Most Americans today, whether religious or not, take it as gospel that a young women should have a range of options and the ability to choose among them. At the same time, everyone think some options are better than others.

Although the state didn't find many young pregnant teens at the YFZ Ranch, the outcry over FLDS practices has been widespread. The revulsion of 21st century sensibilities to what are essentially 19th century values, attitudes, and practices was painstakingly expressed recently in three posts on Orcinus: Secret Lives of Saints, Are FLDS Women Brainwashed?, and What We’re Not Talking About, Part I: Other Issues With the FLDS.

That baseline, essentially "feminist" position, though, errs when it fails to understand that liberation may come in many different forms, and that a life of service to family and faith may be as liberating, for some, as breaking glass ceilings and workplace barriers are for others. None of us possess any sure-fire recipe for happiness in this short life, and in the absence of such a formula, many still turn to God for advice on topic, as they understand Him, or whatever texts they believe represent God's views.

How odd it is, then, to see this attempt to forcibly liberate religious women from family and faith led by Governor Perry, Gregg Abbott, Rep. Harvey Hildebran (who changed Texas' marriage age to target FLDS), the Texas Rangers, and hundreds of armed police backed by helicopters and an armored personnel carrier.

The question in Eldorado, as in all feminism vs. religion debates, is whether women's call to marriage and child bearing is chosen or coerced. (We know their removal by the state was coerced.) But some who've left FLDS say the kids there are free to reject marriages or leave the community, and I've little reason to believe polygamous marriages disempower women any more than monogamous ones. Columnist Robert Kirby of the Salt Lake Tribune describes himself as "a Mormon descended on both sides from staunch the-federal-government-can-go-to-hell polygamists,"and tells this story about his own polygamist ancestors:
My great-great-grandfather Nathaniel married three women. Wife No. 1 was OK. However, I have a copy of the letter Wife No. 2 wrote to Brigham Young begging him to let her divorce Nathaniel because Wife No. 1 was so mean. See?

Wife No. 3 - my great-great-grandmother and one of Salt Lake's first female doctors - didn't bother with the letter. She threw Nathaniel out and became Wife No. 6 to some other guy a few blocks away.
Kirby's great-great grandmother doesn't sound too disempowered to me.

Even so, society's views toward a woman's role have changed a lot since Kirby's great-great grandma's time, much less since St. Paul wrote St. Timothy nearly 2,000 years ago. When feminism's ideological victory finally came, I never expected it would result in self-styled conservative pols using the brute force of the state to seize children from marriages "received in thanksgiving of those who believe." That odd role reversal is one of the things that make this debate so compelling.

A SELF-INDULGENT ASIDE: I couldn't help but think of the FLDS kids riding away from their parents in buses after spending part of yesterday evening entertaining the grandbaby. She's just beginning to talk, and with a little prompting picked up on the phrase "Yippie Ki Yay" from an old country & western song, with her and I repeating it back and forth to one another gleefully for several minutes. (You haven't seen cute until you've witnessed an 18-month old dancing and shouting "Yippie Ki Yay," flinging her arms into the air with a big grin.)

When she left, I wrote this and nearly added it to yesterday's post, then re-read it and found it a little hoakie. As the missus occasionally reminds me, I'm no poet. But on this blog what gets written ultimately tends to get posted sooner or later, so with that caveat and background, here you go:
I'll never forget that sad April day
When the Baptists brought buses and
Cops hauled us away
From our home on the ranch
Where the kids used to play
And sing "Ki Yi Yippe Ki Yay"

I'll never forget how all we knelt and prayed
While men with machine guns
Filed in like a parade
By the hundreds, an army
Swarmed God's holy place
Singing "Ki Yi Yippe Ki Yay"

I'll never forget hearing Judge Walther say
That my parents' beliefs were
Abusive per se
And I needed protection
From them and their faith
She sang "Ki Yi Yippe Ki Yay"

So they brought in more buses and swept me away
Into foster care, now the Judge
Says I am safe
But I don't feel that way
All alone and afraid
Singing "Ki Yi Yippe Ki Yay Ki Yay"
Singing "Ki Yi Yippe Ki Yay"

Saturday, April 26, 2008

Prosecutors blogging

Jamie Spencer alerts us to the existence of the da blog, apparently based in Harris County and writing from a prosecutor's perspective. Adjust your blogrolls accordingly.

