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.

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.

RELATED ELDORADO NEWS:

• FLDS disputes number of pregnant teens, threatens lawsuit
  
• AP: Sweep of polygamist kids raises legal questions
• Hildebran: This won't be 'another Short Creek' (ed note: too late)
• FLDS kids need "to be placed in homes where they'll be taught the gospel of Jesus Christ" (this sentiment seems problematic)
• Rick Casey: Equal justice for prophets and priests
• Spoils of War: Big Hate - Big Brother
• Ben Stein: What did FLDS kids do to deserve this?

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.

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

Via Cursor.org:

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.

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"

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.

• Lost boys: Two sect kids missing
• Number of pregnant FLDS teens keeps declining
• CPS rejected expert's help
• 3rd appeals court will hear 4th Amendment questions in May, declines to hear challenge of removal order
• All FLDS children now removed from San Angelo fairgrounds
• Protesters decry child seizures at NBA game
• Audio: Hoaxer Rozita Swinton speaking on phone to activist Flora Jessop
• Investigators tracking YFZ Ranch finances
  

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.

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?

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:

• Grits for Breakfast, April 9: Search warrants for polygamist compound may be invalid

• San Angelo Standard Times, April 24: Confidence in FLDS search warrants shaky, authorities say

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?

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?

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?

BTW Judge, we found an extra 21 kids: now CPS says 437 FLDS youngsters in custody

Until yesterday, Texas Child Protective Services thought it had seized 21 fewer kids from a West Texas polygamist compound than were actually in its custody. The new total of seized children is 437. In other words, CPS lost these children for the last two weeks, and only just now figured out they were in custody.

So there were no "lost boys" associated with the YFZ polygamist ranch, according to court testimony, but CPS lost some of them after they were taken away.

This ridiculous news raises several questions: First, would it be accurate to assume that these 21 children have not received their mandatory 14 day hearing which the other 416 got (in minimalist, perfunctory fashion) last week? Since the judge refused to give individual hearings and grouped everyone together, maybe she'll say it won't matter. But CPS is now holding more kids than the court gave it permission to seize last week.

Second was enough food, clothing, medical supplies and other necessities being delivered if you didn't know how many kids you'd taken?

Obviously, the failure to know how many kids are in your custody raises a general competency issue; CPS increasingly appears simply not to know what it's doing. The Local Crank, a Texas family lawyer, opined in the comments to a Mormon lawyer's blog that normally:

CPS would’ve removed the alleged perpetrators (the husbands) and left the women and children in place to receive services. For another, if CPS does a removal, they NEVER allow a parent to just “ride along” since, by definition, if a parent is safe to be around a child, there’s no need for removal in the first place.

From that account and other conversations, I believe the Judge, CPS and law enforcement bungled this from the start. Now, as commenters have been lamenting, they're even removing infants from their adult mothers who are still breast-feeding, even though no one believes children that young were in danger. Reports the San Angelo paper:

While acknowledging that infants are best served by receiving breast milk from their mothers, Walther highlighted CPS' position that the mothers had placed their children at risk for abuse in the FLDS setting.

"The court has ruled the conditions those children were in were not safe for the children," she said. "I did not make the facts that got this case into the courts."

Excuse me, Judge? You issued a sweeping, house to house search warrant based on a highly questionable anonymous call that turned out to be phony. You refused to allow individual hearings for children, grouping them together like cattle. You accepted the testimony of an expert on "cults" who only learned about FLDS from media accounts over an academic who'd studied them professionally for 18 years. You've ruled the existence of five girls between 16-19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16 year olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.

If you ask me, Judge Walther, I'd say you've done as much to "make the facts" in this case as anybody. I think you oughtta just own it, but I suspect we'll see a lot more buck passing before this fiasco is done.

BLOGVERSATION: More good stuff from Messenger and Advocate, and The Common Room. Kuff discusses "The Polygamist PR Campaign," pointing out a new site sponsored by FLDS aptly named "CaptiveFLDSChildren.org." Meanwhile, Feminist Mormon Housewives has a poll up asking what should happen with FLDS kids. Go offer your opinion.

And from the MSM: The Dallas News editorializes that the judge "was right to rule that, as difficult as it may be for the state of Texas and these families, that the children must remain in the state's care for now." From the Houston Chronicle, "Polygamist sect unleashes PR campaign." And Jim Harrington of the Texas Civil Rights Project had this column in the El Paso Times yesterday which included the observation, "It is becoming increasing apparent that either officials were duped into obtaining a false warrant or obtained a warrant for which they knew there was no reasonable factual basis."

Critics of Harris County public defender remain in the shadows

The Houston Chronicle published a rather odd article on Sunday (April 20) regarding public defender systems titled "Public defender system has its critics," by Sara Viren - I say odd because, upon rereading it several times, I still can't tell who those critics are!

For example, we're told that "critics of public defender systems call them bureaucratic catastrophes." Really? We have several in Texas. Which of those do these unnamed "critics" view that way? Everyone named in the article spoke positively about PD offices. The only named person identified as a "critic" was actually a critic of the current system who complained that many court-appointed attorneys didn't visit their clients.

The article concludes that "many working the current system believe a public defender office — unless adequately funded — would make matters only worse." While I agree a PD office should be amply funded, I'd like to know who, exactly, is out there arguing that a PD office would "make matters worse." Judges? The DA's office? Attorneys presently taking court appointments? You can't really tell from this news story.

Related Grits posts:

• Lawyer: Harris County PD Office Overdue
• Proposed Harris County study will likely predict substantial savings from public defender office
• Rodney Ellis stumping for Harris County public defender

TDCJ unit in Fort Stockton only 59% staffed

Imagine you're a female prison guard with 13 years on the job. You're supposed to have two other Correctional Officers (COs) with you to guard between 80 and 100 adult male prisoners. But you're alone. And scared to the point that your knees shake. How much would you need to get paid to take that job?

That's the scenario described in the lede to a Houston Chronicle story yesterday ("State prison guard shortage 'critical,'" April 21) on Texas' chronic shortage of prison staff.

The Neal prison in Amarillo has so few guards working these days that Dorothy Barfoot, a correctional officer, often finds herself working alone in a dorm with 80 to 100 male felons. Sometimes she gets so scared her knees shake.

"Usually there should be two (correctional officers with me), at least," said the 13-year veteran.

But the prison can't find enough people to do the job of guarding inmates in Amarillo or anywhere else.

The Texas prison system is short more than 4,300 guards, with 17 percent of its full-time security positions unfilled. Nearly one in five of the state's 106 prisons operates with fewer than 75 percent of its correctional guards.

Far-flung Fort Stockton, the worst-staffed unit, operates with 59 percent of its correctional officers.

At a 59% staffing rate, Fort Stockton must be an awfully dangerous place; I wonder if there's a correlation between understaffed units and where most inmate violence or officer misconduct occurs? I've not seen such unit-by-unit data, but it seems likely.

The Chronicle also described how recent pay hikes for new entrants have been poorly received by veteran officers like Barfoot who are substantially underpaid compared to their peers in other states. Giving a raise to newbies but not veterans "'created a big problem with the veterans. They're raising Cain. They've been the backbone of this agency,' said Brian Olsen, who heads the correctional officers union."

Texas' per-inmate costs are relatively low, but that's because the state underinvests in staffing, medical care and rehabilitation programs, not because of any particular efficiencies it enjoys. At the end of the day, that's penny wise and pound foolish. Saving money at the expense of prison guard safety makes everybody less safe.

Eldorado Reflections

Having already written a dozen posts regarding the seizure of 416 kids from the YFZ polygamist ranch in West Texas, I've begun asking myself what it is about this incident I've found so compelling.

Most immediately, I empathize with the children involved at an almost gut level, but not in the way of the hand wringing CPS types who fear they're being sexually or physically harmed. From the evidence presented publicly, I do not believe that's true. Allegations of forcible rape turned out to be bogus, and only five girls between age 16-19 were found pregnant or with children - probably about the same ratio you'd find if you rounded up all the kids in my neighborhood.

Instead, I wonder what it would be like for these children to be torn from a loving family by people whose message is this: Everyone who loves you is bad. Everything you believe is wrong. The God you've been taught is a fraud and belief in Him is harming you.

To pluck any deeply religious child out of a secluded household and shower them with such messages from "de-programmers" would scar a kid for life, if they believed it.

From a psychological perspective, though, what's more likely to happen is that scared youth will cling TO their loving family, not rally against them. Or they'll act out, especially once they're exposed to media from the outside world portraying them and their lives in ways they know are false and unfair. Either way, these kids will surely blame themselves for what's happened to them, their parents and their faith.

There's also perhaps a personal reason I've latched onto this case, and since it definitely influences how I approach the issue, I'll just put it out there. In high school back in Tyler I had a crush for a while on a beautiful young Mormon girl. (There are a couple of Mormon wards in Smith County, and a large number of Mormons, surprisingly, in neighboring Upshur County.) As a gentile, her parents wouldn't let us date, per se, but after a rather odd experience where I formally asked their permission to see her - literally hat in hand - they agreed to let me visit her at their home in exchange for attending a series of introductory classes to their religion at the church, which happened to be near my house.

As evidence of the strange places young love can take you, I did so, and thus gained perhaps more insight than your average East Texas Baptist on the particulars of Mormon faith and family.

What ultimately put me off in that relationship was this gal's belief, not so dissimilar to those in the FLDS (though she didn't believe in polygamy), that bearing and raising children was a woman's highest calling. She was very smart, but her plan was less to go to college than to obtain what used to be called an "Mrs. degree" - i.e., she wanted to find a nice Mormon fella with whom to raise a passel of kids. She, her sisters and friends would openly discuss what would be the maximum manageable number of children while I listened, near horrified. I recall her speaking with admiration of women she knew with 15 or 17 kids, but didn't believe she could "handle" more than 12, the same as her Mom.

I was fascinated by her family nearly as much as the young lady, and for a while really loved spending time with them, especially her mother who I truly admired. The kids were all happy, disciplined, and well-adjusted. Listening to the Mormon religious narrative and doctrine, I never could buy it. But if you looked at the values and lives of the people living the faith, they behaved a lot like the more religious Baptists I knew, except with less hypocrisy.

I can no longer explain the theological details of the LDS belief that more children earned more heavenly rewards, and it hardly matters except to say that the idea is a substantive part of the religion established in America by Joseph Smith, in both its mainstream and fundamentalist forms.

In Eldorado, no one alleges YFZ parents are themselves abusing children. Instead the allegation (in court, at least) is that they're teaching their kids that a woman's highest calling is giving birth and raising children, and that it's acceptable to get married at an early age. Even if it were true, and the allegation was disputed, can this really be enough to seize children from their homes? It's not SUCH an outrageous belief, even if you don't share it: Until 2005, 14-year olds could marry in Texas with parental consent, and 16 year olds didn't need parents' permission.

I wonder if somebody put my high school sweetheart on the stand at 16 years old and asked her honest, fundamental beliefs about her religion, women's role and child bearing, if her answers wouldn't sound as strange to a bunch of CPS workers as the FLDS ideology? I'm pretty sure I know the answer. But I can tell you for sure the state of Texas wouldn't have done nearly as good a job raising those dozen kids as her parents did.

See prior, related Grits' posts:

• Big Love in West Texas
• Search warrants for polygamist compound may be invalid
• Is History repeating itself with raid on West Texas polygamist compound? Eldorado incident recalls 1953 "Short Creek" raid
• Will Eldorado case expose overwhelmed CPS system?
• Officials, lawyers, scrambling to handle biggest family law case in Texas' history
• Road to Eldorado paved with bumpy moral, constitutional questions
• History and biology cloud debate over Eldorado marriages
• Lots of substantive Eldorado coverage
• More law blawggers need to weigh in on West Texas polygamist case
• Too many unanswered questions plague Eldorado polygamist case
• After all the hoopla about "child brides" ...
• Phone call alleging abuse at polygamist ranch was fake, can the kids all go home now?

RELATED GOOD BLOGGING: Cicero at Red State, who's been slumming and visiting us in Grits' comments recently, ;) parses through CPS' court arguments and compiled an excellent "Appendix" including links to resources, news reports and some primary documents. See also this vacillating string questioning the correct position for a "Mormon feminist" on this matter.

MORE: An online petition has been created calling for release of the children.

Reducing Dallas jail's "debtor prison" function would save money, reduce overcrowding

Debtors prisons have been outlawed in the United States in every circumstance but one: When the government is the Creditor.

But the economics of debtors prisons don't work well on a large scale, particularly when operated and paid for by said sole Creditor. The expense of exacting the punishment for non-payment can easily cost more than it would have simply to reduce the debt for those who could not pay.

The City of Dallas is pondering a program to reduce unnecessary incarceration in the county jail for people who can't or don't pay traffic tickets, reports the Dallas News ("Plan to eliminate jail time for fine-only offenses could save Dallas $1 million per year," April 20):

The city of Dallas may open a 24-hour court to immediately process people arrested for many minor infractions, which could eventually save the city about $1 million a year.

Dallas Chief Municipal Court Judge Jay Robinson proposed the changes, likening the current situation to a "debtors' prison," because dozens of people arrested every day for not paying fines on tickets are often left languishing in the county jail overnight or even longer, waiting to see a judge.

He said the process mostly penalizes those with the least ability to pay fines and court costs.

"None of our crimes carry jail time," the municipal court judge said. "They're fine-only offenses. ... Does it make sense to imprison someone for a registration violation? That seems sort of ridiculous."

City officials are estimating that in time the city could save $1 million a year on the more than $6.8 million the city pays the county for the use of its jail facility.

The county jail's population could also fall, because fewer arrested people would be going to the jail, but the impact is likely to be minor. County officials say every little bit helps.

The types of violations the court would process are all from people arrested for Class C misdemeanor tickets – often when cited for three or more violations at the same time.

Others are taken into custody for failing to pay such tickets.

A judge told the paper there are two kinds of defendants who end up in court for traffic fines - those who can't pay, and those who forget to do so. Is there really any public safety benefit from incarcerating either class of defendant at all?

There's certainly little economic benefit. When people jailed for fines finally get to traffic court, "most received "time-served" sentences, meaning they don't have to pay fines and court costs," the paper reports.

The issue in the last several years reached a crisis stage because of massive new fines enacted in 2003, funds which go into the Orwellian named "Driver Responsibility Program." As a result, today an astonishing 10% of Texas drivers have outstanding warrants, and the county jails simply couldn't possibly jail every driver with debts to the state. (Overall, seventy percent of "Driver Responsibility" fines go unpaid statewide.)

Dallas' idea would reduce the procedural burden for processing excessively large fines and court costs from these minor offenses. Instead of supplying a deterrent for poor behavior that we want to reduce, both state and local government have come to rely on fine revenue for significant aspects of their budget.

Public safety goals are harmed when government comes to rely on fines for routine income because law enforcement's goal should be to reduce crime, but if crime goes down it generates a revenue crisis for the state.

I like Dallas' idea, and look forward to seeing more details about how it would work and what happens with fines under the new regimen.

Proving innocence, solving cold cases, frequently depend on DNA collection and preservation

Much of the focus at the 3rd annual "Actual Innocence" conference I attended last week centered on DNA testing which has led to more than 200 recent exonerations nationwide, so I thought I'd share with readers a few items of interest from my notes on the topic.

Perhaps unsurprisingly, Jim McLaughlin of the Texas Police Chiefs Association told the crowd that in an ideal world, he'd like to see every infant DNA swabbed at birth. (Why not just tag our ears like cattle, Jim, or inject a RFID chip under our skin and be done with it?)

Other speakers described pressures by law enforcement to expand the national DNA database by various means, and a handout in the backup material from USDOJ encouraged expanded use of DNA in property crimes. From a "CSI Effect" perspective that may sound like a good idea, but I don't see how it's pragmatically possible; the labs are overwhelmed trying to fulfill their functions now.

CODIS is the name of the software housing the national DNA database, to which 44 states contribute specimens from all certain convicted felons (see Texas' statute). Different states have different practices, but in Texas (and 10 other states) DNA swabs are taken upon arrest and entered into the system. Same for federal arrestees. Since its implementation, CODIS identified a possible match (not necessarily a defendant) in 2,238 total investigations as of March 2008, and in 50,000 investigations nationwide.

Three states allow the defense bar access to CODIS, which would certainly make it easier to check innocence claims or pursue independent investigatory paths from police.

A couple of speakers emphasized that scientists don't actually "match" DNA, but estimate a statistical probability they're the same, which is a slightly different beast. Fingerprints, it was pointed out, previously were considered "gold standard" evidence but their infallibility has increasingly come under fire. In addition, HPD crime lab director Irma Rios emphasized how frequently DNA evidence is contaminated or mixed with other DNA at crime scenes in ways that damage the evidence or make it unusable.

Some attention was paid to the issue of swabbing family members when DNA appears to be "close" to a suspect but doesn't exactly fit. Forensic specialists identified several best practices they said "should" be followed in such instances, but gave no information as to whether these are the practices in Texas' DNA sampling program. E.g., departments by policy should destroy DNA swabs from innocent family member or other suspects, and familial swabs should not be uploaded into local DNA databases at all. Some agencies require informed consent to get DNA, but it's legal to lie to get DNA samples, DNA in someone's trashcan is fair game, and you don't need probable cause to take a DNA sample under current law, the gathering was told in a seminar titled DNA 101.

The legal eagles among you may be interested that the Supreme Court recently granted cert (meaning they agreed to hear the case) in Melendez-Diaz v. Massachussetts (07-591), which will decide whether a forensic lab report is "testimonial" evidence subject to the "Confrontation Clause" in the US Constitution, as set forth in the Crawford decision. (For reasons that will become clear when I discuss Dr. Bill Tillstone's talk, I think a lab report decidedly IS testimonial evidence, but readers will be shocked to learn that SCOTUS and I do not always agree.)

It was also suggested there could be Brady issues (meaning it could violate a prosecutor's duty to disclose exculpatory evidence) if defense counsel isn't allowed access to CODIS, though the question lacks the immediacy of the pending SCOTUS confrontation decision.

Evidence gathering and preservation is particularly important in DNA cases. (Pictured at left is the New Orleans evidence room, via the Denver Post.) The only reason so many exonerees have surfaced in Dallas is that the county kept old DNA samples. Elsewhere they've been destroyed, though few people believe the same problems that cause wrongful convictions in Big D don't occur elsewhere. In San Diego, according to one speaker, DNA evidence was destroyed in 3/4 of old cases. (In Houston, regular readers will recall, the DA's office to this day frequently requires destruction of DNA evidence as part of a plea bargain, which avoids anyone going back to check old cases.)

Susan Green, a reporter with the Denver Post, spent a year investigating evidence destruction for a major newspaper series on the topic. (See the complete series.) The issue comes up in two ways, she said: Proving innocence and solving cold cases. She called the system under-regulated, and said local authorities routinely destroy evidence in old cases, including thousands of rape kits.

