Dallas Public Defender to lose 2 more positions

An informant brings word that the Dallas Public Defender Office may soon lose two more spots because county commissioners are requiring courts to assign felony PD lawyers 40 felony cases each month. Judge Carter Thompson and Judge Susan Hawk are each cutting a felony trial PD effective in August. See the related agenda items 10(a) & (b) (pdf, pp. 174-179)

A report commissioned by the county from the Texas Task Force on Indigent Defense said that caseloads recently required in Dallas County were three or more times higher than “nationally recommended standards” and substantially higher than caseloads at other Texas public defenders. TFID warned earlier this month that maintaining PD caseload levels that high "can pose a serious threat to the indigent’s right to competent counsel."

There's also some good news for lawyers at the Dallas PD: The appellate division, I'm told, will survive in the county budget at least another year, though with a quarterly review of their statistics and workload expectations that may still give the agency trouble down the line.

Self-paced learning at TYC the "least effective" approach

Though it's a long and substantive document, anyone interested in an inside look at what's going on with education services at the Texas Youth Commission should consider the new report (pdf) from the Ombudsman's office a must-read. (I'm particularly hoping the Sunset Commission staffers are paying close attention.)

Bottom line, based on interviews with dozens of students, teachers and staff as well as analyzing agency-generated data, UT-Austin Professor Michael Krezmien depicts a completely dysfunctional education system at TYC, with the few bright spots dragged down by overall organizational failure and an utter lack of focus on educational services.

While the contents of the report could and likely will fill up several posts, I wanted to provide an overview of the main points, particularly since initial news coverage so far hasn't delved too deep into the substance. This harsh conclusory paragraph sums up the main flaws with TYC's approach to education services:

Despite the fact that a substantial percentage of the youth have reading and learning deficiencies, these students are expected to learn through a process of independent reading. Despite the fact that a substantial percentage of the youth have limited reading comprehension skills, they are expected to acquire new information primarily through self‐directed reading. The current model of educational practices at the TYC is basically devoid of what current educational research has consistently identified as “best practices” for instruction. There is little to no direct instruction and little to no classroom discussions. Students are not exposed to new knowledge in multiple ways, nor are they provided with instructional approaches that are interesting or engaging. Students have limited engagement with teachers, and the classes typically lack direct instruction, questioning, and discussion. Students are seldom given opportunities to respond to new information or to questions about newly learned information. Students are seldom provided opportunities to relate newly learned information to the world or to their own prior knowledge. Student engagement was poor across settings and classrooms. Although there were instances of excellent teaching and innovative instructional approaches, the primary instruction practice (“self‐paced” independent desk work) is the least effective instructional approach available.

In addition, the education TYC offers to special ed kids and students with disabilities, according to Professor Krezmien, is out of compliance with federal law. He reports that TYC has identified 40.4% of students as having a disability under the Individuals with Disabilities Education Act of 2004, however these students' "transitional plans were generic and inadequate. Generally, a majority of special education students did not receive special education services in accordance with the IDEA."

The Professor's data shows how TYC has become a dumping ground for the illiterate and the mentally ill just like happens with adult prisons. TYC has four times as many special ed students as a typical public school, three times the number with learning disabilities, and 18 times as many students with emotional disturbances.

TYC uses only two educational outcome measures, says Krezmien: Scores on a standardized test upon entry and exit, and the number of students who get GEDs. He found the standardized test inadequate for assessing students with so many particularized special needs and learning disabilities. Most kids who get GEDs do so within 9 months of arriving at TYC, which Krezmien says indicates they likely entered TYC with sufficient skills to pass the test.

Meanwhile, many students cannot reasonably be expected to ever get a GED and there's a lack of outcome measures to track their progress or that values choices, e.g., to enter vocational programs. Speaking of which, the report heaped praise on TYC's vocational programs, but lamented that only about 10% of students were eligible.

Moving youth during the school day requires adequate JCO staffing or else cuts into instruction time, according to the report. "We observed instances where the movement of youth took as long as 30 minutes, despite an allocation of only 5 minutes to movement. ... We observed numberous instances of decreased access to education as a consequence of youth movement practices."