And speaking of prosecutor blogs (which for whatever reason are relatively few and far between) the da blog joins the anonymous bloggers at Dallas Sidebar and Life at the Harris County Criminal Justice Center in Texas blogging from a prosecutorial perspective. The latter has become more interesting to me lately since the writer has completed, for now, her serial hagiography of failed GOP DA candidate Kelly Siegler and moved on to other topics.

Here's an excellent post explaining in detail how the DA's office handles intake and soliciting war stories from current and former users of the system. Following up, we get a discussion of Harris County's 24/7 Probable Cause Court and the bond schedule. There's also a reaction to the recent feature in the Houston Chronicle on alleged cronyism in juvenile appointments, a topic I'd failed to mention here when it came out. Nice work, AHCL.

Of course, we still get the occasional lament about an "end of an era" at the Harris DA's office (which makes me want to shout, "Hurray!), but that's the price of admission for getting to the good stuff. ;)

What's in a name? What should we call the gigantic mess emanating from Eldorado?

Salt Lake City Tribune reporter Brooke Adams rightly declares this picture of a FLDS child waving goodbye to her mother is "worth a thousand words." Just heartwrenching. Can what's happening really be in the best interests of this little girl? Is this really the only option the state has to protect her from possible abuse ten years from now?

Adams has rightly suggested recently that the Texas raid on the YFZ polygamist ranch in Eldorado needs a name. She proposed "the 2008 YFZ raid," which seems a little tame. "The Great Texas Polygamist Roundup" might be apropos ... even more so "The Great Texas Polygamist Clusterf#*k." With all the religious folks involved in this discussion, though, I doubt the latter suggestion will catch on. ;)

The missus thinks that, just like with Tulia, "This thing already has a name, and it's name is 'Eldorado.' I hope this is what the people in that town want to be remembered for over the next 50 years. It'll be the only thing anyone knows them for," she said just now when I told her what I'm writing about. Good point.

History will judge what Texas does with (or to) these families, and perhaps apply its own retrospective appellation based on facts that come out and the case's final outcome. But for now, what's a good short-term name for this fiasco? Offer your best suggestions in the comments.

I've had a hard time turning my attention away from this train wreck, and wanted to point out several more important news stories on the topic - whatever we're going to call it - that deserve Grits readers attention.

Prison ministry group thanks TYC staff

Thanks to the reader who sent me a link to the website of the Juvenile Justice Ministries of Texas, which is "a Christ-centered association whose mission is to strengthen individuals, organizations, and churches who work with juvenile offenders and their families."

The group has a newsletter (see here for past issues), the most recent issue of which includes a plea to its members for mentors to volunteer at the Texas Youth Commission, as well as this thank-you card from the group to TYC staff collectively:

That's awfully considerate. TYC staff don't get thanked much, though they get blamed a lot.

Digging around, there are quite a few resources on their website, and I was pleased to run across this article (pdf) discussing the unique challenges of juvenile prison ministries compared to working in adult systems. I also found interesting this article linked from JJMNT about ministering to "fringe kids," which quotes a youth pastor declaring, “If I started reaching out to the fringe kids and bringing them into my church I’d lose my job!” That's a sad commentary, but probably accurate in many churches.

Prison ministry advocates like the Restorative Justice Ministries Network of Texas have provided a unique and valuable voice in discussions over the future of the adult prison system, and I'm glad to see a web presence for who minister in youth prisons.

Friday, April 25, 2008

Juvie crime in Texas IS declining, but "why" is a mystery

Okay, back to the question: Is juvenile crime declining in Texas?

I'd posed the query upon learning that, contrary to official projections, the total youth on probation in Texas remained flat after changes in the law last year redirected repeat juvenile misdemeanants away from the Youth Commission. Through excellent reactions from commenters, listening to additional legislative testimony from officials, a conversation with a TJPC lawyer, and a review of documents submitted along with recent legislative testimony, I think I can hazard an answer:

Yes, juvie crime is declining. The bigger question is "why?" Even more importantly, "what can be done to encourage the trend?"

This decline didn't just begin last year. According to Texas Juvenile Probation Commission director Vicki Spriggs' testimony to the Senate Finance Committee this week (April 22), from 2001 to 2007 overall statewide referrals (meaning juvenile offenders sentenced to probation) decreased by 10%, though the state's juvenile population increased by 6% over the same period.

Mostly this reflects a dramatic drop in juvenile property crime. Spriggs' handout to the committee revealed that although the overall number of juvenile referrals declined 10%, referrals for violent offenses increased by 4% from 2001-2007, and the number of drug offenses increased by 7%. (Said the handout: "Referrals for a violent felony offense accounted for 5.6% of total referrals in 2000 compared to 6.4% of total referrals in 2007.") By contrast, referrals for juvenile property crimes declined a whopping 25% over the same period.