Legislation currently moving in the Colorado state legislature "would grant new trials to criminal defendants in cases where DNA evidence was thrown out despite a court order requiring it be saved for testing." That would be a strong deterrent to negligence in evidence preservation, don't you think?

Okie Sheriff running "sex-slave operation" with female trusties

I'd questioned earlier whether Sheriffs' use of inmate labor should be audited after two Texas Sheriffs departments were found to be using trusty labor for private businesses. Then I saw the lede to an AP story from Oklahoma, declaring:

Authorities have charged a western Oklahoma sheriff with coercing and bribing female inmates so he could use them in a sex-slave operation run out of his jail.

You can't make this stuff up. It really makes you wonder what other creative uses Sheriffs have found for inmate labor?

DNA evidence may clear accused Yogurt Shop Murders defendant

Defendants in Austin's famed 1991 "Yogurt Shop Murders" may wind up having their names added to Texans exonerated through retesting old DNA evidence, over strenuous prosecution objections, reports the Austin Chronicle:

A lawyer for yogurt shop defendant Robert Springsteen says that retested DNA evidence proves his client is not guilty and should be released from prison. In a writ filed Wednesday, attorney Joe James Sawyer argues that "new" DNA testing of a vaginal swab taken from victim Amy Ayers at the crime scene in 1991, requested by prosecutors, has revealed a previously undetected male DNA profile that does not match any of the four identified defendants. "This exonerates Defendant Springsteen and makes it clear someone else committed these murders," Sawyer wrote. (Download the full writ here.)

This case was a nightmare for investigators because of sparse evidence and more than 50 people confessing to the crime (including two of the four current defendants. Most of those who confessed, of course, were completely uninvolved in the crime. The state settled on these defendants based largely on two allegedly coerced confessions from these defendants (a video from one interview showed a detective holding a gun to a defendant's head.)

At least they kept the evidence to test. The judge approved additional testing by the defense, and more developments in this case should be forthcoming in the next few months.

Phone Call Alleging Abuse at YFZ was Fake: Can the kids all go home, now?

From the Denver Post:

Prank calls from a 33-year-old Colorado Springs woman may be linked to the raid at a West Texas polygamist compound, Colorado Springs police say.

Rozita Swinton was arrested at her home Wednesday evening on charges of false reporting in a local case, but Texas Rangers were present for the arrest, Colorado Springs police said Thursday night.

ABC News reported on its website Thursday that former Fundamentalist Church of Jesus Christ of Latter Day Saints member Flora Jessop, who operates a rescue mission for teenage girls trying to escape the sect, told Texas authorities she had gotten calls from a girl claiming to be an abused member named Sarah.

A girl with that same name made the original calls for help to a San Angelo, Texas, hotline, sparking the raid in which 416 children were taken into protective custody.

Jessop told ABC News that the Texas Rangers directed her to record the calls and the Texas Rangers traced those calls to Colorado Springs.

Though announcing the Rangers' involvement, Colorado Springs police declined to elaborate on the Texas link, and records in Swinton's Colorado Springs case have been sealed by a judge. Colorado Springs police said Swinton's Wednesday arrest was on local charges involving calls in which she claimed to be an abused child being held in a basement.

So here's where we are:

No complaining victims exist and the original abuse allegations were fraudulent, pumped up in the media by anti-polygamist activists.

No pregnant girls were found at the YFZ Ranch who were under 16 (the legal marriage age in Texas, with parental consent).

The most troubling outstanding claim: A CPS investigator testified one FLDS woman "may" have given birth as young as 13, which of course also means she "may" not have done so. The same CPS investigator, Angie Voss, also testified yesterday that an FLDS woman told her "Sarah" does exist and does have a baby, something all FLDS sources deny, and which we now know is likely not true.

More than 400 kids have been removed from their homes at state expense as a result of this fraud, generating court proceedings that are presently descending into farce.

Can the Judge put a stop to this now, please? Identify any individual cases that can be actually proven (I doubt there are any; five pregnant girls between 16 and 19 does not an abuse case make) and send the rest of the group and their lawyers home with the thanks and apologies of the court.

Then the FLDSers can turn their attention to filing what will likely be a vastly lucrative federal Sec. 1983 claim for this massive violation of their constitutional and parental rights.

See all related Grits posts rounded up here. MORE: From Messenger and Advocate.

AND MORE: Quite a few people have been asking "Where is the Texas ACLU?" in the whole FLDS debacle. The group broke its silence for the first time today, issuing a press release, but only to announce they're "observing" the situation.

SEE ALSO, From the Salt Lake City Tribune, see this account of testimony by a Mormon expert on FLDS doctrine and marriage practices, who told the court today that "it's not part of FLDS doctrine or scripture that teenage girls marry and have sex with older men. ... 'It's a major distortion to say they should engage in adolescent sexual activity'"

UPDATE: Judge rules all 416 kids should stay with the state.

Hello, this is your local fusion center: Be very afraid

Bill Baumbach at the Collin County Observer got a call from one of Texas' fusion centers (see past Grits coverage here and here) to warn him of a severe thunderstorm ... that had already passed over his house. See his discussion of the North Central Texas Fusion Center, a good analysis of its financing, and links to an array of other resources on the topic.

After all the hoopla about "child brides" ...

UPDATE: Original call that led to the raid deemed fake; 33 year old Colorado woman is missing "Sarah"!

AND: From AP, Polygamist sect hearing descends into farce

Here's the official tally of underage women married to older men revealed by the Texas Department of Public Safety in court today, compiled from FLDS records seized at the YFZ ranch (according to the Salt Lake City Tribune): "attorneys representing the state focused in on 10 women between the ages of 16 and 19 listed as married to older men. Five were listed as having children."

So all the talk of 14 year olds married off to old men was BS, at least according to evidence seized in the raid, and there's no evidence of any 15 year olds were married to older men, either. In Texas, a 16 year old can marry with a parent's consent.

The court heard conflicting testimony on whether the caller, "Sarah," who launched all this was a member of the group. I'd speculated she may not exist, but testimony today could wind up contradicting that claim. (I don't understand how she wouldn't know the name of the husband who beat her, or use FLDS terminology, but quien sabe?) As I've said many times, if she exists, hers and every specific abuse case should be prosecuted. But let's not pointlessly sweep up hundreds of other kids and families in the process.

Meanwhile, my lamentation that few law blawggers have written on the FLDS case generated a few takers, including Scott at Simple Justice, Stephen M (Ethesis), Ron's Insanity out of Houston, and Stephen Gustitis at The Defense Perspective. Doc Berman at Sentencing Law and Policy thinks FLDS isn't who legislators were thinking of when they wrote "child rape" statutes that could now apply. Thanks, foks, for reacting. Others?

See also good non-lawyer blogging from Prairie Fire Journal, and The Common Room, a Mormon perspective critique of FLDS from The Millenial Star, plus a response to TMS and (as usual) other excellent coverage of the case from Messenger and Advocate. The newspaper providing the best coverage continues to be the Salt Lake City Tribune, which is flat-out out-reporting the homegrown Texas press every single day.

Finally, for those who've only read criticisms of the FLDS lifestyle from former members, read the "testimony" from a young woman who left the FLDS sect of her own accord but doesn't believe that systematic abuse as described by CPS is going on there. Very interesting stuff, all around. The blogosphere (led by the Mormon Bloggernacle, which I heretofore didn't know existed) has been catching up, slowly, on this fast moving story.

See related Grits coverage linked here.

Too many unanswered questions plague Eldorado polygamist cases

The short-term fate of more than 400 kids taken from the YFZ polygamist compound in West Texas will be decided today in a San Angelo courtroom, but to judge by this story from ABC News, no one is considering any specific abuse allegations or the best interests of any individual kid. Rather,

One idea under discussion is to appoint one lawyer to speak at the hearing on behalf of each age group: children under 5, teenage girls and teenage boys, for example. If the state does retain custody, the children will be placed with relatives or in foster homes. Otherwise, they will go back to the ranch, perhaps under the supervision of a state monitor.

ABC News says Texas CPS will likely argue that the entire YFZ Ranch is a single "household," which seems like a stretch given its division into atomic families with their own domiciles. Such a ruling, to me, would be embarrassingly wrongheaded, but that would be par for this course.

On Day 14 of this fiasco, several burning questions remain unanswered.

Was the raid based on a hoax phone call? If not, where is the complaining witness? She still hasn't been located, and I strongly suspect she may not exist. The language used in the phone call, according to former sect members, does not match religious jargon used by the group - e.g., she referred to "outisders" when FLDS uses the word "gentiles," and spoke of events on "Easter Sunday," which is a holiday FLDS does not celebrate.

If the call was legitimate, why didn't Texas Rangers arrest Dale Barlow, the Arizona man the caller accused of forcibly raping his child bride? I think the answer is that he could not have committed the offense, and they know it. But that hasn't stopped the Nancy Graces of the world from hyping his pre-judged guilt over the last two weeks as though the original call was legitimate and fully confirmed.

Will Texas now handle every other underage pregnancy this way? Will CPS and their jack-booted partners storm neighborhoods in Dallas and Houston and seize the children of everyone who looks underage? ABC News reports that the state "will probably offer evidence that unmarried minors (children under 18) at the ranch are pregnant or have had children. That's a prima face case of statutory rape, which is a crime." How many other underage girls get pregnant every year in Texas? Will all of these kids be seized prospectively, just in case the pregnancy came from statutory rape, or only in those instances where we dislike the parent's religion?

Though CPS has a lower burden of proof for initially seizing kids, I still believe the original search warrant for the ranch that started all this will never hold up on appeal in any criminal prosecution of individual FLDS members. Based on the phone call from "Sarah," the judge issued a warrant allowing the search of every building on the compound. To pass constitutional muster, a search warrant must "particularly describ[e] the place to be searched, and the persons or things to be seized." There was nothing particular about this warrant, it was as general as it gets. Indeed, King George's redcoats use of the same tactic first inspired the Fourth Amendment.

Finally, the root of the argument that these girls are abused is that they've been "brainwashed" by their religion. But don't all religions "brainwash" their children? Isn't every religion absurd to a non-believer?

For example, if someone believes they talk to an imaginary friend who's a carpenter from 2,000 years ago, and says that friend forbids teaching young girls about contraception and disallows abortion, should every member of their church have their kids seized when a teenager becomes pregnant? Do we begin seizing Catholic children because some priests molested children? That, to me, is the equivalent of what's happened here. There's an intermingling of religious intolerance in the state's action that has turned (probably fabricated) allegations of abuse against an individual into a sweeping excuse to violate hundreds of people's rights.

Today is probably a formality - this judge clearly has already decided to go along with this fiasco, if only to avoid appearing foolish for having approved the raid in the first place based on so little real evidence. But if she were smart - or if she wanted to save the state of Texas a boatload of embarrassment down the line - the judge would take this opportunity to inject some rationality into the process, and let the kids go home where no specific allegation of physical or sexual abuse has been confirmed.

See related Grits coverage linked here.

UPDATE: The San Angelo newspaper has live updates all day from the proceedings. See also this Salt Lake City Tribune article on key legal players, and Brooke Adams' update from the proceedings.

ALSO: Reacting to some of the discussion in the comment section, I thought I'd point Grits readers to this (perhaps?) related story from the Dallas News from November 5 of last year: Texas teens lead nation in birth rate. (My Grandma used to say that when you point a finger at someone else there's always three pointing back at you!)

MEANWHILE: Authorities in Arizona say the timing of the Texas raid was "wonderful" to force compliance by FLDS members in Utah and Arizona with a pending settlement busting up the trust that held their property in the community that used to be called Short Creek.

TYC-UTMB healthcare contract expired; Pay hike coming for incoming TYC JCOs

I should have mentioned earlier that TYC conservator Richard Nedelkoff told legislators today he will "make parity effective soon" for TYC entry-level JCO pay, increasing it to match TDCJ's recent pay raise for new recruits. That won't affect veteran staff, but will increase how quickly new applicants accelerate through the first few salary levels during the first 16 months, if the salary hike follows TDCJ's example.

In other interesting news, it turns out TYC and UTMB's contract has run out and they're currently operating month to month. Rep. Jim McReynolds said that UTMB told him they're losing money on healthcare at TYC - currently they receive about $500,000 per month - and they're negotiating, with UTMB seeking more money.

That's an odd negotiation, isn't it, between two state agencies who're statutorily required to provide healthcare services to youth inmates? The state of Texas, after all, is responsible for TYC healthcare - it all comes out of the taxpayers' pockets. I'm in the camp that believes the experiment of handing TYC's (and TDCJ's) healthcare over to UTMB hasn't turned out very well, unless you're just a big fan of telemedicine. But now that Texas' youth and adult prisons have divested themselves of their historic ability to provide in-house healthcare, however good or (very) bad it may have been, I'm not sure what options exist.

I won't get to listen to the entire hearing until tomorrow or Friday, but thought I'd add these tidbits to the mix this afternoon.

More law blawggers need to weigh in on West Texas polygamy case

Robert Ambrogi at Legal Blog Watch graciously acknowledges Grits' coverage of Texas' raid on the Eldorado polygamist compound, but rightly questions why,

as the biggest legal story in recent weeks moves forward, one involving hundreds of lawyers and affecting the lives of many hundreds of women and children, the legal blogosphere seems blind to it all. As one who has come to look forward to blog commentary for insight and perspective, I am disappointed.

For the most part, I'd have to agree, especially since Texas enjoys an exceptionally robust legal blawgosphere. A few have offered excuses, but for the most part our Texas blawggers, like those nationally, have remained mute (if I missed your post, please let me know). One exception is The Local Crank, a frequent Grits commenter and one of the 400+ attorneys who has accepted volunteered for an ad litem appointment in the case. He called the situation a "fiasco," and concluded with the colorful observation, "Once again, Texas state government shows it couldn't pour piss out of a boot if the instructions were printed on the heel." (Regardless of your views on the raid, that's a great line!) He added here in Grits' comments:

Did no one think in advance to look if there were enough lawyers in a five county radius to serve as ad litems? Or if it was even feasible for one district court to shut down all it's operations to devote to one case? Or if there was even a courtroom big enough? And now, after letting some mothers come along with their children (admittedly an unusual act in a removal case), then stripping them of their cell phones, now they decide to kick them out unless they have kids under 4? This sort of screaming incompetence is going to permanently scar these children AND risk destroying any criminal cases that might be made. It's just beyond belief.

That agrees essentially with my assessment so far. I fear this overreaction by the state will make it impossible to pursue real abuse cases, and simply cause more harm than it cures.

Non-lawyer bloggers continue to offer some interesting thoughts. JourneyGal wonders "How many great-great grandmas do you have?," adding "I have a lot, because my great-great-grandpa had four wives." She supports the raid, but adds that, "I feel sad for women in Texas losing their children for crimes they either do not understand or do not believe they have committed. ProfessorUnc supports polygamy for adults but thinks FLDS' particular practices amount to "systematic rape." The MSM on this case, perhaps because of the salacious nature of the topic, is doing a more thorough than usual job. For example, I was humored to see an MSNBC story about the Pentagon contracting with a company run by the FLDS sect in Utah for military parts.

Ambrogi's right, though, that more law blawggers need to weigh in. For my part, I've written so much about the case because I've found the whole situation fascinating, a wild intersection of a whole slew of conflicting rights, values and interests on many, many levels. It's a situation where it's very difficult to decide what's right, so a more substantive debate among knowledgeable, thoughtful writers in the legal community would indeed be quite welcome.

UPDATE: Mark Bennett points me to a post yesterday from Ron's Insanity, by a family lawyer and regular Grits commenter from Houston, in which Ron concludes:

Here's my take on the FLDS organization. (I'm actually getting pretty disgusted with even calling them a religion.) They damage the lives of girls by turning them into child brides. They discard their male children because they're ultimately competition for sexual partners.

The Constitution is not an easy document. If you're a constitutional lover, it's easy to say that the First Amendment should control. However, like much in life, it's just not that tidy.

However, I'm still not certain that CPS will cause less harm than that organization would in the lives of those 416 children.

MORE: Here's a good analysis from ABC News about the upcoming court hearing Thursday morning to determine if the YFZ kids will remain in state custody.

Telepsychiatry at TYC: Can you imagine [a psychiatrist] having a paranoid person and telling them, 'Talk to the TV screen!'

Arriving home a couple of hours in, I've been listening to the TYC oversight hearing at the Texas Lege for the last hour or so, and a telling discussion arose about the lack of specialized treatment frequently ordered by courts for serious offenders.

While capital offenders mostly get the treatment they need, the committee was told, other serious offenders do not. In response to questions from Rep. Sylvester Turner, it came out that only 40% of sex offenders sentenced to TYC receive the treatment that courts order for them.

However, because limitations on state resources caused the youth to not receive treatment, the youth are not penalized and kept in the system longer, explained the attorney leading the release committee (who, in a small-world moment, it turns out was a roommate of mine in a past life, though I've not spoken to her for many years - Hi Karen!). Instead, they're evaluated based on their progress in what's been dubbed the "transitional" treatment program. (The new "Connexions" treatment program is being piloted at the Al Price unit in Beaumont, and it could take as long as 15 months to roll out system-wide.)

Part of the problem is that TYC does not employ enough psychiatrists - they pay for the equivalent of 5.5 full-time psychiatrists per week, a substantial portion of which is done through "telespsychiatry." Corsicana, the "mental health" unit for TYC, only gets 34 psychiatrist's hours per week, and TYC pays for about 220 hours total system-wide. That seems really low for a system with around 2,500 troubled kids!

This is an issue where I'm 100% with Sen. Whitmire; I've never understood exactly how you provide psychiatric services over the TV. During an aside, Whitmire wondered to Chair Jerry Madden,while waiting for a witness to arrive, "Can you imagine [a psychiatrist] having a paranoid person and telling them, 'Talk to the TV screen!'"

No kidding! From what I've heard of telepsychiatry in Texas prisons and jails (I've called telemedicine the "physician's version of fast food") the whole system seems pretty minimalist.

I was also interested to hear estimates that TYC's population may decline to less than 2,000 by the end of the year, a trend I'd predicted in a public policy brief last fall on changing TYC policies. (To those who scoffed - I'm talking to you Plato - hah!)

I came in on the middle of a fairly intense discussion, and I'm going to go back to listen to the full hearing later, but the discussion of mental health shortages and the failure to provide court-ordered sex offender treatment really jumped out at me. I wonder what those local judges think when TYC releases those kids without having received the treatment they ordered? Since TYC controls both the release decision and the parole division, I guess the judges don't have much say. Maybe others who know more about all this can better explain how that works? Why hasn't some judge already just ordered TYC to provide more treatment ... by telegraph or pony express, if necessary?

MORE: See initial coverage of the hearing from the Dallas News, from KXAN-TV, and from AP.