Krezmien's overall assessment of educational quality was poor, as expressed in these excerpts:

"We found classes that were typically organized based on correctional needs, which resulted in classrooms with students of different ages, different academic abilities, and in different courses. The scheduling practices negatively impact the educational program and limit instructional opportunities. We found the instructional practices to be generally poor. We found inconsistent curricula across facilities, and sometimes within a facility."

"The absence of a unified curriculum aligned with the State standards, and flexible to meet the needs of high and low performing students as well as students with disabilities is inappropriate. ... Students frequently move across facilities that have different curricula that are not integrated. This negatively impacts student learning, student credit accrual, and teacher responsibilities as they attempt to match a student’s transcript to programs with different curricula."

"The primary instructional practice observed at TYC education programs was broadly considered “self‐paced” and individualized instruction. This usually consisted of students working in worksheet packets independently or students working with paper assignment sheets and in text books independently. There was no direct instruction in most classes, and limited opportunities for student‐teacher engagement.

"Many of the observations revealed a lack of instructional activities whatsoever. There were numerous instances of teachers working at the computer while students slept, talked with each other, or worked independently."

"The 'self‐paced' model of TYC facilities is an ineffective approach to education. There is no empirical evidence demonstrating the effectiveness of the practices implemented. The approach is not appropriate to the TYC population of learners."

"[N]one of the education programs in the security setting met the TYC education standards."

"We found the staff at the TYC institutions to be one of the strongest assets of the TYC education programs. However, we found that school cultures varied greatly across the facilities. In most facilities, teacher morale was low."

Overall Krezmien has produced an incredibly damning portrayal of the agency, made more so by his use of TYC's own written standards, outcome measures and federal law as evaluation benchmarks.

Today was the day Richard Nedelkoff originally proposed to the Governor the agency should come out of conservatorship, but that's clearly not going to happen. This publication evidences stunning levels of dysfunctionality at one of the agency's core missions - educating youth in its charge.

Kudos to Ombudsman Will Harrell for pursuing this evaluation and to Professor Krezmien for an outstandingly thorough and detailed assessment (including 75 specific recommendations). They've provided a much needed window for state leaders and the public on a critical and under-emphasized topic.

Jail costs, new criminal court driving Travis County tax hikes

From news reports I've seen, most jurisdictions in the state currently contemplating property tax increases are doing so to pay for pretrial detention at overcrowded jails and staffing overbuilt detention centers. Here in Austin, I've already discussed how the city budget has become bloated with public safety costs, and today the Statesman brings word that Travis County, too, will likely raise taxes to pay for mostly criminal justice related expenses:

The increase would pay mainly for a new county criminal court, increased fuel costs, a 3 percent pay raise for most county employees and 31 corrections officers to staff a new detention building at the Del Valle Correctional Complex.

Anti-tax activists in Texas for years have focused their ire on the "Robin Hood" school finance scheme and rising property taxes at public schools. But as far as I can tell, jails and other criminal justice-related expenses are driving local tax hikes in most Texas counties which have announced them.

At a time when 37% of arrests by Austin PD are optional (under state law, officers could use their discretion to write tickets for most of these offenders if top brass and local DAs would approve it), raising taxes to pay for staffing an overcrowded jail strikes me as a particularly bitter pill to swallow.

Where are all the anti-tax agitators when you need them? In my hometown of Tyler, the no-new-taxes crowd gets the connection, but clearly Austin, Lubbock and other jurisdictions remain willing to jack up property taxes ad infinitum to pay for jail costs, even when they could pursue other options.

Smith County commissioners fixated on jail building despite clear voter message

Hoping the third time will be the charm, this November Smith County voters for the third year running will get to vote on a jail bond proposal on the ballot that will boost the average property tax hit by $31.33 per year, from $381.11 to $412.44, the Tyler Morning Telegraph was told in an editorial board meeting pitching plans a new jail.

Three different jail proposals on two different ballots were overwhelmingly voted down in 2006 and 2007, but the commissioners court hopes a scaled down jail costing about $60 million will pass muster when more ambitious expansions failed before. Reports the Tyler Morning Telegraph ("Officials unveil scaled down jail facility for November ballot," July 30):

A new jail bond proposal on the November ballot will ask Smith County voters to approve a $59.6 million plan for 694 new beds in a jail tower adjacent to the existing downtown facility. Administrative offices would be built next to the new tower.