Reduced juvenile crime rates over the last 10 years track national trends, Spriggs said, and are not specific to Texas. I found this interesting, data-filled public policy report [pdf] from 2006 analyzing reasons for juvenile crime reductions in California, which has experienced even more dramatic crime reductions than Texas and has its lowest juvie crime rate in 30 years, according to the Center on Juvenile and Criminal Justice. Indeed, over the same period other states saw actual reductions in violent crime, whereas in Texas the increase was merely lower than the population increase - still a positive step, but for whatever reason we're not seeing as much reduction in violent crime as other states.

It's difficult to prove why something doesn't happen, or as Spriggs told Senate Finance, "It's hard to track kids who don't show up," meaning no one really knows why fewer kids enter the system. Since it's difficult to say exactly why these reductions are occurring, let's start by excluding hypotheses that don't explain the facts.

It's not the case that the data reflect more youth being certified as adults. Spriggs told Senate Finance that the number of kids certified as adults increased from 42 in the Jan-Mar '07 to 65 over the same period in '08. That's a significant increase, one that's likely a direct reaction by judges to changes in SB103 to Texas' determinate sentencing law. But it doesn't explain the scale of the aggregate changes. More than 40,600 youth are on probation in Texas statewide, so 100 fewer per year would barely amount to a blip on the statistical radar screen.

It's not a result of TYC's administrative decision to release offenders earlier. That's happening, but it wouldn't impact probation caseloads since those youth would be on parole, not probation. Similarly, a commenter wondered if changes in the law regarding 19-20 year olds with determinate sentences might affect the number, but the changes did not affect juvenile probation, which only runs through age 18.

It's also not a problem with bad data, TJPC attorney Lisa Capers assured me, declaring the agency is confident in local data because most counties scored highly on a recent audit of their data reporting systems. She said juvenile probation data collection was far superior to what she'd seen in adult systems (which wouldn't take much). Certainly the overall total count should be correct and comparable year to year.

Speaking to Senate Finance, Spriggs rightly dismissed the 'soft on crime' explanation, declaring that "law enforcement is not more tolerant" of juvenile crime, and that "schools are not more tolerant." Reinforcing her point about schools, Spriggs supplied the committee with data showing that referrals by schools to "JJAEPs" or "alternative education" programs increased by about 8% from the '03-'04 school year to '06-'07, even as criminal referrals declined over the same period.

The majority of youth sent to JJAEP were "discretionary" referrals, meaning they were expelled based on the school's own authority, not because of a statutory requirement. Of mandatory expulsions during the '06-'07 school year, 57% were for drug offenses according to data provided to the committee.

So schools face more disciplinary problems, but the courts see less. That's an odd conundrum. I wonder what's the relation between those stats?

Spriggs told the committee she couldn't completely explain the overall decline in probation referrals. Part of it, she said, was that in the past 13 years counties developed new infrastructure to handle most juvenile cases in the community, and I agree the importance of this relatively new development cannot be overstated.

Though TYC has 2,300 youth felons incarcerated, according to TJPC attorney Lisa Capers the counties handle about 18,000 felons through community based programs at any one times. These are kids who could be sent to TYC, but judges assign them to community based programming instead that's managed by the probation department.

Spriggs also suggested that many believe there's a "generational" aspect to juvenile crime, that the current crop of youngsters, for cultural and demographic reasons that aren't immediately identifiable, just aren't committing crimes at the rate occurring 15 or 20 years ago. I'm sure she's right such factors explain a large portion of the decline.

So what can we conclude from this discussion:
  • Juvenile crime rates in Texas are declining overall, but especially property crimes.
  • Violent crimes and drug crimes continue to increase, but at rates equal to or lower than the state's increase in juvenile population.
  • Diverting misdemeanants from TYC did not result in the expected boost to local probation caseloads.
  • Juvenile crime reductions partially result from a national trend, not per se from Texas' policies.
What I take from this data is that Texas has done a good job reducing juvenile property crimes, but hasn't taken advantage of favorable demographic trends to encourage the same reductions in violent juvenile crime seen in other states.

What do readers think of these explanations? And why do folks think the reduction in property crimes has been so dramatic, even as violent and drug crime continue to rise?

Thursday, April 24, 2008

GAO criticizes boot camp fraud and abuse

Thanks to several readers for pointing me to coverage of an analysis of juvenile boot camp programs that's in the national press this week.