Faulty lineup procedures led to conviction of innocent Dallas man for rape 23 years ago

There was much talk at the innocence conference in Plano about Thomas McGowan, who should walk out of prison today a free man after an improper photo lineup led to his wrongful conviction for rape more than two decades ago. See initial coverage at the Dallas News, and here are substantial excerpts from a press release issued by the Innocence Project:

Thomas McGowan, who has spent 23 years in prison for a Dallas County rape and burglary that DNA testing now proves he did not commit, is expected to be released from prison tomorrow, according to the Innocence Project, which represents him.

In two separate trials in 1985 and 1986, McGowan was convicted of aggravated sexual assault and burglary and sentenced to two consecutive life terms in prison. DNA testing on a rape kit collected from the victim proves that he was not the man who broke into her home in May 1985, stole several items and raped her.

A hearing is set for 1:30 p.m. Wednesday (April 16) before Judge Susan Hawk in 291st District Court, on the 7th floor of the Frank Crowley Courts Building (133 N. Industrial Blvd. in Texas). McGowan and his relatives – with Innocence Project Co-Director Barry Scheck and Staff Attorney Jason Kreag – will speak to reporters outside the courthouse after the hearing.

McGowan will be the 25th person in Texas – and the 13th person in Dallas County – proven innocent through DNA testing after eyewitness misidentification led to a wrongful conviction. (Click here for short background on each of the previous 24 cases in Texas where DNA testing overturned wrongful convictions that were caused by eyewitness misidentification.) Overall, 31 people have been exonerated through DNA testing in Texas, 14 of them in Dallas County.

“Thomas McGowan was in his mid-20s when he was arrested, and he’ll turn 50 later this year. He has lost nearly his entire adult life to a wrongful conviction that could have – and should have – been prevented,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the 25th case in Texas where DNA proved that eyewitness identification was incorrect. How many more people need to lose years or decades of their lives before the state implements simple reforms that are proven to make eyewitness identification more accurate?”

The victim in McGowan’s case initially viewed a live lineup with three men who police thought might be suspects in the crime and three “fillers.” She did not identify any of the men as her attacker. Later, she was shown a photo array with seven photos – but there were effectively only three photos in the array, since two of them were photocopies of photographs, one was a black-and-white photo (all the others were in color), and one was marked “Garland Police Department” (while the remaining three were marked “Richardson Police Department,” which is where the crime took place). The victim said she “thought” the man in one of the three photos was her assailant, and the police officer administering the lineup told her “You have to be sure, yes or no.” When she testified in court, the victim recounted the officer’s instructions: “He said if I was going to say it was somebody, if I was going to say it was that picture, I had to be sure. He said I couldn’t think it was him. He said I had to make a positive ID. I had to say yes or no.” After hearing the officer’s instructions, the victim said the man in the photo – Thomas McGowan – was “definitely” the man who attacked her. The victim’s identification of McGowan was the central evidence against him.

Decades of scientific research show that instructions or feedback from an officer administering a live or photo lineup can significantly impact whether a witness identifies the wrong person.

“Just a few simple words can change everything. In this case, a few words from the police officer administering the lineup cost Thomas McGowan 23 years of his life,” Scheck said. “The officer forced the victim into certainty when she wasn’t sure whether Mr. McGowan was the perpetrator. While we sometimes hear of outrageous lineup procedures, improperly pushing a witness into certainty is much more common.”

By pushing the witness into certainty, the officer administering the lineup also apparently confirmed that she was selecting the man police suspected was the perpetrator. “If she had chosen one of the filler photos and said she ‘thought’ he was the perpetrator, the officer almost certainly would have told her that she should move on if she isn’t sure. Instead, the officer’s statements induced her to identify Mr. McGowan,” Scheck said.

The officer administering the lineup should have asked the victim to describe in her own words how sure she was that the man in the photo was the perpetrator, and all of the photos in the array should have been similar (so that the victim didn’t rule out several of them immediately). These are among the practices that have been shown to reduce the chance of incorrect identifications, based on social science research and best practices developed by police departments nationwide. Witnesses should be told that they will be asked to describe, in their own words, how confident they are in selecting a suspect, and they should also be told that the perpetrator may not be in the lineup and the investigation will continue if they are unable to identify someone in a lineup. Live or photo lineups should also be administered by an officer who does not know who the suspect is and who the “fillers” are. When live or photo lineups are administered by an officer who doesn’t know which photo is the suspect, the officer is not able to lead the victim into identifying anyone. ...

Before his arrest, McGowan graduated from Ryder High School in Wichita Falls, Texas. His photo was in the police system because of a minor traffic violation. While in prison, he took vocational courses and worked as a custodian. After his release, he plans to live in Dallas County with relatives.

In addition to Scheck and Kreag, Robert Hinton is co-counsel on the case. Cardozo School of Law clinic students Alisa Levien and Kristin McDermott worked on the case at the Innocence Project. DNA testing in the case was conducted by Orchid-Cellmark.

Innocence Project of Texas Executive Director Natalie Roetzel and Senior Counsel Jeff Blackburn will attend Wednesday’s hearing, along with several Dallas County men who have been exonerated through DNA testing in recent years.

SCOTUS lets executions resume

SCOTUS Blog lets us know that the US Supreme Court approved current lethal injections methods, allowing more executions to go forward, although "there was no opinion that spoke for five or more Justices." Because of the de facto moratorium waiting for the resolution of Baze, there are no executions currently scheduled in Texas, but I'd expect judges to begin lining them up soon. TDCJ keep an updated list of scheduled executions here, where that information will become available as judges begin to re-set pending death sentences.

Because of the Baze moratorium, I'd predicted at the beginning of the year that Texas would witness more exonerations of innocent people this year than it would executed death sentences. We'll soon see if that'll be the case. Another exoneree will walk out of court today proven innocent after more than 20 years, so we've definitely not seen the last exoneration. But I won't be surprised to see Texas judges playing catch up pretty fast on the capital punishment side.

See additional lethal injection related coverage from both SCOTUS and the states at the Stand Down blog. ALSO: Doc Berman says the Baze opinions have a little something in them for everyone, and predicts the decision's real impact is a victory for federalism that won't be felt until states begin fleshing out their individual interpretations

Hearing to discuss phasing out TYC

This morning we should get a lot more detail on Sen. John Whitmire's plan to abolish or phase out the Texas Youth Commission.

The Joint Select Committee on Texas Youth Commission Operations and Management will meet today at 10 a.m., and the online live feed for the event will be here once it begins.

I've got a doctor's appointment so I'll miss much of the hearing and have to listen to the archived video once its done. But anyone who does attend or watch online should use this post as an open thread to discuss what's going on.

When DNA exonerations end, innocence problems will continue

Well, light posting turned to no posting as I spent an exhausting couple of days at the 3rd Annual Texas Innocence Conference, from which I returned last night. (The drive, more than the event, is what did me in.) I'll have writeups from my notes over the next couple of days, but let me start the review with a few comments and big-picture thoughts.

Proximo over at Dallas Sidebar (who I enjoyed meeting and putting a face to a pseudonym) offers his take on the conference, which he considers a positive development. Proximo disputes higher estimates of innocence claims, though he grants (and it'd be hard not to), that thanks to revelations about innocence, the system has "suffered some measure of disgrace."

I concur with Proximo 100% that most people in prison are guilty of whatever they were accused of, although I think the percentage is a little lower among probationers, since DA's plea out their weaker cases, and innocent defendants have a big incentive to take a plea to avoid prison. But anyone attempting to estimate the number of innocent people convicted, whether on the low or high side, believes that SOME innocent people are convicted, so that agreement allowed cops, prosecutors and the defense bar at this conference to all start with that bit of common ground and discuss the more important question: Why?

DNA exonerations have allowed us to go back and look at why these cases happened, and it would be a travesty if the state of Texas did not seize the opportunity to fix some of the most prominent causes

• Faulty eyewitness identification
• Failure to check alibis or corroborate victim testimony
• Faulty testimony by informants looking to cut a deal
• Crime lab failures and forensic pseudoscience
  
• False confessions based on coercive interview techniques
• "Brady" violations (failure by prosecutors to turn over exculpatory evidence)
• Ineffective assistance of counsel
  

To me, whether the number wrongfully convicted is low or high, when patterns emerge in HOW people were wrongfuly convicted, those problems still deserve to be fixed. In addition, testimony from exonerees and their lawyers showed that the procedural barriers for challenging convictions may be too high, since legitimately innocent people for years couldn't get into court to challenge what had happened to them before DNA testing burst the dam.

The modern "innocence" movement began because DNA evidence allowed investigators to go look at old cases and actually prove to a certitude that the jury got it wrong. Though DNA exonerations will continue to dominate the news for a while (another innocent man will walk out of a Dallas courtroom this afternoon after 27 years in prison), the number of DNA exonerations will decline in the coming years, predicted Jeff Blackburn of the Innocence Project of Texas, because most counties outside Dallas have not maintained historic DNA evidence, so innocents convicted there won't have the same tool to prove they didn't commit the crimes alleged against them.

That won't mean, though, that the system no longer convicts the innocent, only that the unique window into historic truth provided by DNA will no longer be available. DNA evidence exists in only about 10% of violent crimes, according to forensic expert Dr. Bill Tillstone whose talk I'll discuss at length soon, and in most old cases that evidence has been destroyed. So in 90% of violent crimes and most most other prosecutions, that avenue simply isn't available for someone to prove their innocence.

I was disappointed that no one from the Texas Legislature attended the event (though a couple of Court of Criminal Appeals judges were there - they funded the conference with a grant). Last session the House Criminal Jurisprudence Committee, which covers most of the issue areas discussed at the conference, turned into a killing field for innocence-related bills. I doubt those legislators would be so quick to dismiss the topic if they'd heard the detailed expert critique of the system presented at this event.

Finally, I left the conference with the growing impression that police officers and prosecuting attorneys may be poorly represented by their lobbyists at the Texas Legislature. I had the chance to talk to many ADAs, investigators, and cops at the event, and the common theme from all of them regarding everything from lineup procedures to an "open file" policy was, "just tell me what the rules are, and I'll follow them."

By contrast, speaker Jim McLaughlin from the Texas Police Chiefs Association parroted the line that his group, police unions and prosecutor lobbyists at the Lege have maintained since the DNA cases started cropping up: Don't change any laws or procedures, just give us more resources (i.e., money) and we'll do a better job. Not only is that not good enough in the face of evidence of obvious flaws leading to convicting innocents (e.g., the evidence is very strong that existing police lineup procedures encourage bias), it doesn't represent the views of law enforcement officers I spoke to who thought it'd be fine to change the laws to make the rules more fair.

Off to "innocence" conference in Plano

Thanks to a last minute invite by the Innocence Project of Texas, I'm pleased to be able to attend Texas' 3rd annual "innocence" conference, titled Actual Innocence: Establishing Innocence or Guilt. I'll be getting up bright and early tomorrow to drive to Plano for the event, which will be running on Monday and Tuesday. There's no registration fee for:

• Texas judges and their staff;
• Texas defense lawyers who regularly represent defendants;
• Texas prosecutors and their staff;
• Texas law enforcement officials and forensic professionals; and
• Texas law students who are involved in Innocence Projects.

Topics under discussion will include "DNA 101" and "DNA 102" evidence preservation, eyewitness identification, and non-DNA forensic issues. Early registration is closed, but anyone interested can register at the door. I'm looking forward to the event (though posting on Grits may be a bit slow while I'm gone).

Lots of substantive Eldorado coverage

Since I've been writing so much this week about the raid on the polygamist compound in West Texas, I'm pleased to see a great deal more substantive coverage popping up than the initial reports parroting law enforcement sources.

For starters, ABC News had a good series of pictures from inside the compound, complementing nicely the excellent photography by Trent Nelson. In addition, here are a few recent stories casting additional new light on the controversy:

I'd not heard of Salt Lake City Tribune reporter Brooke Adams before a week ago, but I've quickly become a big fan. She continues her excellent coverage, both on her blog, The Polygamist Files, and reporting for the Tribune, including news that "Texas authorities confiscate cell phones of FLDS women at Fort Concho." Hmmmm, and I thought a big part of the criticism was that FLDS cut these women off from the outside world; I guess now Texas state government has assumed that role. Another SLC Tribune piece Adams co-wrote that's well worth reading: "Polygamy: Where religious liberty ends."

Adams had been the only reporter to focus significantly on the perspective of the people who've been removed from the ranch, for example in her story, "Texas bishop, doctor: FLDS women, children say 'they want to go home.'" We get another window into the perspective of women and children seized from the YFZ compound in a letter they sent to Gov. Rick Perry, described in a report by AP: Sect mothers appeal to Texas governor.

Perhaps Adams' most important contribution to story overall was to figure out very early on that the man named in the allegations actually lived in Arizona and almost certainly could not be the perpetrator. It took a full week, but Texas law enforcement has finally caught up with her assessment, see the Salt Lake City Tribune: "Texas Rangers say Barlow may not be their man."

So they still haven't found the 16 year old who supposedly made the accusations. Adams' pointed out early on that the language she supposedly used didn't match FLDS rhetoric, and identified other incongruities with the call. Now we learn that a similar call was received regarding the FLDS compound in Colorado City, AZ, but authorities there did not believe they had authority to do what we did here in Texas, see the Arizona Republic: Colorado City CPS phone call resembles one in Texas - One led to raid, one didn't.

In addition, a story today in the Corpus Christi Caller Times, "Utah lessons applied in Texas" (April 13), makes most explicit declaration yet that changes to Texas law were intended explicitly to target FLDS.

"It's very poorly and awkwardly drafted," said John Young [an attorney representing an alleged polygamist in an ongoing Texas court case], "with two different penalty ranges for the exact same conduct." ...

[DA Association lobbyist Shannon] Edmonds said some of the confusion in the bill stems from the way it was passed. Hilderbran initially wrote it as a stand-alone bill that directly targeted the Eldorado sect, which began building a retreat in Schleicher County in 2004.

The original bill included language that would prevent new Texas residents from running for office within a year -- a provision aimed at preventing the sect from taking over local government offices and law enforcement agencies as it did in two neighboring cities, Colorado City, Ariz., and Hilldale, Utah.

Hilderbran's bill was never scheduled for a vote in the House, and with the legislative session coming to a close, he took provisions dealing with polygamy and teenage marriage and inserted them into an overhaul of the Department of Child Protective Services that was pending in the Senate.

So here's where we stand. The laws the sect are accused of violating were expressly created to target their religious practices. The raid was based on a phone call that may turn out to be bogus. No victim has been identified, and the man alleged to have abused her we know for a fact could not have done the deed. Finally, at this point it's the state, not men from the sect, who are isolating these women and children.

Stay tuned ... this thing is a long way from over.

See Grits' comprehensive coverage gathered here.

UPDATE: Jim Turner at ConchInfo adds his thoughts.

Not so fast: Locals not all onboard with shifting TYC role to counties

While earlier coverage cited broad support, apparently not everybody has signed off on Sen. John Whitmire recent proposal to "abolish" the Texas Youth Commission, reports the Waco Tribune Herald ("Local officials dismiss talk of abolishing TYC," April 13):

Although no hard numbers have been shared, Whitmire told the Chronicle the state could spend about half as much money as the current system by keeping all but the most violent youth in their local communities.

Rep. Jim Dunnam, D-Waco, a member of the House Corrections Committee, has an opposite view on the cost. Decentralizing, by its nature, would be more expensive because the agency currently is able to cut down on costs by consolidating specialized services at certain TYC units, he said.

“Asking each county to individually do this, frankly, can’t be the most efficient way to do this,” Dunnam said. “Our goal at TYC is to rehabilitate the youth, not to just house and punish them. To do that requires services specific to that juvenile offender.”

Bobby Campos, director of McLennan County’s juvenile justice center, said abolishing TYC would be a “knee-jerk reaction” to the sexual abuse scandal and cover-up that racked the agency last year. He said TYC’s specialized services are key to treating offenders who often suffer from mental health and substance abuse issues.

“We really need institutions and qualified and professional experts to deal with these kids,” he said. “There are not many services for kids that have mental health issues (at the county level).”

For offenders housed at county juvenile centers, the cost of contracting for such services can be exorbitantly expensive, Campos said. He cited the example of a single offender who cannot be sent to TYC because he has not committed a felony that has cost McLennan County more than $125,000 for various contracted treatment programs. ...

Dunnam said state leaders missed a huge opportunity last year when the public was demanding a series of reforms to the beleaguered agency. Lawmakers will have another chance during the sunset review, but abolishing the agency is not the solution, he said.

“I guess it sounds strong and bold to say we are going to abolish the agency,” Dunnam said. “But we aren’t going to abolish the kids, so the problem is not going to be abolished.”

This story confirms my intuition that "abolishing" youth prisons entirely will be a difficult proposition, and I'm glad to see folks talking about the real costs of treating these kids in community-based settings. I think that's a good idea, but not if it's being done so you can slash the amount of resources spent toward their care and rehabilitation.

Sen. Whitmire has cited TYC's $110,000 per child cost as evidence that the agency is wasting money. I already knew that number was somewhat artificially inflated because the agency received 98% of its previous biennium's budget, then cut the number of juvenile inmates nearly in half under the previous executive director. But the McLennan probation director's experience with the costs of community placement shows that the state can likely expect to spend more money, not less, to implement a community based strategy.

I'm fine with that, and even think it's a superior approach from the perspective of reduced recidivism and public safety. But I hope proponents of TYC's "abolition" don't continue to undersell the costs of doing what they propose.

Travis County moving toward "banning the box" to boost ex-felons' employment

I'm quite proud of County Judge Sam Biscoe and Travis County officials for their visionary proposal to remove criminal history questions on most county job applications, a move designed to make it easier for ex-felons to find employment.

The idea has been termed "banning the box," meaning simply removing the query from the initial questionnaire, saving a criminal background check until later in the hiring process so they're not as readily excluded from the hiring pool. Reported the Austin Statesman ("County may ease barriers to hiring ex-convicts," April 12):

Sometime in the coming weeks, Travis County commissioners will likely remove the question on county job applications that asks, "have you ever been convicted of any crime?"

That question would be asked later in the interview process. The commissioners say they hope the change, intended as much for its symbolism as its practical effect, will remove a red flag that can cause managers to immediately toss an application in the trash.

"We're weeding them out before they have a chance to show their skills," said County Judge Sam Biscoe, chairman of the Commissioners Court and chief proponent of a new county policy. "It's my guess we're losing a lot of good applicants."

Other local governments, such as Williamson County, say such a change wouldn't have a meaningful impact there and have no plans to follow suit.

Many experts have concluded that finding work is key to ex-convicts becoming productive members of society. But those experts say many have difficulty because of the stigma of a criminal record.

Biscoe said the county change is a necessary precursor to persuading more businesses to hire ex-convicts and creating proposals for housing and drug treatment programs. Last year, the county started an "offender re-entry program" by hiring a coordinator to oversee those efforts.