In a Tuesday meeting with the Tyler Morning Telegraph’seditorial board, Smith County officials presented the new plan, which calls for keeping both existing jail facilities —downtown and Low Risk. The plan is less than half the cost of the $125 million bond package voters rejected in 2007.

The new plan was put together by a committee that included Bobby Curtis, a leader of the group that opposed the 2007 bond proposition.

“We’ve worked on this for seven months, and I think it’s a great plan,” Curtis said. “I think the taxpayers will pass this. It’s a bare-bones plan. I think these tax dollars are well-spent.”

State Sen. Kevin Eltife, R-Tyler, was also part of the committee that developed the plan.

“This is a common-sense approach that solves our jail problem,” Eltife said. “It’s looking to the future; we’re building only what we need now, but we have the ability to build another tower when needed. I think it’s very smart long-term planning.”

Whether it's smart long-term planning, a new jail will inevitably be a lot more expensive and require greater tax increases than this article portrays. The biggest costs from jail building over time aren't from the debt payments for brick and mortar but from additional staffing requirements for jail expansion.

To meet minimum state staffing standards of one guard per 48 inmates, 15 guards would be required on each shift for three shifts per day to supervise 694 jail inmates. So for a full week 63 officers would be needed to staff such a jail when it's full, and more would need to be hired in order to supervise those employees, cover absenteeism, etc.. Assume an extra 25% are needed for such purposes and Smith County could easily need as many as 80 new deputies in order to staff such a facility.

Conservatively estimating $30,000 salaries for 80 deputies and ignoring, recruitment, training, equipment, insurance, and other additional costs for the moment, just staffing a 694 inmate jail could cost $2.4 million per year, much more if any significant amount of that work is done using overtime.

While some prominent jail bond opponents from the last campaign have signed off on the new plan, I suspect more than a few voters will continue to oppose costly jail building when other options to reduce the jail population aren't being pursued. Tyler District Judge Cynthia Kent recently told the commissioners court that “We cannot jail-build our way out of this problem.” For my part, until I see more details of the proposal, for now I agree with Judge Kent's assessment when she wrote about the new plan:

Insanity has been defined as "continuing to do the same thing and expecting different results." Smith County has ignored the needs of the justice system, judges, courts, and citizens and has since 1984 generally addressed jail overcrowding by building more jail bed space. I predict this new jail construction plan will cost millions of dollars, if approved by the voters, and once constructed the new jail will be overcrowded the first day it is opened. Sounds crazy to me.

In a sense, the jail overcrowding crisis has been a mitzvah for Smith County because it gave local pols incentives to pursue alternatives to incarceration that otherwise would not have been politically possible. But officials in my hometown have far from exhausted their options to reduce that burden beyond jail building, and they should do so before asking voters to sign off on more tax hikes for expanding the jail with no apparent end in sight.

RELATED: See a local Smith County blogger's reaction at taxrevolt.info.

See prior Grits posts tracking Tyler jail bond debates:

• Smith County appears headed for jail bond rejection hat trick
• Cynthia Kent: Tyler needs more court space not a bigger jail
• Memo to Tyler officials: Listen to your voters and use new tools to reduce jail overcrowding
  
• Counties that rejected new jails must now get serious about diversion'
• Voters who rejected county jails looking for better justice policies
• Texas prison and jail vote results
  
• Public participation required for vigorous jail debates
• The Jail that Ate Tyler' and other stories
  
• Debate intensifies over Tyler's $125 million 'Taj Mahal' jail
  
• Architect: Voters should accept nine-figure pricetag for new jail
  
• Tyler's jail alternative saves $1 million in first nine month
  
• Smith County voters have more options than building Taj Mahal jail
• Tyler's day reporting center reduces overcrowding, saves money
• 'Unsellable' Tyler jail still too small
• Tyler's Alternative Incarceration Center opens; DA thinks no one qualifies
• Tyler judge: End jail overcrowding with community supervision of nonviolent offenders
• More on Tyler's alternatives to jail overcrowding
• Incarceration Alternatives: From Smith County, a plan emerges
• Update: Tyler Alternative Incarceration Plan, Day Reporting Center funded
• Tyler voters: Jail bonds a 'No-No"
• Jail bond vote may become annual affair in Tyler