The Government Accountability Office came out with a followup report to its study of juvenile boot camps and wilderness programs that Grits discussed last fall. See the new report here (pdf). After analyzing these programs in the big picture, GAO followed up at the request of a Congressional committee by analyzing eight individual abuse cases from boot camps and wilderness around the country. GAO intends to come out with a comprehensive study soon of juvenile residential programs.

In addition to allegations of physical abuse, said GAO, some such programs may be committing tax fraud or violating non-profit rules. According to the report (p. 4):
Posing as fictitious parents with fictitious troubled teenagers, we also found examples of deceptive marketing and questionable practices in the private residential program industry. Deceptive marketing included potential fraud, false statements, and misleading representations related to a range of issues including tax deductions, education, and admissions policies.
Some of the fraud claims hit a little close to home. MSNBC reports that a GAO rep testified before Congress that:
that a Texas wilderness program representative misled investigators about whether a trade group inspected the facility and whether the program was covered by health insurance.

Investigator Greg Kutz told lawmakers last fall that there were thousands of allegations of abuse in teen residential programs, including boot camps, wilderness camps and therapeutic boarding schools. When asked about insurance, the program representative "emphasized that we should not call ahead of time to seek pre-approval, because then we would be 'up the creek,'" Kutz said. In fact, experts told investigators that insurers actually could require pre-approval before mental health services are provided.
In another case described to Congress, said MSNBC, "a 12-year-old boy died of suffocation at a Texas facility after being restrained and forced to lie on the floor face down."

I haven't read the report yet, but as Texas considers shifting to regional juvenile justice systems that rely on residential placement, this may be an issue to watch.

MORE from the Dallas News.

Not to say I told you so, but ... FLDS search warrants now called "shaky"

These two headlines, though eerily similar, came two weeks apart:
If me and readers of the Salt Lake City Tribune knew this two weeks ago, why did it take Texas authorities so long to figure it out? Two words explain it: Willful neglect.

The man named in the search warrant, Dale Barlow, actually lived in Arizona. He contacted authorities immediately after the Texas raid occurred to say they were after the wrong man, but Texas Rangers took their own sweet time investigating the bogus call. Why? I think it's because they didn't want it proven fake before the 14-day CPS hearing.

Reported the Standard Times, "In a media briefing immediately after the two-day custody hearing Friday, CPS spokeswoman Marleigh Meisner used Sarah more as a symbol than as a person." Usually "symbols," especially phony ones, aren't enough probable cause in court to justify house to house searches and seizing hundreds of kids.

Without the fiction of rescuing a sixteen year old rape victim to justify their military-style entry into the YFZ Ranch, everything that's happened begins to look like a modern day witch hunt. I've argued repeatedly that any real sexual predators would go free because the raid has been mishandled, and this shows why. It was quite foreseeable nearly from the beginning, which I can confidently say, having publicly foreseen it.

UPDATE: More on the subject from our new friend the Headmistress at The Common Room, responding in part to the excellent comments in reaction to this post. ALSO: It looks like this circus is coming to Austin: FLDS filed a motion yesterday with Austin's 3rd Court of Appeals challenging the search warrant, and oral arguments have been set for Tuesday. I couldn't get the documents to open this morning, strangely, but here's the link to filings in the case with the 3rd Court. The Aspen News reports that the motion revealed authorities already knew that Dale Barlow, the alleged perpetrator, was in Arizona and not at the YFZ Ranch when the military style raid was launched.

Is juvenile crime in Texas declining?

Is juvenile crime declining in Texas despite a dramatic reduction in inmate population at the Youth Commission? That appears to be the implication of data presented to the Legislature by Angela Isaac at the Legislative Budget Board recently about juvenile probation caseloads.

I'm listening this morning to early portions of last week's joint hearing on juvenile corrections that I missed, and was very interested to hear the committee's discussion with LBB about Texas juvenile probation caseloads.

They discussed LBB-generated data showing the monthly juvenile probation caseload statewide declined slightly almost every month since April 2007, even though the Youth Commission quit taking misdemeanants during that period and began moving youth through their system and back into their home communities more rapidly.

The Legislature actually budgeted an extra $57.9 million for the Texas Juvenile Probation Commission on the assumption that these new populations and other changes would increase their caseload, but the average monthly caseload in the first six months of FY '08 was 145 lower than in FY'07. Since 98% of juvenile offenders are handled through local probation departments, juvie probation commitments are typically viewed as a pretty good indicator of the juvenile crime growth rate. So if caseloads are flat when overall population is growing, arguably there's less juvenile crime occurring, at least on the margins.