Although similar government-sponsored efforts have yet to catch on at the local level in Texas, they follow job placement programs the Texas Department of Criminal Justice has been running for state prisoners for two decades. Other communities across the country have established similar programs.

One idea is "banning the box" about criminal history from job applications. What effect that will have is unknown. In 2006, San Francisco became the first community to make the change, and at least seven large cities have followed suit, according to advocacy group Safer Foundation. Those communities report anecdotal success but little data.

Biscoe said he wants the change because many county departments, and many employers in general, are reluctant to hire applicants convicted of crimes, whether they robbed a liquor store five ago or were caught with cocaine in the 1980s. A 2006 report on re-entry into society by the Urban Institute, a think tank specializing in social policy, reached a similar conclusion, stating that "employers consistently and legally discriminate against applicants with a history of incarceration."

This climate, Biscoe said, shrinks the labor pool without taking individual circumstances into account.

Chicago had similar concerns. In January 2007, it removed "the box" from its job applications. Angela Rudolph, an assistant to Chicago Mayor Richard Daley, said that in 2007, 236 ex-convicts applied for jobs. One-hundred eighty were deemed the best candidate and hired.

The city can't compare that with previous years because it didn't track the statistic before 2007, but Rudolph said it's an encouraging sign that will be vetted as part of an overall analysis of re-entry programs the city is about to start.

This is an idea where I'd imagine other jurisdictions will take a wait and see approach to see how "banning the box" works for Travis County, but to me it's an exciting development with concrete benefits for communities that adopt it. Not only should the City of Austin and other jurisdictions follow suit, when the Legislature meets next year they should seriously consider requiring the change, where appropriate, for most state and local government agencies.

RELATED: Transportation, Employment and Re-entry

Lawyer: Public defender in Harris County way overdue

The Houston Chronicle this morning published an excellent letter from a local attorney in support of creating a public defender office in Harris County:

As a lawyer, I read the story about Commissioners Court funding a study whether a public defender's office in Harris County is needed and feasible with great interest. (Please see "Public defenders office to get close look," Page B3, Wednesday.) I have accepted very few court appointments to represent indigent criminal defendants over the years; the system simply doesn't work. Each judge has his own rules, and with 37 full-time criminal judges, there are 37 different sets of rules. There is no uniformity, and there have always been stories about questionable appointment arrangements.

A number of attorneys make their entire living accepting appointments. I know of a lot of very good lawyers who take appointments regularly and do a good job, and a lot are quite capable but are just burned out and won't represent their client with the zeal required by the Cannons of Ethics because an appointed lawyer is lucky to get 20 percent of the going rate. The perception of court-appointed lawyers is so bad, the inmates in the Harris County jail would rather have virtually any free-world lawyer, a perception that is frequently not true but widely accepted regardless.

I stopped seeking appointments years ago after I was asked, and accepted, a county court coordinator's invitation to be their attorney of the week. At the time it paid $200 a day as a flat rate without regard to whether there were no clients or five clients. The coordinator, a good friend, told me that if I could not talk the inmate into pleading guilty, I would have to withdraw, and the judge would appoint one of her law school friends to "try" the case. He told me in no uncertain terms that if I set a case for trial, it would be my last appointment.

To my knowledge, no indigent inmate in that court ever received a jury trial. Fortunately, that particular judge was defeated in the next election cycle.

If a public defender system is established, a lot of lawyers who make their living doing nothing but appointments will either have to retire, work for the elected/appointed public defender or go back into the trenches like most criminal defense lawyers. If the public defender is on par with the experienced lawyers in the district attorney's office, then the cases will move through the system quicker, cheaper and with the Texas constitutional guarantee of a fair and speedy trial.

Harris County is way overdue for an overhauling of the way poor people are treated when accused of a crime.

PETER G. HECKLER, Houston

RELATED:

• Proposed Harris County study will likely predict substantial savings from public defender office
• Rodney Ellis stumping for Harris County public defender

History and biology cloud debate over Eldorado marriages

History and biology conspire to muddy the raging conflict between moral absolutes in the controversy over the Eldorado polygamist compound, posing complex, hotly contested questions with few simple or pat answers.

If you believe (absolutely) that women should be independent, free to choose from a range of paths in life, educated side by side with men, and encouraged to seek own fulfillment as individuals, then it's likely most Americans today agree with you, and disagree with how FLDS members are raising their kids. Any honest historical observer, though, must grant that Americans from our not too distant past would be astonished at such feminist effrontery.

If you believe (absolutely) in a very traditional line of Christian values (and don't forget FLDS theology is rooted in Christianity, with the addition of Joseph Smith's improbable canon), you may well believe that St. Paul's admonition, "wives, submit to your husbands," means that women should marry, have children, and support a man who shoulders the responsibilities of the world - not so different from what the FLDSers believe.

Indeed, it's worth mentioning that the biblical case for polygamy is longstanding and well-founded. The first example of polygamy in the Bible occurs early on, in Genesis 4:19, when "La'mech took unto him two wives: the name of one was Adah, and the name of the other Zil'lah." But the Old Testament, in particular, is rife with examples of the practice.

Most Christians and certainly Jews are perhaps more familiar with Abraham, the patriarch of Judaism and a much-revered icon in the Christian pantheon. Abraham was an elderly polygamist who not only married much younger women himself, but arranged the marriage sight unseen between his 40-year old son, Isaac, to Rebekah, a virgin (described in the KJV as a "damsel") still living with her parents who was so young she could not travel without a "nurse." (See Genesis 24)

Isaac's wedding ceremony to Rebekah was described in the King James Version thusly: "And Isaac brought her into his mother Sara's tent, and took Rebekah, and she became his wife; and he loved her" (Gen. 24:67). Perhaps that's what's meant by a "spiritual marriage?

To FLDSers and many Christians, the fundamental purpose of marriage is procreation (if not, e.g., then there's no good reason that gays shouldn't marry), and any fool can see that God decides when girls enter their child bearing years, not Harvey Hildebran nor the Texas Legislature.

Other religions contain theologically legitimate (if legally and ethically problematic) endorsements of both plural marriage and marrying very young girls. According to Wikipedia, "Both polygamy and polygyny were practiced in ancient, medieval and early-modern times among many sections of Hindu society."

The prophet Mohamed famously married a 12-year old bride who bore him many children (along with his many other wives), and an estimated 1-3% of Muslims worldwide continue to live in plural marriages. These examples show it's incredibly difficult to separate the controversy over polygamy from religion.

Part of my reaction to this debate reflects my discomfort when I hear people (often from the liberal end of the spectrum) claim that those they view as "victims" have been "brainwashed" by their religion into a belief system that oppresses them. Perhaps so. But another word for brainwashed is "convinced."

Is it actually "child abuse" for an older man to marry a 16-year old without parental consent, or a 15-year old WITH the parents' permission? Legally, yes. Historically, well, that's a pretty new definition. In the United States, "As late as 1930, twelve [American] states allowed boys as young as 14 and girls as young as 12 to marry (with parental consent)."

Over the last century, the legal marriageable age worldwide has increased. Texas' recently increased marriage age (16, with parental consent) isn't that far out of line with many other states and nations. But it was only in 2005 that Texas banned marriage for 14 and 15 year olds with parental consent, and that decision was aimed directly to facilitate prosecuting religious practices by FLDS.

Ironically, leaving aside for a moment the FLDS controversy, supporters of Rep. Hildebran's law boosting Texas' marriage age find themselves actively encouraging thousands of teen pregnancies outside of wedlock - in practice, at least, if never rhetorically. In 2002, more than 17,000 girls aged 14 or under became pregnant nationwide (see this report from the Guttmacher Institute, pdf, p. 9). More than a quarter million American girls aged 15-17 became pregnant that same year (p. 7)!

Why shouldn't a pregnant girl who's chosen to keep her baby be allowed to marry the father with her parent's consent? That seems like a bad law on its face. Other than persecuting FLDS, why would Rep. Hildebran want his name on a bill that expands the number of unwed teen mothers?

On the other hand, today we know from an accumulating array of brain science that young people haven't fully developed their cognitive abilities to consistently make wise or rational judgments. Similarly, the rise of the women's rights movement in recent decades has expanded options for women beyond early marriage and frequent pregnancies. These two, modern developments cast an especially harsh light on the centuries-old practice of polygamy and marriage for teenage girls.

There has always been a tension, though, between religion and science, not to mention between modern, post-feminist sensibilities and the views of more traditional, religious women. And these FLDS women (and their girls) are about as traditional as they get. Do they have a right in America to cling to historic religious views and traditions that most of society thinks are "obviously" wrong? That's what this case will tell us by the time it's complete, and IMO the nation will benefit from a national conversation on the topic, if it's an honest one.

I've predicted this case will ultimately bog down with few if any convictions for child abuse, and beyond the legal technicalities, the reasons are precisely because of our nation's ambivalence over sexual politics, where our present ideals remain mired in an often misogynistic past.

Over the last century, the legal marriageable age worldwide has increased. Texas' recently increased marriage age (16, with parental consent) isn't that far out of line with many other states and nations. It was only in 2005, though, that Texas banned marriage for 14 and 15 year olds with parental consent. That decision aimed directly to target religious practices by FLDS, who many locals would like to drive out of the area using the machinery of the state, though such cases are notoriously difficult to prosecute.

Plural marriages among consenting adults continue to be tolerated in Utah and Arizona, in part because they could never build enough prison space to house them all, and in part because state's attorneys fear enforcement efforts might not pass constitutional muster.

Today we know from an accumulating array of brain science that young people haven't fully developed their cognitive abilities to sufficiently to make wise or rational judgments. Similarly, the rise of the women's rights movement in recent decades has expanded options for women beyond early marriage and frequent pregnancies.

There has always been a tension, though between religion and science, not to mention between modern, post-feminist sensibilities and the views of more traditional, religious women. And these women (and their girls) are about as traditional as they get.

Instead of focusing on allegations against individuals, the Eldorado raid has used sparsely supported allegations of child abuse to launch a large-scale clash of cultures and religious beliefs, which will now be played out in the criminal justice arena - exactly what the authors of the First Amendment to the US Constitution hoped to avoid.

The Eldorado case reinforces to me once again the brilliance of the founding fathers' decision to separate the power of the state from the hysteria surrounding religious absolutes. I wish our modern leaders demonstrated equal wisdom.

RELATED: Grits' Eldorado Roundup

Road to Eldorado paved with bumpy moral, constitutional questions

Is the raid on a polygamist compound in Eldorado about religious freedom or criminal child abuse? From the information revealed so far, I think the most honest answer must be "Both, and more."

Over at StreetProphets, some Christian pastors are starting to take a closer look at what's going on in the Eldorado raid. Quarkstomper views the case through the prism of his own religion's often misogynistic history:

I really don't know what to say about it. The evil that has come out in the reports about the Eldorado branch of the Fundamentalist Church of Jesus Christ of Latter-Day Saints is so vile that anything I could say seems inadequate.

But I can't help but feel shame as well. Nearly all their practices are extensions of doctrines and practices preached in some mainstream churches. (emphasis added)

My wife left the church long ago because she felt alienated by the attitudes towards women in the Catholic Church she grew up in and other churches. As far as she's concerned, all religions have the same attitudes as this group in Texas; they just aren't all as blatant about how they control women.

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.

Quarkstomper's wife would advise mainstream Christianity to take the beam out of its own eye, in other words, so then it may see clearly to remove the mote out of its FLDS brethren's.

In response, StreetProphets regular Pastordan wrote a thoughtful post that expressed discomfort with the widespread presumption of guilt against all FLDSers with little factual basis:

it is worth asking how outsiders know there's something wrong, and whether that knowledge is as based in evidence as they'd like to think. And while we all might agree that your rights end at my nose, do they end when I have a hunch they're on my nose?

He linked to Grits, suggesting I might have overstated concerns about the constitutionality of Harvey Hildebran changing marriage laws specifically to target this sect, even though he agrees:

that an adjustment in the Texas age-of-consent law appears to have been aimed specifically at the FLDS. [Henson] thinks that means it won't pass the separation test. I'm not so sure. A lawyer friend says (tentatively) that if the law was indeed targeted at a single group, the government would need to demonstrate that it had a compelling interest in doing so, and carried out it in the narrowest possible way. Which is to say, they had to do it, and they caused the least burden they could while they did so. That's typically not a problem in such a case, and I don't see it being one here.

Furthermore, there are some recent cases that indicate that the government can establish religion-neutral regulations which primarily affect a single religious group. We'll have to see how those hold up on appeal.

For the record, I never said the law clearly doesn't pass the separation test, only that it "may not" do so (regular readers know I'm not an attorney) and IMO deserves to be challenged on those grounds as part of the process. That said, the courts have created many loopholes to get around enforcing every individual right enshrined in the US Constitution, and the supposedly absolute protections for religious freedom in the First Amendment are no exception. It may well be that those rights have become so degraded and meaningless that, as Pastordan's attorney friend implies, getting around them is no longer any big deal.

Interestingly, the case on appeal Pastordan mentions, the one which may set precedent regarding the state's ability to enforce "religion-neutral" regulations targeting a specific sect, is also a Texas case from Euless (and a recent one), where a Santeria priest has been denied the right to sacrifice a goat on his own property, despite the fact that municipal codes allow butchering of deer, chickens, and other "tablefare."

Meanwhile, the blogger at Oak Leaves wonders about the difference between Texas' reaction to FLDS and that in Arizona and Utah, declaring:

The question nobody is asking: does the fact that there are more Mormons in Arizona and Utah make a difference? Are non-polygamous Mormons in law enforcement going to look more kindly upon their “separated brethren” who practice the original teachings of the faith?

Indeed, the corollary question no one is asking: Does the fact that FLDS' West Texas neighbors are mostly Christians who're hostile to all religions descended from Joseph Smith explain the sweeping guilt-by-association approach to enforcement in Eldorado? To what extent are activities tolerated in Utah but prosecuted in Texas because the defendants are more isolated and enjoy less (latent) political support?

I think the subjects merit a lot more honest discussion among both religious leaders and constitutional scholars. The answer lies at the crux of the debate over whether the Eldorado raid is religious persecution or legitimate law enforcement.

RELATED: Grits' Eldorado Roundup

TYC in the News

Here are a few newsclips regarding the Texas Youth Commission that cropped up this week while I was paying more attention to the Eldorado fiasco:

• McAllen Monitor: New settlment tackles reforms for Evins youth detention center

• Amarillo Globe News: State Sen. Kel Seliger: Change is coming to Texas Youth Commission

• The Daily Texan: Senator calls for 'phasing out' of youth commission

• Lufkin Daily News: Starting over with state's young offenders

• Waco Tribune Herald: Offenders need bridge to normalcy

• Corsicana Sun: Former state home head passes
  

Meanwhile, late last month, for the first time since Dwight Harris resigned as executive director a year ago, TYC published an actual organizational chart (pdf) to describe who works for whom at the agency. It may seem like a small thing, but that's a significant step forward given last year's management chaos.

Eldorado Roundup

I've got a feeling Grits will have much more to say about last week's DPS raid on the Eldorado polygamist compound, but for convenience sake I wanted to round up Grits' coverage so far (in order of publication) and point readers to several other key web resources on the topic.

• Big Love in West Texas
• Search warrants for polygamist compound may be invalid
• Is History repeating itself with raid on West Texas polygamist compound? Eldorado incident recalls 1953 "Short Creek" raid
• Will Eldorado case expose overwhelmed CPS system?
• Officials, lawyers, scrambling to handle biggest family law case in Texas' history
• Road to Eldorado paved with bumpy moral, constitutional questions
• History and biology cloud debate over Eldorado marriages
• Lots of substantive Eldorado coverage
• More law blawggers need to weigh in on West Texas polygamist case
• Too many unanswered questions plague Eldorado polygamist case
• After all the hoopla about "child brides" ...
• Phone call alleging abuse at polygamist ranch was fake, can the kids all go home now?
• Eldorado reflections
• BTW Judge, we found 21 extra kids; now CPS says 437 FLDS youngsters in custody
• Searching for principled voices in the Eldorado raid
• I hate to say I told you so, but ... FLDS search warrant now called "shaky"
  

You can all see the official chronology of events and other related information on the state Department of Family and Protective Services website.

Cicero at Red State, parses through CPS' court arguments and compiled an excellent "Appendix" including links to resources, news reports and some primary documents.

Also, here are some of the important blog sources I've been watching regarding the Eldorado polygamist raids:

• The Polygamy Files
• Introspection of a Plural Wife
  
• Messenger and Advocate
• Trent Nelson, Photojournalist
• Feminist Mormon Housewives
• The Common Room
  
• Texas Polygamy
• PolygTalk
• Prairie Fire Journal
• FLDS Children Have Right to Breast Milk
• FLDS.ws
  
• CaptiveFLDSChildren.org
  

If you know of other blogs that are tracking this closely, let me know. I've got a feeling all this is going to drag on for a while.

Finally, just to have mentioned it, Salt Lake City Tribune reporter Brooke Adams, who also writes The Polygamy Files (mentioned above) has been reporting circles around the 20 or so Texas reporters assigned to this story from various media, along with her sidekick photojournalist Trent Nelson. If you want to know what's going on, read their stuff. Both appear well-connected in polygamist communities, and exhibit a deep understanding of the subculture they're writing about and its history. Their published reports, both in the Tribune and on their blogs, have consistently broken stories all other media missed. They typically even seem two or three days ahead of police investigators (and counting).

I couldn't have been more pleased to discover Adams' writing, and learned a great deal recently going back to read some of her old clips.

Last updated April 22.

Officials, lawyers, scrambling to manage the biggest family law case in Texas history

"Tom Vick is looking for about 100 lawyers willing to volunteer for what likely is the biggest family law case in Texas history," reports Texas Lawyer's John Council in an excellent article on the behind-the-scenes wrangling to gear up for the removal hearings for 400+ kids from the YFZ ("Yearning for Zion") compound in Eldorado. "The removal petitions CPS filed on April 7 will test the state’s civil justice system in an unprecedented way because of the sheer volume of litigants."

Vick is seeking the names, addresses and phone numbers of family lawyers willing to volunteer as ad litems in the CPS removal actions. The case is so large that the 120 lawyers in San Angelo, the city with the most attorneys near tiny Eldorado, can’t possibly handle it, Vick says.

Vick serves on the Access to Justice Commission, which was created by the Texas Supreme Court to address the legal needs of the poor. Vick says he began gathering the names of lawyers at the request of Emily Jones, the executive director of the commission.

“The court’s not ready to appoint lawyers yet,” says Vick, a member of the State Bar of Texas board of directors and a former chairman of the Bar’s Family Law Section. “We’re just trying to amass an army, so when we’re called upon we’ll be ready to do the job.”