Wednesday Morning Roundup

I've got a busy day today but wanted to point out these stories that deserve Grits readers attention:

History's Judgment
Years after his death, DNA exonerations have tarnished the legacy of legendary Dallas District Attorney Henry Wade, according to a widely published AP report, declaring that "The new DA and other Wade detractors say the cases won under Wade were riddled with shoddy investigations, evidence was ignored and defense lawyers were kept in the dark." This will make some of the old-timers in the Dallas DA's office grumpy, but it's well worth a read.

Whistleblower Defended
Probation officers in Bexar County held a rally Monday in defense of fired union head Sheri Simonnelli, who was terminated after revealing erroneous urinalysis tests were being used to falsely accuse probationers.

High speed chases cause injuries, traffic deaths
When the Senate Criminal Justice Committee held a hearing earlier this month to assess causes of and trends about police officer deaths, traffic accidents were identified as the most common cause of on-the-job officer deaths - often occurring while driving with lights and sirens running, whether in a high speed chase or on the way to the scene of a crime. Driving accidents also generate danger for the public, not just officers, as evidenced by a police chase in Houston this week ending in the death of a local physician, a bystander not involved in the chase. Some dangers inherent to police work cannot be avoided, but more and more departments have implemented limits on high speed chases that significantly reduce danger to officers and the public. Reacting to a series of unfortunate traffic deaths, the San Antonio PD in 2001 created a policy setting a "speed limit for pursuing officers of no more than 10 mph over the posted speed limit, prohibited chasing people for traffic violations and ruled that officers must come to full stops at red lights at all times." (SA Express News, 4-7-01 - not online). High speed chases accounted for more than 7,000 deaths nationwide between 1982 and 2004.

Texas Drug Courts
Via StircrazyinTexas I ran across this comprehensive list of drug courts in Texas including contact info - there are more operating than I realized!

Commissioner wants off Waco jail privatization train

After previously vowing with his colleagues to consider only privatization-centered options as solutions to McLennan County's jail overcrowding problem, Commissioner Joe Mashek reversed course this week and called for ending the use of privatized jails, reported the Waco Herald Tribune ("Idea of county-run facilities debated as solution to overcrowding," July 30):

Mashek’s proposal would see the county again running the downtown jail, which has been leased to a private detention company since 1999. County jailers have argued for weeks that private companies hire lower-paid, less-qualified employees who pose safety risks for the public and inmates, as well as potential liability issues for the county.

The jailers also have voiced worries about losing their jobs if privatizing is pursued for the overcrowded State Highway 6 jail, now run by county employees.

The county’s contract with Community Education Centers, formerly CiviGenics, to operate the jail on Columbus Avenue expires Oct. 1. Mashek’s call for the county to take over operations of the 329-bed downtown facility could give the county more time to study long-term solutions to the problem, Mashek told commissioners Tuesday.

He told commissioners it seems the county is rushing into building a new jail when it might not be necessary at this time. He proposed the county form a committee to study the problem while taking back the downtown jail to give the county more breathing room.

“I feel that this step will give us a four- to five-year window to make a sound decision,” Mashek said. “There are too many questions left unanswered and other options that should be explored before making such an important decision on this major and expensive project.”

According to the Tribune Herald, "Precinct 2 Commissioner Lester Gibson sided with Mashek during the sometimes spirited, 45-minute discussion," so the previously avowed consensus for pushing privatization options appears to have momentarily evaporated.

Previously the commissioners court laid out four options to address jail overcrowding, all involving some measure of jail building and/or privatization, so Mashek's shift toward backing publicly managed jails represents an important shift in the local debate.

Earlier I'd suggested several strategies to reduce McLennan jail overcrowding without new construction. Machek's proposal would buy the county time to implement such solutions and avoid the jail becoming a bottomless pit for taxpayers.