That's not to say the money wasn't needed - juvenile probation historically has been underfunded anyway. And although the caseload didn't grow, shifting TYC youth to the locals changed their offender mix substantially, and requires counties to provide additional services. Most of the new juvie probation money specifically goes to pay for contract residential beds. But the overall population in Texas is growing, and the school-age population is growing even faster.

The flat growth is especially impressive because juvie probation commitments over the last two decades far outstripped population growth. According to a recent Office of Court Administration publication:
The annual rate of increase of the juvenile population was steady for 20 years, averaging an increase 1.5 percent per year. However, the annual rate of increase of juvenile filings fluctuated greatly from a decrease of nearly 10 percent (in 1988) to an increase of 33 percent (in 1996), and averaged an increase of 6.1 percent per year.
Given that recent trend, it's pretty amazing to see the state with fewer juvenile probation commitments a year after dumping half the youth prison population into the county's laps! What do readers think explains this trend?

Wednesday, April 23, 2008

Bexar County starting to plan for possible post-TYC future

The Bexar County Commissioners Court has begun to come to grips with what it would mean if the state of Texas were to "abolish" the Texas Youth Commission (TYC) and shift responsibility for housing youth incarcerated from the county in county-owned facilities, reports Elizabeth Allen of the San Antonio Express News ("Commissioners' Chorus: Juvies's Comin'," April 23):
County Budget Officer David Smith said his staff's initial estimates showed the potential costs are "huge" - construction could be $74 million for a county facility (280 beds) and $111 million for a regional one (420 beds). Running the place could cost $16 million a year or $32 million a year respectively.

To put it in perspective, he reminded them that a penny on the tax rate generates about $8 million.
To be fair, I think his fellow senators have walked Chairman Whitmire back off the ledge a bit, and the discussion at the last public hearing on TYC focused more on "regional" TYC facilities instead of shifting responsibility to the counties wholesale.

That said, county officials in Bexar and elsewhere must recognize that the state has already shifted a great deal of new responsibility and cost their way, whether they're aware of it or not. Much attention was paid during session to a new law requiring counties to handle misdemeanants, but more importantly, another reaction to scandals last year was for the now-former executive director to change rules to dramatically shorten stays for TYC youth.

As a result, TYC's inmate population declined from around 4,500 when the West Texas sex scandal broke to about 2,300 now, estimated to decline below 2,000 or lower by year's end. Hundreds of such kids are already back in their home communities, and IMO not enough attention has been paid to their re-entry or adequately providing services to keep them on the right path and prevent recidivism.

Chairman Whitmire has insisted that whatever is done won't be an unfunded mandate, so it's good for Bexar and other counties to figure out up front what costs would be if they take on more of the serious juvenile justice cases. I hope, though, that local bureaucrats don't trump up ridiculously high numbers just to try to kill the proposal (e.g., I don't think anyone's talking about requiring Bexar to build its own lockup - I think that's a red herring).

Instead, juvenile probation departments should take this opportunity to assess their community treatment needs, P.O. salaries, juvie mental health services and other programming that's already being impacted by depopulating TYC by nearly 50% over the last year. There's a severe shortage of chemical dependency counselors, licensed sex offender treatment, and other services that are needed for both incarcerated youth and local community supervision.

To understand juvenile justice in the big picture, commissioners and others must recognize that counties already handle about 98% of juvenile offenders through the probation department and local detention centers. As such, perhaps this will be a chance to pay for long-needed infrastructure that can both service kids on probation and new kids coming back early from TYC.

No matter what, if counties are to have more responsibility, they need more control. I've thought it silly, especially now that the average length of stay in TYC is so much shorter (sometimes less than nine months), that juvenile probation and parole in most areas remain separate entities (probation controlled by local judges, parole controlled by TYC), even though both perform community supervision functions and deal with the same group of kids.

Some counties contract with TYC where the agency doesn't have its own parole division, and I actually think that's a better solution. That way, the same people would supervise the youth before they go to prison and when they get out. Nobody starts from scratch. The trick is, the state historically has underfunded such positions, and there'd need to be some mechanism to ensure the financial burden doesn't shift to the counties.

Finally, some discussion was given up front to opposition to new corrections infrastructure by NIMBY groups. As I've argued previously, the Legislature needs to do something to break this logjam, which is going to thwart many community corrections goals if they fail to act.