There's a shortage in particular of attorneys with ad litem experience, TL reports. "While there are thousands of family lawyers in Texas, not all of them have ad litem experience. The Texas Family Code requires that lawyers have continuing legal education training before they represent children as ad litems in family court cases."

Like the CPS system, the civil courts may not be prepared for the onslaught of handling these cases all at once. Supreme Court Justice Harriet O'Neill lamented that removal cases “are in our courts in Texas every day. And our courts don’t have the resources we need” right now.

Indeed, even local clerk's offices aren't equipped for the task. According to Office of Court Administration chief Carl Reynolds told Council that:

Schleicher County’s small district clerk’s office is not equipped to handle the volume of motions expected to be filed related to the FLDS removal cases. So he’s working on an agreement between Schleicher and Tom Green counties so that the Tom Green County district clerk’s office can process all of the motions related to the litigation.

“Tom Green County has e-filing, and Schleicher County does not, and we need a special agreement to make that work,” Reynolds says.

This is just a taste, anyone interested should give the whole thing a read, and if you're a qualified attorney who wants to help, by all means please contact Mr. Vick.

NYPD becomes largest US department to require random steroid testing

Having posed the question last year whether it's more important to test police officers for steroids or high school athletes (Texas chose the high schoolers), I was interested to learn that the New York City police department will be adding steroids to its drug testing regimen.

The NYPD steroid scandal caught my attention earlier via an odd forensic twist that still doesn't sit right with me. The pharmacist/informant in the case who ultimately helped finger all these steroid using officers was found shot to death in January. His case was ruled a suicide, despite "gunshot wounds to the chest and head." Maybe it's possible, but I continue have trouble imagining the suicide sequence that results in shots to the "chest and head." I guess if you're a REALLY bad shot ...

In any event, the case where the pharmacist would have testified may still result in several officer terminations, but no prosecutions, reports the New York Times ("Police department to start routinely testing officers for steroid use," April 10). One hopes, though, that the new testing regimen will generate some good out of the tragedy:

As investigators looked into the dealings at the Brooklyn pharmacy, Lowen’s, an old-fashioned neighborhood drugstore in Bay Ridge, they said it had expanded into major transactions of steroids and growth hormone.

The investigation into Lowen’s uncovered 19 officers who had been prescribed steroids, police officials said. That investigation was part of a larger inquiry into the illegal underground steroid industry. Steroid scandals have touched the sports and entertainment industries, exposing vast distribution networks for the illicit bodybuilding drugs.

Of the officers implicated in the Lowen’s raid, six tested positive for steroid use, Mr. Browne said. Five of them have been suspended without pay and are facing departmental trials that could lead to their dismissal, he said. The sixth was put on modified duty.

While steroids may not be perceived as being as dangerous as recreational narcotics, Mr. Browne said they are just as problematic for officers who do not have proof of their medical necessity.

An internal memo was sent to all police commands on March 26 warning that using steroids for “bodybuilding and/or body enhancement” is not a legitimate medical use. “The demand for anabolic steroids caused by their continued use in bodybuilding and body enhancement activities creates an illegal market for these substances that is supported through organized crime,” the memo said.

It said that steroid use can seriously impair a person’s health.

The memo reflects the growing concern — among law enforcement agencies and the public — about the use of steroids and human growth hormones, particularly by athletes.

The International Association of Chiefs of Police, the nation’s oldest and largest group of law enforcement executives, published a policy review about steroid use among officers in 2005, said Wendy Balazik, a spokeswoman for the association.

Police officials in other cities said steroids was a topical issue.

While firing them is a big deal, after recent prosecutions of athletes, I notice that authorities don't plan to pursue perjury charges against officers who earlier misled investigators. I think that's the right decision, actually, I just wish it were applied equally by the feds when the defendant is capable of drawing a large number of television cameras.

Let's face it, not even baseball fans seem to care if professional athletes juice. "Steroids Era" or not, major league baseball continues to set attendance and profit records, and the sport is more popular than ever.

But so long as steroids are illegal, everyone should care if police officers juice. It's not just the possibility of affecting their behavior and judgment (so-called "roid rage"), but because officers must engage in black market activities and expose themselves to implicitly corrupting influences in order to obtain the illegal drugs.

Every officer who uses steroids or other illegal drugs is a potential blackmail target waiting to happen. Such a scenario inherently invites corruption, placing the officer's career future in the hands of a criminal who could easily demand favors or threaten to rat.

If I had my druthers, the 81st Texas Legislature would take all the money its wasting testing high school athletes for steroids and create a grant program for police departments that want to do so. In New York, at least they seem to have their priorities straight about which group is more important to test first.

Drug cartel charity giving secures goodwill among Mexican public

Reports like this one from Mexico me think the drug traffickers understand better how to win support from local communities than the corrupt Mexican government. From the San Diego Tribune ("Bishop: Drug gangs building churches," April 6):

Violent drug gangs in Mexico, which kill thousands of people a year, fund the building of churches in impoverished villages to try to win over locals, a senior Catholic bishop said.

“They are very generous,” Bishop Carlos Aguiar told a press conference, Reforma newspaper reported Saturday.

Aguiar, who heads Mexico's Catholic bishops' conference, said drug traffickers pour money into poverty-stricken towns where the government lacks funds to build roads or provide electricity.

“The drug smugglers build things that mean a lot for these communities,” he said. “Many times they will build a church or a chapel.”

Aguiar said the Church does not condone drug trafficking and tries to use its influence to get gangsters to leave the trade.

“I'm not justifying it, I'm just saying how it is,” he said.

Will Eldorado case expose overwhelmed Texas CPS system?

To put it bluntly, it's unlikely the children from Eldorado who have been taken from their homes will end up better off if they are dumped into Texas' overtaxed Child Protective Services (CPS) system.

Regardless of your thoughts on polygamy or the arranged marriage of teens, information dribbling out past the supercharged headlines in West Texas indicates that the 400+ kids seized by the state this week were well cared for. Can Texas' foster care system, frequently in the headlines for its own failures, promise the same?

Child services workers in Utah have a lot more experience than in Texas dealing with polygamist communities, so what do they have to tell us about what the Lone Star State should do with 416 children seized from the Eldorado compound in West Texas ("Scale of Texas' tough task unprecedented," Deseret News, April 9):

The scale of the decision by Texas child welfare workers to take 416 children into state custody dwarfs any endangerment response in Utah — or anywhere else for that matter.

Removing 416 children from their homes would be an overwhelming task for any state, local public and private child welfare workers said Tuesday.

Texas is literally warehousing the kids taken from the compound, although many had been placed with relatives in nearby towns.

One element in that case that may cushion the trauma for the children involved is their mothers are with them.

Texas Child Protective Services authorities have said they want to keep the mothers and children together as long as the mothers are willing to stay with the children.

This particular group of FLDS "operates in a sense as one, huge extended family," Richard Wexler, executive director of the National Coalition for Child Protection Reform, told the Deseret Morning News Tuesday evening. "A case can be made that taking away all the children is like taking away all of the siblings in a family where several children allegedly were raped and beaten.

"On the other hand, the facts don't always turn out to be as CPS alleges," he noted

Wexler, who keeps close tabs on child welfare agencies nationwide — including Texas and Utah — said Texas is particularly unprepared to take so many children at once.

"For several years, (Texas) has been going through a foster-care panic, with huge surge in removals in the wake of deaths of children "known to the system,"' he said.

Whether or not these children needed to be removed, their suffering has been increased because Texas has taken so many other children there is little room for these children in the system," he said. "And that is a lesson every state should remember."

An option like that or an all-out call for help is really the only option at that scale, local child safety advocates believe. They said while the welfare of the children in the case is clearly the top priority, they privately said they wonder if the move might be a kind of pre-emptive "better safe than sorry" strategy.

"I certainly agree that the way children — particularly young women and girls — are treated is de facto abuse or worse," one state Division of Child and Family Services caseworker said. "But from what I've seen these kids are in no way neglected; not nearly to the degree of some of kids we meet here and around Salt Lake."

The distinction that these kids are not poorly cared for in general lies in sharp contrast to many of the cases CPS sees. For the most part polygamist children in Eldorado are loved by their parents, not abused. The alleged abuse stems from a reinterpretation (the law was changed in 2005) of marriage laws in Texas specifically targeting this religious sect.

(As an aside, it strikes me as bizarre that in an age where the idea of changing the definition of marriage to include gay people generates such strident opposition, changing the marriage definition to target a specific religious sect seems to be entirely non-controversial. Irony, thy name is Eldorado.)

There's an arrogance in the state's decision to impose a group punishment for alleged acts by an individual against a victim who may not even exist. Again from the Deseret News (April 8):

State officials said the adult women are being sheltered as a courtesy to them and their children.

"These are women that wanted to come. They asked to come. They came voluntarily. They're free to leave anytime, but they have thus far chosen to stay," Meisner said.

Men at the YFZ Ranch are not allowed to leave their 1,700-acre compound while police investigators continue their search.

"We're controlling access to the ranch, in and out," Tela Mange, spokeswoman for the Texas Department of Public Safety, said Monday.

Even after the men are allowed to leave, they won't be able to see their children immediately.

"The men at this time don't have any right to visit their children at the shelter," Meisner said. A judge will have to decide later if visitation is appropriate.

So it's now a "courtesy" to let mothers stay with their children, but the fathers are confined to the compound and "don't have any right to visit their children." If the state had seized my daughter when she was a minor and placed me under house arrest, I'm sure my wife would have "voluntarily" agreed to stay with her, but it sure wouldn't seem very "voluntary."

The assumption here is that the state can and perhaps still will separate all these kids from their mothers, too, at any time (custody has already been transferred to CPS pending an April 17 hearing), which IMO would hardly be in the best interest of the child, especially in cases where no physical abuse is alleged, which is by far most of them. Ron in Houston was right when he declared in Grits' comments yesterday that "hell hath no fury like a social worker who thinks they're doing things in the best interests of the child."

And let's face it, CPS isn't the best-run state agency in Texas by a country mile. A 2004 House Research Organization publication declared (p. 2):

In its Forgotten Children report, the Comptroller’s Office found that the foster care system – a mix of state-run and outsourced services – faces many of the same problems as the abuse investigation area of CPS: too few case workers with insufficient experience to handle an increasing number of cases. In addition, the office found that inadequate licensing standards and lax enforcement of regulatory or contractual requirements allowed a wide array of living standards among foster homes.

These problems are still far from solved, and won't be helped in the least by this tremendous bump in caseload, if all these kids ultimately wind up in foster care.

Another question arises: Who will pay for all this? Under state law it should be the county, but they can't afford the cost of housing the kids (and the "courtesy" of housing their mothers), much less paying for all their attorneys. So state government is scrambling to pick up the tab (under what authority, I do not know).

Anyway, CPS may turn out to be the weak link in all this from a pragmatic perspective. It's one thing to seize the kids with media-hyped allegations, but quite another to separate them all from their parents and place them in foster homes with culturally dissimilar hosts. Regardless of the legality I doubt there's the money, staff or families willing or able to take such youth readily available, certainly not in a culturally competent fashion that will help the kids more than harm them.

SEE ALSO: Related Grits posts rounded up here.

Is History repeating itself with raid on West Texas polygamist compound? Eldorado incident recalls 1953 "Short Creek" raid

Most Texans are relatively unfamiliar with polygamy compared to folks in Utah and Arizona, so most of us have never heard of the "Short Creek" raid targeting the FLDS sect in 1953. But the tenor and tactics of the raid in West Texas have a familiar ring when compared to what happened there on the Utah-Arizona border a half-century ago.

The Polygamy Files, a blog at the Salt Lake City Tribune written by Brooke Adams focused on "the plural life," describes that incident 55-years ago and relates it to the raid in Eldorado:

I feel I am watching history unfold -- and repeat itself.

Allegations of child abuse/neglect and underage brides were raised way back in 1953 when Arizona authorities took over 250 women and children out of Short Creek, the community now known as Hildale, Utah, and Colorado City, Ariz.

They're being raised again now.

In 1953, Arizona authorities monitored the people for a few days in the community, feeding them in a chow line set up in a field, and then loaded them on buses for a long drive to Phoenix.

Women were allowed to stay with their children, but the men were separated out.

The women and children were kept in state custody for two years.

Can't say ''ditto'' yet, but it appears no one is going home any time soon. A spokeswoman said today that Child Protection Services has 30 days to finish its investigation.

And the state has already taken legal custody of 18 girls -- exactly why, no one is saying. Are the teens in danger of being married off? Are they pregnant? Have they been abused, neglect, deprived of an education?

The media corps, me included, are getting restless for specifics -- particularly from law enforcement.

Some people are describing this as a kinder, gentler action than happened in 1953.

I don't think that description works when you're talking about young children -- and there are hundreds of them involved here -- who've been taken from their homes and made to stay in a church hall or civic center and then military outpost, all in the space of three days. And they face the prospect of other moves to strange locales, too.

Adams is right that, from the perspective of the kids, what Texas has done in Eldorado won't seem kinder or gentler than the Short Creek incident 55 years ago. In Utah the Short Creek raid was seen as an iconic mistake that violated people's rights based on overhyped charges of child abuse. In the end, backlash against overzealous tactics made it more difficult after Short Creek to prosecute real incidents of child abuse among polygamists. That could easily turn out to be the case in Eldorado, given the scale of the overreaction.

It's been said that history repeats itself, the first time as tragedy, the second time as farce, and that saying IMO so far applies in this case. If history recalls the Short Creek raid as "tragedy," the Eldorado raid seems destined to be remembered as farce, albeit a tragic one.

Like Adams, whatever the authorities find as a result of the raid, "I hope it justifies all this."

RELATED:

• "The Lonely Men of Short Creek," Life magazine, September 14, 1953
• "A brief history of the polygamists in Colorado City, Arizona and Hildale Utah," Rick Ross, April 2002
  
• "The modern raid on polygamy," Brooke Adams and Pamela Manson, SLC Tribune, Aug. 21, 2005
• Photos from the Eldorado raid, Trent Nelson, photojournalist
  

Establishment candidates win DA runoffs

Runoffs in District Attorney races in Harris and Travis County favored establishment candidates, with Pat Lykos winning the GOP nomination in Harris (where she'll face former police chief C.O. Bradford in the fall), and Rosemary Lehmberg beat Mindy Montford by nearly a 2-1 margin to win the Travis DA seat (there's no Republican opponent in the fall). I voted for Lehmberg in the Travis runoff, so I was glad to see her campaign succeed. Congrats to her and Judge Lykos on their victories.

Search warrants for polygamist compound may be invalid

UPDATE: FLDS defense attorneys withdrew their objection to the search warrant today, avoiding a direct ruling by the judge on its legality.

Increasingly I'm coming to think that the case against the Eldorado polygamist compound may be a setup job. Certainly the warrants used to sweep into the compound and remove more than 400 children by force seem inadequate, and the church will ask a court today to quash them.

I have no idea what would happen then to the 400+ kids taken from the compound. What a mess!

Why could the warrants be tossed out? For starters, the initial warrant named the wrong person. Dale Barlow, the 50-year old man who an anonymous phone call accused of marrying and assaulting an underage girl. Barlow is actually on probation living in Arizona, says he's never met the girl in question, and has not been arrested. According to the Salt Lake City Tribune:

Joni Holm, who has helped children leave the FLDS, said the teenager who called officials on March 29 and 30 and claimed she was abused is married to a different, younger man. The girl's husband is in his late 30s, is related to Dale Barlow, shares his surname and has a similar sounding first name, Holm said.

"I know they're looking into the wrong one," Holm said.

Indeed, they can't even find the 16 year old girl who's phone call set off the whole chain of events. None of the information on which authorities based the raid appears to have panned out. The error regarding Barlow in the warrant could easily wind up creating a "fruit of the poisonous tree" situation where none of the evidence from the compound searches can be used in court. Again from the SLC Tribune:

The first warrant identified Dale Barlow by name and his birth date. The copy on file in court does not list the name of the investigator who petitioned for it.

A second and more expanded warrant, signed Sunday night, was based on observations and evidence found by law enforcement and child services workers inside the compound, according to court documents.

So if the first warrant targeted the wrong person, and the second, expanded warrant was based on observations from the first, I don't see how these warrants stand up in court, though maybe some attorneys in the crowd have additional thoughts. Several criminal defense lawyers interviewed on CNN also questioned the breathtaking scope of the warrants.

Not only that, though, some of the laws the sect has been accused of violating appear to have been passed specifically to target their religious beliefs, making previously legal activities illegal in order to penalize this particular organization. According to the Houston Chronicle:

In 2005, the sect's relocation to his district prompted Rep. Harvey Hilderbran, R-Kerrville, to push for changes in the marriage law, including increasing the minimum age at which teenagers can marry to 16, if they get parental consent or a court order. Previous law allowed someone as young as 14 to get married with parental consent.

"Had this bill not passed, there would have been quite a few of them that were married and were pregnant for instance or married with kids that were under 16 that they could not have done much about," Hilderbran said. "I've got some pride in it. It's one of those things I knew it was the right thing to do."

So how does that jibe with the plain language text of the US Constitution's first amendment, which declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"? I'm quite surprised my former employers at the ACLU of Texas haven't jumped all over this. I believe Hildebran may well have crossed the line by passing laws specifically aimed at a religious group.

Don't get me wrong: True pedophiles should be prosecuted to the full extent of the law. But that's a little different than changing the law to redefine historic religious practices by a particular sect as "pedophilia," which is what Rep. Hildebran did. Similarly, there's a big difference between investigating an individual, anonymous complaint from a single teenager, and forcibly taking 419 children away from their homes based on guilt by association.

I'd feel the same way if the state decide to seize all the children of parishioners in a Catholic church whose priest had been accused of pedophilia. What's the difference between that and what's happening in West Texas based on allegations against one man?

As Fox News' Greta Van Susteren declared, "being weird isn't a crime." And the alleged crimes of one man don't justify violating the rights of hundreds. When we identify "weird" people whose religious beliefs we don't like and pass laws criminalizing that behavior, as Hildebran did, to me that borders on "prohibiting the free exercise" of religion. This whole episodes strikes me as grandstanding and overkill.

UPDATE: According to "The Polygamy Files," the Salt Lake City Tribune's blog on "the plural life," some people familiar with FLDS are questioning whether the call was legitimate:

Why? Much of the verbage is wrong for the FLDS sect. For example, they don't refer to ''the outsider's world.'' Non-FLDS members are ''gentiles,'' the caller pointed out.

See more excellent coverage from The Polygamy Files here, here, here, here, here, and here.

RELATED: Is History repeating itself with raid on West Texas polygamist compound? Eldorado incident recalls 1953 "Short Creek" raid

Pink Dome is Dead! Long Live Pink Dome!

Say "Adios Mofo" to one of Texas' funniest and best-loved political blogs. The Pink Dome will be missed. I'm pleased to see, however, that Charlie will still be blogging for KXAN, a local Austin TV station.