Related Grits posts:

• What options besides jail building for Waco?
• A couple of Jillls with their eyes on a couple of bills
• Costs of privatization debated in Waco
• Deputies oppose Waco jail privatization plans
  

TCJC on probation officer turnover, 'revisiting treatment basics,' and whether a public defender can work in Harris County

There was so much good stuff in this month's e-newsletter from the Texas Criminal Justice Coalition I wanted to share these portions for the poor, uninformed souls who don't subscribe to their email list or regularly visit their website:

Find Out Why There is Turnover Among Texas Adult Probation Officers
Don't miss out on the Probation Advisory Committee's latest report, titled 2008 Texas Adult Probation Turnover Intention Study: Line Community Supervision Officers and Direct-Care Staff, which analyzes the reasons for voluntary turnover among Texas adult probation officers. Also check out TCJC's summary of this report here. (Grits' note: recommended)

Felony/Misdemeanor-Friendly Career Fair Coming Up
The Mid-Cities Human Resource Association and Tarrant County Re-Entry Initiative are hosting a Felony and/or Misdemeanor-Friendly Community Career Fair on Friday, August 15, 2008, from 9:00am - 4:00pm. Click here for Jobseeker and Employer registration, including event location, and terms and condition. Registration ends Friday, August 1, 2008.

Revisiting the Basics of Treatment
Are you a drug treatment provider who wants to learn more about effective treatment strategies? Check out the Institute of Behavioral Research's Summer 2008 Newsletter , which focuses on helping providers adopt a 'systems' perspective that emphasizes interim stages of early engagement and change as signposts for improving therapeutic effectiveness.

For more information, visit their website.

Indigent Defense Symposium in Houston: Considering Options for Ensuring Access to Quality Representation in Harris County
Harris County Commissioners Court is looking into the feasibility of creating a public defender's office to provide indigent defense services in the nation's largest urban jurisdiction without one. To facilitate a larger public discussion on indigent defense and the issues at stake in Harris County, the University of Houston Law Center will host the upcoming September 5th symposium, Achieving Quality in Indigent Defense - Proposals, Prototypes, and Policymaking.

This conference will bring together experts from Texas and around the nation to consider the potential for ensuring access to quality defense representation for those unable to afford a lawyer in Harris County. The registration fee for the symposium is $25 and it will qualify for CLE credit.

Visit the Center For Children, Law & Policy website for more information about the speakers and to register for the event.

For more information about the feasibility and effectiveness of public defender offices in Texas, the Task Force on Indigent Defense recently published its updated Blueprint for Creating a Public Defender Office in Texas. This 2008 report looks at existing public defender offices from diverse jurisdictions and discusses advantages and disadvantages that each county should consider when examining their own indigent defense delivery system. In addition, the report provides an initial public defender feasibility worksheet and a step-by-step guide to creating a public defender office.

Guards and contraband smuggling in prisons and jails

I'm not sure I've ever heard of a Rogaine-related smuggling offense before, but a former guard from a federal prison in Beaumont just received a two-year prison sentence after he "accepted money from inmates in exchange for marijuana, MP3 players, Rogaine and tobacco."

Cell phones are a more common and lucrative commodity. The incident reminds me of a recent New York case I noticed in which:

Two correction officers were fired for sneaking booze, cigarettes, marijuana and rolling paper to accused cop-killer Lee Woods. Another officer, a woman, is under suspicion of having sex with Woods and giving him contraband.

But of course, in state prisons the mother of all prison contraband cases is still unraveling at the Terrell unit south of Houston. The Back Gate recently posted these TV news reports on the topic to YouTube:

Low pay contributes to smuggling by staff; an extra $250 for bringing in a cell phone can mean a lot for employees scraping by on $2K or so per month. But there are also policy measures that would make a difference - notably searching staff on their way into the unit.

At the legislative hearing captured in the second YouTube video above, a CO predicted that if surprise searches were implemented at his unit, on any given day 8-10% of guards would turn around and walk away rather than submit to a search. Who knows if that's a correct estimate, but it's a disturbing one. If true, given TDCJ's staffing crisis it almost means the agency can't afford to rigidly enforce anti-contraband laws or some units won't have enough warm bodies left to stay open.

There's no more secure environment than a prison. If smuggling can't be stopped in that setting, no wonder it's such a struggle to keep drugs out of schools!