It's good for counties to begin planning ahead, and I commend Bexar for doing so, but there's no need yet for alarmist reactions. Instead, the debate over TYC's future during the next year will be a good chance for counties to evaluate what they need to do to improve local systems, which almost universally is something they need to do anyway.

Searching for principled voices on the Eldorado raid

Once the government launches a wave of persecution against a religious minority based on popular animosity, there's no telling which ugly direction it will turn, as evidenced by a the vandalism of a Mormon couple's house in Placedo, near Victoria, which they believe is related to Eldorado raid (though the victims are mainstream, not fundamentalist Mormons). This to me is the nearly inevitable result when officials use the might of the state to prosecute groups based on their beliefs rather than charging individuals for their crimes: It encourages attitudes that amount to wholesale bigotry.

Which brings me to the point raised in this post by a new blog sponsored by the group Principle Voices - Introspection of a Plural Wife (at Heart): The ACLU and other civil liberties groups need to step to the plate on this issue and inject some rationality into the process. Breaking its silence 13 days after the raid, the Texas ACLU issued a press release announcing it was "observing" the case, but did not return phone calls to the national media. Indeed, ACLUTX's early decision to remain a spectator is one of the reasons I've jumped on this case with both feet - it increasingly appears they will not.

Wrote Principle Voices director Mary Batchelor, "We understand that the Texas ACLU is watching this case closely ... but we strongly urge the Texas ACLU to become actively involved in these proceedings now before many more violations occur."

Hear! Hear! I can tell you for certain that when I was Texas ACLU's police accountability project director (2000-2006), I would have been all over this case like stink on a hog. I understand from third-hand sources the Eldorado raid has been a source of major internal wrangling within TX ACLU, and some leaders in the organization have opposed getting involved behind the scenes, which explains the weenie "we're observing" language in their press release. (Jim Harrington, a former ACLUTX executive director who runs the Texas Civil Rights Project, so far has been more actively involved.)

I'm glad to see Principle Voices taking leadership, since the Eldorado story has been marked by nothing more prominently than the utter ignorance of government officials and the media about fundamentalist Mormons. Wrote Batchelor:
There are many things people do not understand about our culture. Fundamentalist Mormons are not a single homogeneous body. There is great diversity within the culture, with varying belief systems and practices, separate groups and churches, and even those who refer to themselves as "independents" who are not a part of any church or group. (For example, I am an independent.) Many polygamists from these other churches, or who are independents, are well-blended in society, are cosmopolitan, live in regular neighborhoods and could not be picked out of the crowd and identified as polygamists.

There is a lot of confusion regarding Mormonism. The term is commonly identified with the mainstream LDS Church, which abandoned polygamy over a 30 year period beginning in 1890 when it released a manifesto renouncing the practice. It subsequently authorized underground polygamy while publicly denying the practice, until ultimately, by about 1929, it ceased altogether (except where it is still accepted as a theological tenet enduring in the hereafter; the LDS Church still regularly marries men in its temples to more than one female spouse for after this lifetime.)

The different branches of Mormonism can be compared to the different branches of Christianity. There are Protestants, Lutherans, Baptists, Catholics, etc., who all consider themselves part of the larger Christian body (LDS also consider themselves part of that body, with a great deal of protest from mainstream Christianity).
The strange dress, hairstyles and public presentation of the FLDS polygamists has too much detracted from the central constitutional issues at stake, so I welcome the perspective of serious religious folk demanding protection of the YFZers' First Amendment freedoms.

Relatedly, Grits' writing on this subject has recently received some attention. A Dallas News editor crafted together a couple of my recent columns to produce this op-ed today, and yesterday I did an interview on WNYC public radio in New York.

With as much national media as the case has received, I've been amazed how many folks - even reporters - are still unaware that the original phone call setting off the incident was a hoax, that there was no 16-year old rape victim to be rescued by the massive raid on the ranch. Invariably, I find that adding that tidbit of information changes people's perception significantly about what's going on in this case.

UPDATE: Confirming my sense that the ACLUTX and other civil liberties advocates on both left and right are abdicating their responsibilities by failing to participate this case, David Bernstein at The Volokh Conspiracy opines, "It's time for a nationally prominent civil liberties attorney to get involved." Yeah, because there aren't any "nationally prominent" Texas barristers who could handle it, right?

Tuesday, April 22, 2008

Texas still waiting to kill

Though the headlines shouted that the US Supreme Court approved lethal injection by a 7-2 margin, allowing executions to resume, when and how they will do so still must be decided on a state by state basis. Doc Berman points to a helpful column by Michael Dorf at Findlaw, declaring in part:

Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection. To say that the case divided the Justices would be a gross understatement. There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions.