Best way to terminate surveillance society is through cost-benefit analysis

In a recent episode of the Fox-TV sci-fi hit, Terminator: The Sarah Connor Chronicles, a spin-off from the Arnold Schwarzenegger Terminator movies about time travel and a future where intelligent machines took over the planet, the eponymous character (who'd returned to the past to eliminate the threat) discovers that, in the fictional plot, the key network that wound up allowing an artificial intelligence system to impose its will on humanity began with the implementation of red light cameras, giving the machines a near-ubiquitous surveillance and control of American cities.

Fictional fantasies aside, with technology advancing so rapidly, it's hard to know how concerned one should be about the possibility of some future, a la The Terminator, in which technology is used to enslave the public rather than liberate us from crime. My favorite quote from the show about the difficulty of that judgment came as Sarah Connor and her band of "heroes" contemplate whether to kill the maker of an artificial intelligence program at a 1997 computer chess tournament:

Cameron: “It could become Skynet.”
Sarah: “It could also become 'Pong.”

While we're a long way from any real world enactment of the "Skynet" scenario from Terminator, we're already to the point where human authorities, using increasingly intelligent machines, routinely use roadway cameras for purposes unrelated to traffic control, or even antithetical to it.

In Houston, tollway cameras have been configured to identify license plate numbers and run them against vehicle registration records and arrest warrants. Meanwhile, in California, red light cameras have been configured so that private vehicles owned by elected officials, public employees and their families will not be ticketed for red light running.

So these technologies already are used both to grant privileges and to bust "bad guys," not to mention (much more likely) low-level ticket scofflaws and other petty offenders not savvy enough to simply stay on the freeway.

Indeed, in Dallas, Houston, and Austin, police want to go even further in the direction of a human-run version of the the ubiquitous, automated surveillance society foreseen in Terminator, placing surveillance cameras in public spaces with feeds directly to the police department. The potential for real-time identification of individuals in the public sphere creates all sorts of scenarios worthy of a good sci-fi plot.

Whatever the merits though, of any arguments about privacy, a surveillance society, slippery slopes, and other debates about cameras centered around individual rights, the best argument against them when it comes to crime reduction is that they don't work. In Britain and other locations where they've been in place long enough to study the results, there's simply little impact on crime.

On his blog this week, Bruce Schneier, who arguably ranks among the most important electronic security specialists in the country (he literally "wrote the book" about cryptography in the computer age), links to a past Grits post in an item about the results from San Francisco's anti-crime cameras. As in Britain and everywhere else I'm aware of, results from San Francisco;s long-term study found that the "best thing that can be said about [cameras] is they have a placebo effect for worried residents," but crime didn't go down overall as a result of their placement.

That's why, rather than waste too much breath arguing about the possibility of Big Brother's potential misuse of camera technologies, a better tactic IMO may be to vet such ideas to determine if they really produce the promised results.

In that respect, my thoughts regarding surveillance cameras aren't that different from those regarding new, state-level "fusion centers" that have aggregated mountains of private citizens' information. Yes, there may be legitimate Big-Brotherish concerns, but those arguments will only ever convince people who are predisposed to agree with them. If those opposed to general public surveillance can demonstrate, however, that promised public safety benefits do not result - another thing security cameras in public areas have in common with fusion centers - those arguments appeal to broader constituencies and situate such opposition much more favorably in the political arena.

Not only that, they have the added benefit of being true.

Victim rights blog targets sexual assault

Not sure how I missed this, but I was pleased to learn (after they graciously added Grits to their blogroll) that the Texas Association Against Sexual Assault, a victim rights group for rape survivors, has its own blog. Go here to give it a read. (As always, Sex Crimes IMO remains the must-read national blog on this topic.)

Similarly, a couple of recent links to Grits turned me on to Cat's Meow, a blog from a chemical dependency counselor at a Texas prison unit near Amarillo. Update your blogrolls accordingly.

Big Love in West Texas

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

I can understand executing a search warrant at the Eldorado polygamist compound to look for a 16 year old girl who phoned in an anonymous complainant about her forcible marriage at 15 to a 50-year old. But I don't immediately see under what authority the Department of Public Safety forcibly removed more than 200 women and children from the compound in the process. Indeed, "A caravan of K-9 unit vehicles were seen headed down the road to the compound on Sunday morning." But they've already removed everyone who might be the victim (at this time they still haven't identified her), what are they looking for with the dogs?

That must be quite a search warrant some judge signed off on, though I suppose we should be thankful they didn't bring in ATF again and burn the place down like in Waco. This whole episode makes me uncomfortable for many reasons, more like government persecution of a religion and lifestyle than the investigation of a specific crime. I'm very interested to hear readers' views on the topic, particularly any attorneys who might have opinions on the church-state implications of the DPS raid on the compound and the forcible evacuation of non-suspect residents.

UPDATE: A more current total is 401 children removed from the compound, and "133 women have voluntarily joined the children, who are being held at an historic site, Fort Concho, that includes facilities for lodging." The San Angelo Standard Times has a good writeup of the legal processes so far, declaring:

State law no longer requires emergency 24-hour hearings after CPS removes a child from parental custody, instead leaving the timing at the discretion of the judge, who in these cases is 51st District Judge Barbara Walther.

"The judge can waive that hearing," said Debbie Brown, executive director of the Children's Advocacy Center of Tom Green County, "and apparently, she's done that."

The Standard Times adds that the Fort Concho site:

lacks capacity for the total number of people removed from the ranch, Meisner said.

Authorities have arrested one person at the FLDS' Schleicher County compound, but the suspect sought since Thursday remains at-large.

The person arrested faces a misdemeanor charge of interfering with the duties of a public servant, said Lisa Block, an Austin-based spokeswoman for the Texas Department of Public Safety.

Kingsville task force officer convicted of stealing seized drug funds

When Governor Rick Perry eliminated funding for Texas' regional drug task forces two years ago, we heard a string of complaints continuing to this day that his action was in response to "one bad apple" in Tulia, and that others made positive contributions. Ironically, though, two years after their demise, Texas drug task forces still are generating some of Texas' most eye-popping law enforcement scandals.

In Kingsville, drug task force officer Jose Ibarra was convicted for stealing $46,000 from seized drug monies betweein 2004 and 2006, when the task force closed its doors, reported the Corpus Christi Caller Times ("Ex-drug task force officer will pay back funds," April 4):

As part of a plea agreement, a judge sentenced Ibarra to 10 years probation and 250 hours of community service. He also was ordered to make monthly payments for the next nine years to pay off about $55,000. That figure includes the funds he embezzled from the Kingsville Specialized Crimes and Narcotics Task Force and the cost of an audit.

Though it's definitely on the light side, I'm personally fine with that sentence - restitution is a more important outcome, and likely a more severe punishment, than a short incarceration stint. But it's sure not a typical outcome for second degree felony theft; there are a lot of people doing time in Texas prisons today for stealing a lot less than Officer Ibarra.

RELATED:

• Hyping Harm: Media should welcome, not decry Byrne grant cuts
• Texas' Tulia Lesson: Dems should join GOP in abandoning failed drug task force strategy
• Revisionism begins in effort to restore drug task force pork
• 'Operation Byrne Blitz' makes explicit arrests-for-dollars link
• Byrne task force funds mainly financing low-grade enforcement
• Left and right join to bash Byrne grants in D.C.
  
• Era of Tulia-style task forces coming to an end in Texas

Balko interviews Craig Watkins, decries PR blitz on drug task force pork

Two articles by Reason magazine's Radley Balko caught my eye.

First, is Dallas District Attorney Craig Watkins America's best prosecutor? It might be a tad early in his career to foist that mantle upon him, but I agree with Balko he should be in the conversation. See his interview with Watkins.

In addition, Balko has a Fox News column decrying the national PR campaign Grits discussed earlier aimed at staving off cuts to the federal Byrne grant program. Writes Balko: "Unfortunately, Congressional Democrats (and many Republicans) can't resist the easy, positive publicity that comes with a press release announcing the procurement of federal crime-fighting pork for the local police department."

Texas prison guard salary ranks 47th among states

I realize the cost of living differs significantly according to geography, but I'm pretty sure Texas don't have the 4th lowest cost of living among states, even though Texas correctional officers are "47th on the nationwide list when it comes to what they're paid." Texas' average prison guard salary is less than half that in California, according to the Beaumont Enterprise:

PRISON PAY
Correctional officer salaries, annual mean wage

Top five

1. California, $61,000
2. New Jersey, $56,960
3. Massachusetts, $53,090
4. Nevada, $50,120
5. New York, $46,760

Texas, surrounding states

• New Mexico, $30,400
• Texas, $30,100
• Louisiana, $26,940
• Mississippi, $23,470

Source: U.S. Department of Labor

The paper also calculted that there's an overall "one guard per 5.28 inmate ratio in California versus a one guard per 7.03 inmate ratio in Texas," though the two states have about the same number of inmates.

Despite a recent increase in starting salary for new hires, the Enterprise quoted state Sen. John Whitmire pointed out that the state gets what it pays for by underpaying guards, which has contributed to absenteeism and more discipilinary problems:

Whitmire isn't sure the latest pay raise to new hires will make enough of a difference.

"Getting a 10 percent raise is almost too little, too late," he said, adding that a comprehensive assessment of the correctional officer profession in Texas is gravely needed.

"We need to look at the long-term and the short-term," Whitmire said.

"By raising the qualifications and standards for correctional officers, that can make it a profession somebody wants to do long-term."

Whitmire said while he's proud of Texas correctional officers' hard work, given the environment they work in, he's concerned that standards have been lowered to recruit correctional officers.

"They're hiring 18-year-olds two months out of high school," he said of the relative inexperience that goes along with youth. "We've got officers who are 70 years old, senior citizens. That's a security risk."

He also pointed out that physical fitness standards have been lowered, with overweight, out-of-shape correctional officers in the system.

Whitmire said he wants to meet with state criminal justice administrative officials and discuss the severity of the officer shortage. "It's worse than they're acknowledging," Whitmire said.

Many Texans support keeping prisons as inhospitable as possible because they're supposed to be about punishment, but those same poor conditions (think double shifts with no air conditioning in the Texas summer heat) combine with low pay to make it nearly impossible to staff current prisons in their existing, mostly rural locations.

Proposed Harris County study will likely predict substantial savings from a public defender office

Considering how much money Harris County spends on its criminal justice system, I'm surprised their commissioners court appears to have barely ever considered the idea of a public defender office, which state Sen. Rodney Ellis has been pushing recently.

"The only thing I know about the public defenders system is what I see on Law and Order," Harris County Judge Ed Emmett told the Houston Chronicle last week ("Commissioners may okay study of public defender," April 5), anticipating the commissioners court's approval tomorrow of a study on creating a new public defender office. "I will maintain an open mind, for sure" At least that's encouraging.

Demonstrating a further lack of knowledge were Commissioner Steve Radack's comments: "Radack said he is convinced that defendants in Harris County receive fair representation from court-appointed lawyers and will look at only whether a public defender system would save money." "They can study it," he said, "but unless it saves taxpayers' money, then I'm not for it."

What's strange to me about that comment: Saving money is the main reason more Texas counties in recent years have gone with a public defender system. While examples abound of low-quality indigent lawyering (Houston is where the famous "sleeping lawyer" in a death penalty case was considered to be providing adequate counsel), the main reasons other large cities employ them are economies of scale, and a more rapid adjudication of cases which allows the county to reduce the jail population.

Even if Radack only means to compare the cost of a PD office side by side with the current indigent defense budget, public defenders are cheaper by a country mile. For example, Dallas County has a PD office (which supplements private appointments), but Tarrant County does not. In the first three years after passage of Texas' Fair Defense Act, Tarrant's costs increased 87%, mostly from increased attorney fees (as opposed to increased caseload). In Dallas, the comparable cost increase was 10.6% over the same period.

So to judge by other counties' experience, a PD would likely save money over the current system, even only considering baseline budgets. But if the analysis includes savings from reduced incarceration from faster processing times (remember, Harris County's jail is 1,000 inmates over capacity and rents 600 beds per month already from a private jail in Louisiana), there's little question savings will far outstrip new costs.

For that reason, I honestly don't understand where Commissioner Radack is coming from, and hope he becomes more educated during the process (along with Judge Emmett) about PD offices and their relationship with the rest of the justice system. If that's his main concern, he should support this idea.

In addition, other PDs in Texas have received supplemental startup funds from the Texas Task Force on Indigent Defense, which I'm certain would be chomping at the bit to finance a new PD office in Texas' largest county.

Commissioners Garcia and El Franco broadly support a PD office, so with two of five commissioners likely to approve, and two more undecided or undeclared, this suggestion definitely has legs, for now, despite Radack's objections.

RELATED: From the Texas Task Force on Indigent Defense, see Blueprint for Creating a Public Defender Office in Texas (pdf), which declares on p. 7: "Public defenders can provide comparable quality legal services at less cost than any other indigent defense delivery method. ... The fact that public defenders cost less to operate is a matter of the same basc economic factors that lead most attorneys to work in law firms rather than operate individual offices."

MORE: From Mark Bennett at Defending People, who brings news that commissioners approved the study, predicting that, if approved, "the PD’s Office is likely to start small, providing trial lawyers to two or three of Harris County’s 22 felony courts (I’ve heard that Susan Brown of the 185th District Court and Marc Carter of the 228th District Court are interested)."

Trend toward bail, away from personal bonds a major factor in Harris County Jail overcrowding

It's not news that the Harris County jail is overcrowded, so I'm glad to see the Houston Chronicle devoting more attention to the question of "Why?"

The Chron today features a story by Mike Tolson about the trend toward requiring bail for low-level defendants, a topic on which Grits has focused extensively in the past. At a time when Harris County's jail has 1,000 inmates beyond capacity, and the county pays for another 600 to be housed in Louisiana, judges' decisions to allow fewer of these bonds directly contributes to non-compliance with state regulations and extra costs from leasing jail beds. Reports Tolson ("Use of no cash bonds drop," April 6):

Over the past 15 years, the use of personal bonds has all but disappeared in low-grade felony cases. Most Harris County district court judges say they would consider them for the right defendant, but the numbers suggest the "right" defendant rarely appears.

It has not always been this way. In 1994, personal bonds accounted for the release of almost 9,000 people from the Harris County Jail, including more than 1,800 facing low-grade felony charges, frequently drug possession.

A decade later, only 109 felony defendants were let out of jail without posting a cash bond. By 2007 that number was up slightly — to 153 — which translates into less than one half of one percent of the 36,176 people in jail interviewed by pretrial services officers.

Fewer personal bonds may be good for the bonding companies, as some people who once got them might be able to pay to get out of jail, especially if charged with a misdemeanor. But defense lawyers complain it is neither smart nor fair.

"What this means is that if you are really poor, you have zero chance of getting out of jail before your trial," said Pat McCann, president of the Harris Country Criminal Lawyers Association. "If you're a poor person in jail, you're screwed."

This is the biggest reason I was glad Harris County voters rejected a new jail last year. The county's jail overcrowding are largely volitional, mostly caused by misguided judicial choices, and perhaps the biggest single cause is the failure to issue personal bonds. Again from Tolson:

The consequences are two-fold. Fewer personal bonds contributes to the Harris County Jail being filled beyond capacity, requiring local taxpayers to spend $9 million a year to house approximately 600 prisoners in a private Louisiana jail. And people who cannot post a bond are far more likely to plead guilty in order to get out of jail.

"It's just plain nuts," said state Sen. John Whitmire, D-Houston, who chairs the Senate's criminal justice committee and has talked with local judges and jail officials about the issue. "You've got to be smart as well as tough. If we better managed our current resources and only locked up those who posed a public safety risk, we would save millions of dollars."

I'm really glad the local paper has finally caught onto this story, which IMO lies at the core of the debate Harris and other counties with overcrowded jails should be having.

Virtually all jails with a significant overcrowding problem have a lot of inmates who, as Tolson put it, "stay in jail because they do not have the money to get out." Statewide, according to Dr. Tony Fabelo, overall jail population increased 18.6% between 2000-2007, while the number of pretrial detainees increased 49.2% over the same period. Harris County led the state's largest counties with the biggest increase both in raw numbers and by percentage.

Tolson's piece constitutes perhaps the most cogent discussion I've seen of this subject in the MSM, and the public would be well served by further discussion of who's in the Harris County jail who doesn't need to be there.

Kuff has more, and I've written about pretrial detention a lot in the past, including the problem specifically in Harris County, so rather than continue I'll refer readers to prior, related Grits posts:

• Pretrial detention, unnecessary incarceration driving Texas jail overcrowding
• Bail blunders boost bulging Harris jail population
• Extra bail conditions: When tough on crime means tough on taxpayers
• Should county government subsidize bail bond companies?
• Lack of counsel, information are bail barriers
• Harris County detains low-risk offenders for no reason
• Homegrown Harris Jail Jam: Jailed probationers swell inmate numbers
• Harris revokes probation most among big Texas counties
• What are they reading at the Harris County probation department?
  
• Harris County officials wrongly think they'll build their way out of jail overcrowding

When does the adversarial system commence?

Even most non-lawyers know that the United States uses an a adversarial system of justice in both civil and criminal law. Recently in Rothgery v. Gillespie County, the US Supreme Court heard oral arguments regarding the question of precisely when the investigative function of police ends and the adversarial legal system commences - is it upon indictment, at the bail hearing, upon arrest?

Doc Berman has used the phrase "comfortable legal fictions" to describe high-minded but empirically erroneous theories undergirding the legal system, and one such fiction is the idea that, under an "adversarial" system, investigation and prosecution of crimes are separate functions. Police are "fact finders," under this theory, while the adversarial system as it's usually understood commences when formal court proceedings begin.

To judge by the oral arguments, Justices on SCOTUS appear inclined to decide that the adversarial functions of the criminal justice system commence sometime after arrest, either at the initial bail proceedings or perhaps weeks later upon indictment. The case should be decided later this year, so we'll get their official answer then.

But an excellent new book I'm reading right now, "Police Interrogations and American Justice" by Richard Leo, makes a strong case that the adversarial system really begins well before the point in the process discussed in Rothgery. "Once police have decided to interrogate a suspect," he argues, "they have, in effect, crossed the line that separates police work from prosecutorial work. They have aligned themselves with the prosecution in orientation and goal; their function at this point becomes more prosecutorial than investigative."

Leo says that "American police interrogators are adversarial in the sense that they are committed to the goal of incriminating the accused in order to assist the state in its prosecution"; they are "highly partisan, strategic, and goal directed."

Why is that a bad idea? "If police act as partisans or become committed to a prosecutorial agenda in their investigations, it is not just prosecutors whose perceptions and decisions may be distorted. Defense lawyers, judges and juries may also end up relying on biased, incomplete, erroneous, or one-sided information in forming judgments, making decisions, and dispensing justice."