In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case. In the long term, the decision's likely impact is unclear.

The controlling opinion of Chief Justice Roberts finds insufficient evidence in the record to support a conclusion that Kentucky's administration of its three-drug lethal injection poses a "substantial risk of serious harm," and thus to warrant the Court's ruling that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. However, the Chief Justice's opinion leaves open the possibility that such evidence might be found in a different case from a different state. For the next few years, therefore, we are likely to see challenges to the application of lethal injection in various states, and eventually the issue may return to the Supreme Court.

In Texas, the decision when the first execution will occur theoretically is in the hands of local judges, but as a practical matter everyone's waiting on the case of Heliberto Chi, an Arlington man convicted in the 2001 shooting death of a clothing store manager Until Chi's case is decided, reports John Moritz a\t the Fort Worth Star Telegram ("High court okays executions; Texas court hasn't," April 22), executions are unlikely to go ahead immediately, not

until the state's highest criminal court resolves questions about Texas' use of lethal injections raised in an appeal by an Arlington killer, the death chamber in Huntsville will likely remain quiet a little longer, a prominent defense lawyer said.

"I expect it will be Katie bar the door when it comes to judges setting execution dates in Texas," said David Dow, who runs the University of Houston Law Center. "But until the Court of Criminal Appeals issues its ruling on whether the Texas protocol [for administering lethal injections] holds up, I doubt we'll see any executions go forward."

Last year, less than two weeks after the Supreme Court announced that it would review the way Kentucky administers lethal injections, the Texas criminal appeals court served notice that it would review Texas' method.

Readers may recall Texas last execution when, despite a de facto SCOTUS moratorium on executions pending the outcome of the Baze case, Presiding Judge Sharon Keller bypassed her colleagues to put Michael Richard to death after a computer error caused the defendant to miss last-minute filing deadline. No word yet on the outcome of ethics complaints filed by hundreds of lawyers and citizens in the wake of Richard's death.

Now the CCA has a guide as to what's most important about a death "procedure," says Michael Dorf - aesthetics, at least according to Chief Justice John Roberts:

Whatever the ruling's ultimate practical impact may be, however, the Baze decision is important for the mode of reasoning the Court employs. The controlling opinion by Chief Justice Roberts--joined by Justices Kennedy and Alito--appears to endorse the proposition that the state can expose people to an increased risk of an excruciating death on what amount to merely aesthetic grounds. ...

Thus, whatever the goals of those who adopted the three-drug protocol in the first place, in the United States, the main point of continued inclusion of pancuronium bromide in the lethal injection protocol appears to be merely aesthetic. Were it not for the paralyzing effect of pancuronium bromide, then the body of an unconscious prisoner killed by potassium chloride-induced cardiac arrest might convulse in a manner that would be disturbing to witnesses. As Chief Justice Roberts wrote in his plurality opinion, the state "has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress."

I suppose if the "dignity" of the "procedure" is paramount, that does away with my idea for a possible lethal injection replacement: throwing the condemned out of airplanes. I'm guessing that means hosting executions on Reality TV is probably out, too.

Proposal to "ban the box" passed by Travis Commissioners

Today the Travis County Commissioners Court officially approved a proposal to eliminate questions about past criminal history on initial employment screenings, reports the Austin Statesman ("County takes crime question off job applications," April 22):

That question will be asked later in the application process for jobs unsuitable for people with a criminal past — such as handling county funds or records — in what the commissioners and some public safety officials said was a step to help make Travis County safer.

Employment is often cited as a key factor in keeping people who have been convicted of a crime from committing another. District Attorney Ronnie Earle was among those who said the change would improve public safety.

County Judge Sam Biscoe, the chairman of the Commissioners Court and chief architect of the change, said some county managers were disqualifying applicants based on checking the criminal-background box before checking other qualifications or whether the criminal background was even relevant to the job. Biscoe said the change is intended both to broaden the pool of potential employees and ensure the ex-convicts don't wind up back in the criminal justice system, using up resources and not contributing.

The change is the first of what Biscoe envisions as a number of steps to ensure ex-convicts can find work. Commissioners said managers can still take criminal backgrounds into account for jobs in which a background check would be conducted. The change is "partly selfish, and it's partly smart," Biscoe said.

"Banning the box" has been done in the past couple years in large cities such as San Francisco and Chicago.

I think this is a great idea, not just because of the qualified applicants who might otherwise be overlooked by the county, but because it's a case of local government setting an example for the state and the private sector, who I hope will follow suit. Personally I wouldn't mind seeing the county make some version of "banning the box" a requirement for firms that receive county contracts, at least on those jobs.

See earlier Grits coverage of this proposal, which was discussed at the jail solutions symposium in Bexar County this spring. Kudos to Judge Biscoe for spearheading it.

Cheaper, not just safer, to fully staff local lockups

I've been harping for a while on the fact that failing to adequately staff prisons and jails makes it less safe for both those incarcerated and those keeping them locked up.

Another aspect of the short-staffing crisis that gets less attention is that it's cheaper, as well as safer, to run an adequately staffed jail that doesn't rely on overtime for core staffing. In Nueces County, reports the Corpus Christi Caller Times ("Sheriff's cuts lead to likely budget surplus," April 22):

Midway through fiscal year 2007-08, County Auditor Peggy Hayes projects that the sheriff's department will come in 4.26 percent under its $5.06 million budget and that the jail will come in 1.4 percent under its $11.7 million budget.

Corrections officers previously worked four 12-hour shifts a week, which meant eight hours of overtime per officer was designed into the schedule. Officers now work five eight-hour shifts, and only accrue overtime if they work extra shifts. ...

In addition to making those changes since taking office in 2006, Sheriff Jim Kaelin also has brought the 312-person department to nearly full staff. That nearly full staff has reduced the need for overtime to offset vacant positions.

Last year, the sheriff's department went $850,000 over its $700,000 overtime budget. This year, it should come in at least $200,000 under, Hayes said.

The sheriff's department went over budget in 2005, 2006 and 2007 and the jail went over budget in 2006 and 2007.

"The budget has been reduced and some of the operating expenditures have been reduced," Commissioner Oscar Ortiz said after a mid-year budget review Tuesday. "First of all you have to give the sheriff credit. His administration has been able to do something that we have been unable to do for years."

At the end of the fiscal year, Sept. 30, any budget savings in Kaelin's or any other department will revert back to the county's general fund reserves. During county budget workshops beginning in May, county commissioners will determine where those savings will be spent.

The majority of the savings in Kaelin's organization come from overtime cutbacks.

"We had $1.5 million in overtime costs last year," Kaelin said. "I was new on the job, and I could not fix anything until I understood it. This time we will come in under the $700,000. That was accomplished by the shift change and fixing some staffing issues."

The same thing is happening statewide at county jails, state-run and private prisons, at TYC, and even federal lockups: No one can hire enough prison guards, so the unspent salary is cannibalized to pay for overtime costs, but at considerably greater expense overall to the taxpayer for the same jail services. Employees might like overtime in the short term because it puts more money in their pocket, but it's safer in the long run to operate state and local lockups with enough full-time staff to stick to a 40-hour week, and it saves the employing jurisdiction extra overtime costs.

Another significant source of savings in Nueces County, reports the Caller Times, came from shifting previously privatized jail transportation services back to the Sheriff's department.

Another large savings -- roughly $53,929 this year versus $162,973 last year comes via Kaelin's dismissal of a private prisoner transportation contract, county officials said during Tuesday's budget review.

After local courts issue a warrant for someone's arrest, if the person is apprehended by law enforcement in other areas of Texas, Kaelin must send someone to transport the prisoner.

Before he took office, a private transport company was charging the county an average of $619 per prisoner transported, moving 263 in fiscal year 2006-07. Over the past seven months, deputies have transported prisoners for an average of $63.37 per person and have moved 851.

"That covers gas, officers' per diem, which is overnight lodging if they go to Dallas or Fort Worth and pick people up who are wanted here on outstanding warrants," Kaelin said. "It's a tremendous savings in that budget. And we have doubled the number we are picking up."

In December, the county also voted on Kaelin's recommendation to switch food service providers from Mid-America Services, which charged $1.17 per meal, to Philadelphia-based Aramark, at a cost of $1.03.

"Those numbers seem small, but that's $80,000 to $100,000 a year less than what we were paying," Kaelin said Thursday.

Likely most counties facing high jail costs could look to these same two sources to reduce them - increasing staffing enough to cover base shifts on base pay, and evaluating privatized services for cheaper alternatives, including bringing some of them back in-house.

The Caller Times reported that "Last Tuesday, all four members of the Commissioners Court said operations at the sheriff's department were the high point of their day." For those of you in jail administration, when was the last time you read a comment like that in the paper about your local lockup?