Leo describes how police are trained and encouraged to use "fraud" and "deception" to elicit incriminating statements, an analysis even prosecutors would find hard to deny. Indeed, "unlike courtroom lawyers, police interrogators do not represent themselves as the suspect's adversary. Instead, in what must be one of the deepest ironies in American criminal justice, they portray themselves as the suspect's advocate."

Strong stuff, and Leo provides the evidence and concrete scholarship to back it up. As Anne Reed over at Deliberations declared, "There are briefs to be written out of this book. If enough of them win, the reforms Leo proposes in his final chapter might begin to take hold."

At a minimum, the portion of the book I've read so far tells me the debate over when the adversarial system commences will likely not be finally decided in Rothgery, save to preserve the comfortable legal fiction that police activities in the interrogation room are not aligned with the prosecution.

Amarillo re-entry site rejected: If not in an industrial area, where could you place these facilities?

TDCJ is finding it more difficult than you might imagine to give away money. First NIMBYism killed a new treatment center in Austin (supposedly they're looking for a new location), and now another much-needed program has been delayed up in the Golden Spread. Jobsanger rightly condemns the city of Amarillo's rejection of a counseling and treatment facility in a light-industrial zoned area, declaring that the city commission:

let a small group of citizens scare them into doing a rather stupid thing last Tuesday.

The Aware Program, headed by Allen Graves, is a non-profit organization that does a lot of good in the Amarillo area. They do HIV counseling and testing, drug and alcohol counseling, operate a small food bank, run a GED program, and have a program to help juvenile offenders. They offer these services free of charge.

I know Allen and his excellent staff because they work with some of my clients. They are dedicated and competent people, who are willing to work long hours and go the extra mile to make sure their job is done right.

The program was trying to establish a live-in program which would house parolees and probationers who were being released from drug treatment (both prison and community-based programs). They would offer drug, emotional and job counseling to the clients and provide round-the-clock supervision.

The program is badly needed in the Amarillo area, which has very little in the way of aftercare programs. They had been promised a substantial grant from the Texas Department of Criminal Justice (around $400,000), and all they needed was the approval of the city commission.

The situation seemed simple to those of us who understood the situation. These clients are going to come back to this area. They could come back under supervision and receive counseling and help, or they could be dumped back on our streets. The choice was a no-brainer.

But a small group of citizens thought they had a third choice. ... Rejecting the rehab program doesn't mean the clients won't come back here. They are from this area, and they're coming back whether the citizens and the city commission like it or not. Only now, they're going to come back without treatment, without counseling, without job training, and without supervision.

It doesn't take a genius to see that this makes our city a more dangerous place, not a less dangerous one.

Though the rejected treatment center in Austin was in a neighborhood near downtown, the Amarillo site was not, making it think it may be impossible to site new facilities in many communities if the Legislature doesn't act to break the NIMBYism logjam. A commenter at Jobsanger added that from the press coverage and debate over the facility, he was under the "impression it was in the middle of a neighborhood. Now that I went to maps.google.com and actually looked, other than outside the city limits, there's probably not any place any more appropriate."

When someone from Amarillo gets out of prison, they're not going to go somewhere else because the city won't let them have services. They're still going to go home. They'll just be more likely to get into trouble again, and wind up back in the criminal justice system. There's little sense to this decision, and a lot of harm caused.

Via Cat's Meow. See also coverage from the Amarillo Globe News and the Panhandle Truth Squad.

Not just Texas: CNN finds punishment culture prevalent at juvie lockups nationwide

Reacting to a report that Ohio must pour tens of millions into juvenile detention centers as a result of federal litigation, CNN on Friday presented an excellent, extended feature on sexual and physical abuse at juvenile lockups, citing incidents in Texas but also many other states. I'd encourage everyone interested in juvie justice to read it.

The news from other states suggests that Texas' problems aren't unique, but also that we've got a long way to go to reach the minimum standards feds are requiring elsewhere.

In Ohio, reported AP, ordered changes resulted from a 2004 lawsuit where the state did not comply with settlement terms, so they're just a little ways down the line from where Texas is now with its federal litigation. The feds sued over TYC's Evins unit, but the federal district judge in the case recently refused to accept the settlement, declaring it had no teeth. The US Department of Justice has sued over abuse at juvie facilities in Arkansas, Georgia, Hawaii, Indiana, Maryland, Mississippi, New Jersey, Oklahoma, Texas, Puerto Rico, and the Northern Mariana Islands.

"In addition to overcrowding and excessive force," said AP, "a report found that guards regularly place children in solitary confinement for inappropriately long periods of time, a practice that "is unconstitutional on its face" and should cease immediately." TYC's Ombudsman has complained about the identical practice in Texas, so here's more evidence the tactic may not pass constitutional muster.

In related news, the Austin Statesman's Mike Ward and Senate Criminal Justice Chairman John Whitmire tag teamed again today for another story proposing TYC's outright abolition. The Governor's new conservator opposes the idea, and House Corrections Chair Jerry Madden told Ward he does not favor "shutting anything down or drastically changing anything until we know what we're replacing it with." Still the headline reads, "Plan to close TYC gathers support." I'm not so sure about that. The main supporters of the plan appear to be Chairman Whitmire and Mike Ward himself.

The irony here: Last year the "Blue Ribbon Panel" appointed by the Governor recommended downsizing TYC and shifting to small regional facilities with a greater emphasis on community corrections. Whitmire and other legislators didn't take the idea seriously. But now that his personal choice to run the agency is out the door, he's ready to defenestrate TYC without blinking an eye.

Don't get me wrong. I think it'd be just fine to further downsize TYC (its inmate population has already been cut in half) if, as the story suggests, the Legislature decided to "piggyback some programs with the Texas Juvenile Probation Commission, which funds county-based treatment programs for youths on probation," and it "would not include any unfunded mandates for counties."

So it's not the idea, per se, but proposing it in a fashion akin to uncorking a flash-bang grenade in a crowded theater. The proposal clearly blind-sided the conservator, and has the potential to harm the agency's all-important recruiting efforts. (Would you go to work for an agency you thought wouldn't exist in a year?) It also reverses the legislative trajectory coming out of 2007, when millions were sunk into upgrading TYC facilities. No one can predict the future, but IMO Mike Ward overstated both the level of support for the plan and the ultimate likelihood that TYC will be "abolished," unless by that you only mean "renamed."

The Joint Select Committee on TYC has scheduled a hearing on April 16, so hopefully then we'll get more significant details about Whitmire's proposal, and a sense of what other legislators think of the idea.

Feds doing everything possible to make immigration crisis worse

First, pure bureaucractic bungling has caused legal immigration to decline by 17% over the last year, AP reports. Imagine - the one federal policy that might actually reduce illegal immigration, and with all the hoopla, the Department of Homeland Security made things worse.

Meanwhile, DHS continues to push forward with the border wall along the Rio Grande, waiving a requirement in the legislation that the agency complete a report on the wall's environmental impact. That seems particularly important considering that the plan would make us the first nation-state on the planet to ever wall off a river and leave the river on the other side.

Subtopia links to a slightly dated (one month old) but informative 25-minute clip from Rio Grande Valley Newsline that explains the myriad reasons that's a bad idea. It's less news report than an extended editorial against the wall from the perspective of the Chamber of Commerce set in border communities, but it provides a sense of how most locals along the border feel about the idea:



Sen. John Cornyn featured in the Rio Grande Valley Newsline video appears to be backtracking rapidly as he's force-fed an education on the topic by community leaders in the Valley. His belated concerns are a bit like closing the barn door after the horse is gone, since he already voted for legislation approving the wall (though he claims in the clip he thought there was no funding attached ... oops).

If you intentionally wanted to worsen illegal immigration and weaken border security as much as possible, I don't honestly think you could develop a more effective strategy than the one the federal government is pursuing at the moment.

End of the Week Roundup

Here are a several diverse news items, all deserving of more extended comment, that I only have time to mention right now:

A prison coverup after Hurricane Rita?
Reports the Houston Press, "For days after the storm, inmates in Beaumont lived without A/C, electricity or hot meals. Press releases kept saying everything inside was fine. Guards and prisoners agree — that was nothing but B.S."

Babies killing babies
Rick Casey at the Houston Chronicle mulls over the proper sentence for a 14 year old who concealed her pregnancy then killed her newborn baby.

TDCJ bans Bob Dole?
As I found out last year, there's not really a comprehensive list of banned books at TDCJ, though books and publications are denied to inmates every day. So the Houston Press took the next step and got a year's worth of correspondence under open records to see what TDCJ is banning, and published some of the more bizarre examples. My favorite among authors whose books are forbidden to Texas prisoners, according to the Press: "Bob Dole, whose World War II: An Illustrated History of Crisis and Courage was rejected for "NUD CHL," which isn't on the acronym list but which we guess refers to a photo of a nude child. Bob Dole, pedophile."

Another gem: "Rejected: Naughty Bedtime Stories. Accepted: Naughtier Bedtime Stories. Which, apparently, were not actually naughtier."

Shapleigh: No gracias on halfway houses
El Paso state Senator Eliot Shapleigh learned from the media that 2/3 of new halfway houses in Texas will be in El Paso, and he's not happy about it. I've complained about NIMBYism, but I can also understand not wanting them all in El Paso, just because nobody else would take them. Further evidence the state should force cities to identify spots for new halfway houses.

A dark underbelly to criminal justice power relationships?
After reading the sad and grotesque story of an immigration agent coercing sex from a green card applicant, and news of police coercing sex from prostitutes, it's disturbing to see the same pattern allegedly occur in the relationship between a Texas parole officer and a male parolee, which supposedly happened in Conroe. Let me know in the comments: Would you perform a sex act against your will if the person demanding it could send you back to prison? It's really an ugly thought.

Fifth Circuit apparently taken over by aliens, issues restraint on prosecutors "vouching" for law enforcement

At Deliberations, Anne identifies a beauty of a Fifth Circuit opinion in a Texas case laying down the law regarding what prosecutors can say in closing statements to bolster the credibility of police testimony. She writes:

Here's the line you're trying to draw: it's okay in closing argument to suggest what inferences jurors should make from the evidence, but it's not okay to insert your own credibility by vouching for the credibility of a witness. The classic example of vouching is when the prosecutor says, "I've known this FBI agent for years, and I can tell you he wouldn't lie."

Got it? Okay. In the the trial that led to Fifth Circuit's United States v. Gracia opinion yesterday, defense counsel argued that the federal agents were lying. The prosecutor responded with the following arguments. Which ones are permissible inferences from the evidence, and which are impermissible vouching? Here you go:

1. "First, the prosecutor expressed his opinion to the jury that the agents were 'very, very credible' witnesses ('Statement One').
2. "Second, the prosecutor asked the jurors rhetorically whether they thought that an agent 'who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia'; and whether the agents 'would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury' ('Statement Two').
3. "Third, the prosecutor told the jury: 'I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered' ('Statement Three').
4. "Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents 'got out of bed' on the day they arrested Gracia and decided that this was 'the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia' ('Statement Four')."

I think most Fifth Circuit watchers will be shocked to learn, as Anne was, that the court's answer was "all four" statements amounted to vouching, and indeed constituted "reversible plain error," overturning the conviction! I quickly rushed over to the Texas District and County Attorney user forums, assuming they'd already be in a tizzy over the opinion, but apparently word hasn't filtered down to the front lines.

From readers with courtroom experience, how often do you hear prosecutors make statements similar to one or more of these four in closing arguments? They're certainly common enough in the political and rhetorical arena. Via Capital Defense Weekly.

Bush to sign Second Chance Act!

After many long years in the making, President Bush will finally sign the Second Chance Act on April 9, I learn in an email invite to a D.C. reception commemorating the event that evening. I can't make it, but it's certainly a cause for celebration. According to the Re-Entry Policy Council, the bill:

provides critical resources designed to reduce recidivism and increase public safety. The legislation passed the Senate by unanimous consent and now proceeds to the President’s desk for signature. ...

The Second Chance Act includes key elements of President Bush’s Prisoner Reentry Initiative, announced in the 2004 State of the Union address, which provides for community and faith-based organizations to deliver mentoring and transitional services. The bill will also help connect people released from prison and jail to mental health and substance abuse treatment, expand job training and placement services, and facilitate transitional housing and case management services.

"It is vitally important that we do everything we can to ensure that, when people get out of prison, they enter our communities as productive members of society, so we can start to reverse the dangerous cycles of recidivism and violence," said Senator Leahy. "I hope that the Second Chance Act will help us begin to break that cycle."

According to the U.S. Department of Justice, Bureau of Justice Statistics, an estimated 95 percent of all state prisoners will be released.

The most important aspect of the legislation on the ground will be more than $190 million in grants (see this summary in doc format) to state and local governments for re-entry and mentoring programs. I'll try to pay attention on Grits to what happens with this money in Texas when it comes down the pike. But for now, learn more about the Second Chance Act from the Re-Entry Policy Council.

More than you probably wanted to know about Texas Senate prison oversight hearing

For one stop shopping purposes, here are all the links to Grits' coverage of Wednesday's Texas Senate Criminal Justice Committee hearing:

• Should state break NIMBY logjam thwarting halfway house expansions?
• Whitmire: Parole board must do a better job explaining decisions to inmates and their families
• AIDS drugs, healthcare for elderly inmates driving TDCJ healthcare costs
• New diversion programs ease Texas prison overcrowding
• On the sunny side of the street: Is it time for an independent evaluation of telemedicine?

You can go here to view a video archive of the April 2 hearing.

Abolish the Texas Youth Commission?

That could be in the works, according to two articles published today:

• Youth Commission could face closure, radical change, lawmakers say, Austin Statesman
• Houston Senator Whitmire wants to abolish TYC, Houston Chronicle

In addition, though it's not posted yet so this announcement could be premature, I understand the TYC Joint Select Committee will meet again on April 16th, so maybe we'll hear more then about what these proposals might really mean in practice.

On the sunny side of the street: Is it time for an independent evaluation of 'telemedicine'?

Since I've posted quite a bit of critical material about healthcare in Texas prisons over the years, I thought it only fair to share what Correctional Managed Health Care E.D. Alan Hightower told the Senate Criminal Justice Committee yesterday are the three most important improvements at TDCJ healthcare since UTMB and Texas Tech took over the system. I personally learned quite a bit from the discussion.

First, the main benefit from operating the prison health system through UTMB appears to be reduced drug pricing. Because UTMB is a state hospital that does indigent healthcare, it qualifies for "340B drug pricing," which dramatically lowers its pharmacy costs. As mentioned earlier, 48% of TDCJ's pharmacy costs go for inmates with HIV. (As an aside, the committee was informed that "Big Pharma" is lobbying Congress right now to end reduced 340B pricing, so it's not inevitable those reduced prices will continue.)

Except for emergencies, all prescriptions in TDCJ are filled in Huntsville at a state of the art, UTMB-run pharmacy using entirely electronic prescription and medical records. Shifting to the cheaper drug prices saved UTMB about $1 million per month. In addition, because all medication is delivered to units in blister packs, unused medication is recycled, saving the state an additional $8 million per year.

In the past, drugs were delivered from Huntsville to outlying units in TDCJ trucks driven by prison trusties, but in recent years it's become more cost effective to simply ship them via UPS, said Dr. Raimer.

Hightower said the second important change for inmate healthcare delivery under the two university systems (UTMB and Texas Tech) was a shift to entirely electronic medical records integration of medical records (upgrading from paper files) into a central system accessible from any unit by medical personnel.

The third big improvement, said Hightower, has been the expansion of "telemedicine," which he said has been invaluable for providing additional consultations at rural units. He and other speakers cited Fort Stockton, in particular, as a spot where the state can't find nurses and doctors, and said that facility was particularly reliant on telemedicine.

In past hearings on this topic, senators had questioned the short amount of time spent per patient in a telemedicine setting - about seven minutes per patient, on average. This time Dr. Ben Raimer came prepared with better answers to such questions. He pointed out that TDCJ and UTMB operated chronic care clinics for a variety of specialized ailments, including HIV, mental health, liver and heart disease, and diabetes.

For those chronic ailments, he said, inmates are housed closer to medical facilities and specialists who can help them on an ongoing basis. Raimer said telemedicine was used more as a triage tool (though that seems to contradict past hearings where we learned they prescribe medications in a telemedicine setting), and that more serious cases received more extended attention.

That certainly makes me feel a little better about "telemedicine," which UTMB pioneered and is now marketing in a spin-off company, of all things. To the extent telemedicine really is just a triage tool, it could be extremely useful. As a substitute for on-site medical personnel, though, which appears to frequently be how it's used, seven minutes per patient is just not an adequate consultation for anyone with a serious problem.

I'd still like to see some medical school or other independent academic (not a Texas institution) evaluate the quality of care being delivered via telemedicine to Texas inmates compared to face to face doctor interactions. Is the quality of care at least close to the same? Maybe such studies exist, but I've never seen them, and if Texas prisons have become so reliant on a basically untested methodology, I think it's high time for an independent evaluation.

New diversion programs easing Texas prison overcrowding

Of two Texas Youth Commission facilities transferred to the adult prison system, TDCJ chief Brad Livingston told the Senate Criminal Justice Committee yesterday, the agency has only opened one so far, adding 606 beds, and has no immediate plans to open the second one.

The decline in probation revocations thanks to new treatment and diversion funds had "a lot to do with" the reduced demand for new beds, said Livingston. TDCJ is already seeing "lighter front end pressure" on incarceration - i.e., fewer people entering the system - thanks to newly authorized programs to reduce probation revocations.

Of the treatment beds authorized by the 80th Legislature, said Livingston, most are already contracted and on their way to coming online. Two contracts are not yet in place - one for 1,150 Intermediate Sanctions Facility beds where TDCJ plans to re-issue an RFP, and another contract for 500 additional SAFP drug treatment beds. Otherwise, everything else is moving forward.

Livingston also pointed out that the Lege only allocated $5 million in new funds last year to outpatient substance abuse treatment for probationers, but that judges around the state routinely told them this was their single highest funding priority. Perhaps next session such programs need to get a bigger slice of the pie.

AIDS drugs, healthcare for elderly inmates driving TDCJ medical costs

Here's a mind blowing statistic about health care costs in Texas prisons that came out at yesterday's Senate Criminal Justice Committee hearing: A whopping 48% of TDCJ's total pharmacy budget goes to pay for drugs for inmates with HIV.

Chairman Whitmire asked the Correctional Managed Health Care Committee executive director Alan Hightower to compile for him a list of the top ten most expensive inmates in terms of medical costs and their parole status. The assumption is that the state is eating high medical costs for inmates who could be released and treated safely in the free world. According to Sen. Whitmire, TDCJ recommends about 70 or more inmates per month for medical-based parole, but the parole board on average releases just 10% of them.

A past analysis showed the most expensive inmates cost the state more than $1 million per year in healthcare costs, so it'll be interesting to learn whether it's still true that TDCJ's most expensive inmates are mostly eligible for parole.

The Committee expressed concern that inmates who could be released into a hospice or nursing home facility (where the feds through Medicaid would pay 2/3 of the cost), are being held in TDCJ even though they're bedridden and immobile. Dee Wilson of the Office on Offenders with Medical or Mental Impairments told senators that "many" offenders recommended for medical release pass away before the parole board gets around to their case. Around 40 inmates per month die in Texas prisons.

Whitmire: Parole board, TDCJ, must do a better job explaining parole decisions to inmates and their families

A significant portion of yesterday's Texas Senate Criminal Justice Committee hearing focused on the parole process, with several interesting points highlighted during the discussion. (Video from the hearing is available online here.)

Chairman John Whitmire was in top form, politely but firmly taking TDCJ officials and parole board chair Rissie Owens to task for not doing enough to notify inmates why their parole is denied. The failure to do so, he said, harms guard and prisoner safety and makes rehabilitation less likely because offenders don't think there's anything they can do to achieve parole faster. As a result, they don't participate in programs, etc., or become frustrated and catch new disciplinary cases.

The parole board notifies inmates of approvals and denials through a letter that's delivered by a TDCJ parole officer assigned to each institution. Whitmire expressed concern that the entity that makes the decision is not the one that informs the inmate why their parole is denied. In many cases, he observed, inmates are functionally or entirely illiterate, and the letter, he said, is quite complex and bureaucratic.

Those arguments made a lot of sense to me, and better communication about parole decisions likely would improve inmates' behavior in prison as well as ameliorate bad will among inmate families. The Chairman said his office receives about 300 letters a month from inmates and their families (I'm surprised it's not more than that!), and that the most common complaint he hears is that people don't understand why they weren't paroled, or what they have to do to earn release from prison.

Another excellent discussion centered on whether new in-prison treatment capacity would improve Texas' parole rates. To fully grok this issue you must know that even though Texas prisons are completely full, that's entirely by choice - specifically from decisions by the parole board.

According to statistician Tony Fabelo's presentation in San Antonio in February (power point, see slide 7), 88,000 inmates, or 2/3 of the Texas prison population are eligible for parole, and more than half of parole eligible inmates (55%) have a non-violent crime as their main offense of record.

The committee devoted a great deal of discussion to drug and alcohol offenders who've been approved for parole pending completion of a treatment program. But these programs are so backlogged that at one point, the Chairman said, it took as long as a year after an inmate's parole was approved just to get into a six month treatment program. (TDCJ executive director Brad Livingston testified the average wait is down to 3 months for male inmates.)

Whitmire and others rightly declared that TDCJ's goal should be to provide treatment before an inmate is eligible for parole, so that if that's all that's standing between them and freedom they could be processed sooner and free up space for more dangerous offenders. Before last session, TDCJ only had 500 treatment beds in its entire prison system. The Legislature added 1,000 more, all of which are now up and running, helping eat into the waiting list for these programs, Livingston said.

In other parole-related matters, Sen. Whitmire and parole board chair Rissie Owens have clearly been engaged in significant behind the scenes disagreements over her refusal to implement a requirement in the Sunset bill that parole board members give a detailed explanation when their decisions fail to fall within release guidelines. Owens claimed technical barriers to implementation that quite frankly I found disingenuous and easily surmountable. She's hanging her hat on the strictest possible interpretation of SB 909, when IMO her board has plenty of discretion to craft a rule that would make the legislation work.

Unlike some past hearings where Owens and Whitmire butted heads publicly, her testimony yesterday was marked by numerous references to conversations outside the hearing room between her, Whitmire, and his staff, with the Chairman expressing his desire to "help" her figure out how to implement the law. There was tension, but Mrs. Owens did not exhibit the level of open defiance she has in the past.

Whitmire also questioned Owens and Livingston about DWI offenders who are frequently denied opportunities for treatment, apparently, because many have relatively short sentences and the waiting lists made it impractical. As a result, many just sit out their full term. The Chairman said he'd seen many DWI cases where an offender had been convicted five or six times (which would qualify them for up to 99 years or life in prison), but who'd never received treatment while incarcerated. That's amazing to me; you'd think you'd at least try the treatment option before locking someone up for decades.

Finally, CURE representative Joan Covici came in from Dallas to encourage the Committee and the parole board to rethink parole policies for inmates sentenced to life. Many such offenders are elderly people who committed extremely serious crimes in their youth, but are now for the most part not a significant threat, she declared.

Covici said the most common reason these offenders were denied parole was the "nature of the crime," something that's unchangeable, meaning nothing they can do to demonstrate rehabilitation could overcome the presumption against them. She estimated there might be 10,000 such inmates in that position system-wide, and encouraged the committee and the parole board to evaluate them based on future dangerousness instead of the nature of a decades old offense. (In addition to being the right thing to do from a justice standpoint for many offenders, her suggestion would also save the state a ton of money in health costs for elderly inmates, who take up a disproportionate amount of healthcare resources.)

The parole process has needed this type of scrutiny for many years, so I'm glad to see Chairman Whitmire and the Criminal Justice Committee continue to bird dog this incredibly important subject.

Should state break NIMBY logjam thwarting halfway house expansions?

Should the state require local communities to designate areas where halfway houses would be allowed, make communities that reject halfway houses pay for individual placements, or build halfway houses on existing government property?

Those options and more were floated at the Senate Criminal Justice Committee yesterday during testimony by Marc Levin of the Texas Pulbic Policy Foundation. (I'll have more to say about the rest of the hearing soon.) The Statesman's Mike Ward has an account today of the committee's discussion and the problems siting halfway houses, writing that ("Halfway house solution: Build them at prisons," April 3):

committee members expressed shock that two-thirds of the new halfway house beds they funded last year — 200 of the 300 beds — will be in El Paso because there were no alternative sites.

Discussion shifted to the possibility of building new halfway houses on the grounds of existing prisons, especially in and around Houston. That area accounts for about a quarter of all prison commitments in Texas.

The state now has halfway houses in Beaumont, Dallas, Fort Worth, Houston, El Paso and Austin — in a lockup near Austin-Bergstrom International Airport and the county-run Correctional Complex in Del Valle. El Paso has two.

Those halfway houses hold 1,400 parole-bound felons.

San Antonio is the largest Texas city without one. ...

In the past 20 years, halfway houses have been a controversial aspect of Texas' prison system, with protests killing every new location aside from one in El Paso that officials said is in a former jail in an industrial area.

Whitmire said there are too few halfway house beds, meaning some convicts must stay in prison for months until a halfway house bed opens up. Then most convicts cannot transition out of prison in their hometown or home county, he said.

Whitmire and other senators advocated a study. Prison officials, while publicly noncommittal, agreed more halfway houses sites are needed. Michelle Lyons, the system's spokeswoman, said the state currently is 255 beds short — down from 500 last year.

"What we are doing now makes no sense," Whitmire told the committee. "Locating them on existing (prison) units makes a lot of sense."

This topic hits a sore point with me. Much has been made of the online sex offender registry where you can find out how many paroled sex offenders live in your neighborhood, but for every sex offender listed there are many, MANY more parolees out there. They're here anyway. Opposing halfway houses and treatment centers just makes it more difficult for them to succeed on the outside and avoid committing new crimes.

The NIMBY types that come out of the woodwork opposing halfway houses must be among the most foolish on the planet. Texas releases tens of thousands of prisoners every year, and the prisons are chock full, with more entering the system all the time. So in the big picture, felons are coming out whether there's a supervised spot for them or they're couch surfing with friends. The idea that people would rather they're freelancing out there on their own instead of in a semi-supervised facility with support services just boggles my mind.

In addition to Whitmire's idea for halfway houses on prison grounds, Marc Levin proposed changes to the Government code to make it easier to make an application, including eliminating the requirement for a newspaper ad of a certain size for three consecutive days, which in Houston he said costs around $15,000.

Levin also suggested pursuing an idea from a bill by Debbie Riddle that I'd honestly not paid attention to last year, which would have required cities that rejected halfway houses to contribute money into a fund that would pay for community placement. I think that's a spectacular idea. It would put a stop to a lot of this NIMBY nonsense.

'Fusion centers' might be scary if they actually work

There are darn good reasons why President Harry Truman in 1947 insisted on a ban in the CIA charter on US intelligence services spying on Americans, but in the wake of 9/11 our nation seems to have largely forgotten them.

Still, anyone with the slightest small "l" libertarian streak must surely question the rise of a secretive network of "Fusion Centers," discussed on the front page of yesterday's Washington Post ("Centers tap into personal databases," April 2). Indeed, what are "fusion centers" except the state-level spearpoint of a domestic intelligence operation? Reported the Post:

Dozens of the organizations known as fusion centers were created after the Sept. 11, 2001, terrorist attacks to identify potential threats and improve the way information is shared. The centers use law enforcement analysts and sophisticated computer systems to compile, or fuse, disparate tips and clues and pass along the refined information to other agencies. They are expected to play important roles in national information-sharing networks that link local, state and federal authorities and enable them to automatically sift their storehouses of records for patterns and clues.

Though officials have publicly discussed the fusion centers' importance to national security, they have generally declined to elaborate on the centers' activities. But a document that lists resources used by the fusion centers shows how a dozen of the organizations in the northeastern United States rely far more on access to commercial and government databases than had previously been disclosed.

Those details have come to light at a time of debate about domestic intelligence efforts, including eavesdropping and data-aggregation programs at the National Security Agency, and whether the government has enough protections in place to prevent abuses.

The list of information resources was part of a survey conducted last year, officials familiar with the effort said. It shows that, like most police agencies, the fusion centers have subscriptions to private information-broker services that keep records about Americans' locations, financial holdings, associates, relatives, firearms licenses and the like.

Centers serving New York and other states also tap into a Federal Trade Commission database with information about hundreds of thousands of identity-theft reports, the document and police interviews show.

Pennsylvania buys credit reports and uses face-recognition software to examine driver's license photos, while analysts in Rhode Island have access to car-rental databases. In Maryland, authorities rely on a little-known data broker called Entersect, which claims it maintains 12 billion records about 98 percent of Americans.

It's a little creepy for law enforcement to gather information en masse about average Americans who've committed no crimes. There's a slippery slope aspect here that can't be ignored, circumventing the ban in the 1947 National Security Act on domestic spying.

We have two formal "fusion centers" in Texas - one in Austin (the Texas Security Analysis and Alert Center) and one in Collin County (the North Central Texas Fusion Center). In addition, though, last year it was revealed that the Governor created 11 "joint operational intelligence centers" aimed at border security that I know very little about (nor do I understand the relation between those and the two Fusion Centers). These "joint operational intelligence centers" do not collaborate with the Department of Public Safety (which operates the Austin fusion center in a nuke-proof bunker three stories below ground in North Austin) according to legislative testimony last year, so it's a mystery to me how all this "fusing" of information really plays out on the ground.

Legislation authorizing Texas' Fusion Centers only passed in 2007, but they were bothclearly already up and running by the time they were authorized. As I wrote during the 80th Texas Legislature:

There's one thing I find particularly odd about all this. Rep. Farrar and the bill language itself say the legislation would "create" the Texas Fusion Center, which is a massive, secretive, centralized intelligence gathering operation that analyzes info from all levels of law enforcement.

Not only is that redundant with the Department of Public Safety's criminal intelligence division, the "Fusion Center" as I understand it is already in operation - apparently without legal authority. I say that because when the Lege in 2005 removed restrictions on law enforcement's use of fingerprints from the driver license database, Gov. Perry's Texas Fusion Center immediately took the data and gave it to the feds to run against unnamed criminal and terrorism databases.

So this bill won't create the Fusion Center, it will only give cover to Gov. Perry for initiating such projects (like the TDEX database) without legislative authority or approval.

That same kind of mass information dump is taking place all over the country via these fusion centers. Information that was scattered in government silos on a need to know basis - or gathered by private vendors for commercial purposes - now gets dumped wholesale upstream into federal hands. To what end, though? Do the benefits outweigh the risks and costs? Indeed, can anyone identify any benefit at all?

The Congressional Research Service last year similarly questioned whether fusion centers could demonstrate they were worth the money, time and effort, identifying "several risks to the fusion center concept — including potential privacy and civil liberties violations, and the possible inability of fusion centers to demonstrate utility in the absence of future terrorist attacks, particularly during periods of relative state fiscal austerity."

CRS additionally questioned whether fusion centers have "created a false sense of security?"

Indeed, probably the greatest comfort to me about potential abuse of fusion centers is that I don't believe analysts can meaningfully comb through that much data pro-actively, which means their work is reactive and thus largely redundant and worthless. Thus I see them, at least so far, as more a pointless boondoggle than a tangible privacy threat. That could change, though, if we begin to hear evidence these data streams have been abused.

Texas' fusion centers and "joint operational intelligence centers" are a subject I'd planned to pursue in greater detail on the blog last year, but the Texas Youth Commission debacle knocked them off my radar screen. Still, I've seen scarce little benefit from all this information sharing, and much potential for waste and even harm. This Washington Post piece does little to abate that initial skepticism.

See prior related Grits posts:

• Fusion Centers: What we have here is a failure to communicate
• The Governor's Great Border Security Power Grab
• Perry moves to consolidate intelligence gathering in Governor's office
• Biometrics slope got slippery awfully quick

And from the Congressional Research Service:

• Fusion Centers: Issues an Options for Congress

Chronicle: JPI report illuminates sources of Harris jail overcrowding

How many times have we seen this headline, "Harris County Jail filled beyond capacity" (April 2), or something similar, in the Houston Chronicle?

Too many, for my tastes. Either county officials need to fix overcrowding problems at the jail, or else the Chronicle needs to buy its headline writers a thesaurus. I'm guessing "both" might be too much to ask for.

At least reporter Bill Murphy spiced up the story with poignant analysis from the just-released Justice Policy Institute report (pdf) on local jails, which he said "appeared in line" with Harris County's experience. Let's just identify a few highlights from Murphy's story. For starters, he buried his lead, leaving this startling statistic until the final lines of the story:

Two years ago, the county spent $154 million on detention, Raycraft said.

This year, it will spend $192 million, a 24 percent increase. The costs will continue to rise if the county builds more jails and hires the guards needed to operate them.

A 1/4 cost increase in two years is an astonishing, unsustainable growth rate. No wonder Harris County voters were reticent to give the Sheriff a bigger jail to manage!

Harris County's Jail as of yesterday was 1,000 inmates above capacity, plus another 600 inmates are housed in Louisiana at a cost of $9 million per year in fees to a private vendor.

Also in line with JPI's findings, Murphy writes, a large proportion of the Harris County Jail population are mentally ill or homeless, who require both more services and security:

About 15 percent to 20 percent of the county inmates are prescribed psychotropic medication to treat mental health conditions, said Chief Deputy Mike Smith, who oversees jail operations.

"They are a more problematic inmate," he said. "They require more services. They can be a threat to themselves and a threat to others." ...

The number of homeless in the county jail also is increasing, Smith said. "We are probably becoming the biggest homeless shelter in the state," he said.

Surely there's little question the Harris County Jail is the biggest "homeless shelter in the state." It's hard to think what might even be a close second.

I've written extensively in the past about why the Harris County Jail is overcrowded, so I'll not reiterate it here (except to provide links below). But Murphy supplies a great example for other beat reporters, combining routine coverage of the local jail with analysis from this national study to provide context and a framework for analyzing the subject. If you read through the JPI report, there's a better than very good chance many of the causes and consequences of jail overcrowding they discuss apply to your local jail, too.

Kuff adds his thoughts here.

See prior, related Grits coverage:

• DOJ investigating Harris County Jail
• Marc Levin: What should Harris County do now that jail bonds have failed?
• Counties that rejected new jails must now get serious about diversion
• Pretrial detention, unnecessary incarceration driving Texas jail overcrowding
• Bail blunders boost bulging Harris jail population
• Extra bail conditions: When tough on crime means tough on taxpayers
• Should county government subsidize bail bond companies?
• Lack of counsel, information are bail barriers
• Harris County detains low-risk offenders for no reason
• Homegrown Harris Jail Jam: Jailed probationers swell inmate numbers
• Harris revokes probation most among big Texas counties
• TPPF: Counties must act to prevent overincarceration
• Harris County officials wrongly think they'll build their way out of jail overcrowding
• Harris Sheriff makes jail overcrowding worse with optional immigration inmates
• Sheriff disingenuous to claim no cost for jailing immigrants

Sheriffs' use of jail labor ripe for statewide investigation, legislative fix

A pair of recent headlines make me think a statewide audit could be in order regarding how Texas county jails use inmate labor.

First, in my hometown of Tyler, Lt. Gary Lile, a former Winnsboro police chief and administrator at the Smith County Jail's low-risk facility, apparently committed suicide after the Texas Rangers launched an investigation into allegations that deputies used inmate labor for personal gain, including gathering scrap metal for resale. Three other deputies may still face felony charges, and more deputies may be implicated, the Tyler Morning Telegraph has reported.

Then over the weekend, the Austin Statesman ran a feature providing details of the Bastrop County Sheriff's final conviction, in this case for turning a blind eye toward gambling operations and "using county inmates and materials to operate his own custom barbecue pit building business." Prosecutors claim the sheriff and a county commissioner "stole as much as $250,000 in money and goods while in office."

County jail trusties all over the state perform work both inside the jail and outside it, mowing lawns, cleaning up roadsides or cemeteries, etc., but nobody's supposed to be using them for personal gain.

I contacted Adan Munoz, head of the the Texas Commission on Jail Standards, to ask about the issue, and he confirmed that TCJS does not track how jails use inmate labor as part of their inspection process. Indeed, there's no agency with specific jurisdiction over such abuses except local county officials, he said, but in general he thinks they have strong incentives to behave ethically. (I wish I shared his optimism about county level oversight - in Bastrop the Sheriff was in cahoots with a county commissioner; that meant foxes were watching the henhouse, allowing the situation to go on for years.)

Munoz declared he does not believe misuse of inmate labor is a statewide problem, and thought that local officials generally provide adequate oversight. He admitted, though, having two similar incidents in the press recently puts the issue more than usual on the front burner.

Munoz agreed that it would improve accountability if jails kept logs of when and how inmate labor is used, and would give TCJS something to check during inspections to provide some external oversight. That's not the law now, though, so Texas jails keep no such logs or other documentation, making it virtually impossible to track how trusty labor is being used.

Requiring such logs might be a good reform for the Lege to consider adding to state jail standards when they get back to Austin next year, but Sheriffs who want to prevent similar problems at their own jails should preemptively create them themselves.

In the meantime, though, either the Comptroller, the state auditor, the US Justice Department, or somebody with enough resources to do the job right needs to investigate whether other Texas Sheriff's departments have misused inmate labor for personal gain.