Abrogating Mexican murderer's rights puts Americans at risk abroad

Presidential candidate Barack Obama's perhaps premature victory lap overseas emphasizes the extent to which one of the major implications of the fall elections will be repairing America's image in the world after eight years of our government thumbing its nose at other nations.

By his second term, even President Bush began to shift policies hoping to repair our worldly image. Perhaps the most overt example was his advocacy on behalf of the consular notification rights of Jose Medellin, a Mexican national who raped and killed two teenage girls and is scheduled to be executed next week. The President maintains authorities should have notified Medellin of his right to contact the Mexican consulate. As described in an editorial from the Waco Tribune Herald ("Texas should honor treaties," July 29):

The Texas Court of Criminal Appeals defied Bush, the World Court and international opinion by refusing to hear the Medellin case.

Although Article VI of the Constitution says that “all treaties made . . . under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby,” the U.S. Supreme Court ruled 6-3 that since Congress failed to provide a method to implement the treaty, Texas does not have to abide by the treaty.

Even if the effort in Congress succeeds in ensuring that the treaty is honored nationwide, it will not come before Medellin’s Aug. 5 execution date.

The case against Medellin is strong. Nothing will be lost if it is reconsidered in line with the treaty.

A lot could be lost, however, if other countries with questionable legal systems follow the Texas example by ignoring the treaty and refusing to allow Americans arrested in foreign countries from consulting with the American Consulate for legal assistance.

The Medellin case needs to be reconsidered.

Many folks think of Waco as a parochial place, but this opinion piece promotes a worldly wise perspective: Anyone who's traveled extensively in countries with "questionable legal systems" will appreciate the importance of consular notification rights. I've traveled a lot in Mexico and Turkey over the years, for example, and both are places where I'd be pretty darn scared to be arrested without access to the American consulate. (Take a look, for example, at recently revealed interrogation techniques used by Mexican police.)

Though I'll be surprised if it happens, I agree with the Tribune editorialist that the Board of Pardons and Parole and Gov. Perry should "quickly intervene." If Texans want our own rights to notify the US government upon arrest respected by foreign criminal courts, we simply must reciprocate. Governor Perry and the parole board should stay the execution at least until Congress has time to act. There's simply no need to risk giving other countries an excuse to disdain America or her citizens' rights.

UPDATE: Says the Dallas News in its own editorial, "For the good of the country, we join Attorney General Michael Mukasey and Secretary of State Condoleezza Rice in urging [Governor Perry] to grant a stay of execution."

Austin budget crunch caused by massive police raises

Belatedly realizing the city's bloated public safety budget necessitates draconian fee hikes and slashing basic services, the Austin city council must now change course and "think first of the Austin taxpayers," said the Austin Statesman in a Sunday editorial. Police and firefighter unions must not be given the "keys to the vault" during meet and confer negotiations, said the paper. Here's how they described the budget impact of rising police pay:

Under the proposed budget, branch libraries will have to close on Thursdays or Fridays, and the Parks and Recreation Department will be short staffed. Also, trash collection fees will rise 40 percent and water bills by 7 percent. But that picture will darken considerably if the police, fire and EMS unions continue to demand — and receive — raises above those given other city employees. After five years of public safety's 2 percent premium, there is no good argument to continue it.

A recent city report found that Austin's per capita spending on the police department grew 84 percent over the nine years ending in 2006. That was twice the per capita increase of most other Texas cities. ...

In the past five years, the City Council has spent $53 million just on the extra raises for public safety employees. That has propelled police, firefighters and EMS employees into the top pay ranks not only in Texas but around the nation.

Editorial writers said the proposal to boost pay even higher is, "in a word, outrageous, and City Manager Marc Ott's negotiators should unceremoniously reject it." I tend to agree, but would add that the advice comes many years too late.

Even so, the Statesman said, "The unions are negotiating from a position of strength ... They are powerful sources of campaign money in city elections and helped elect a majority on the council." That's true, and it's been that way in Austin for quite a while. Perceived as liberal, Austin councilmembers tend to fear being labeled soft on crime and so in recent times have thrown money at public safety unions hoping to deter such criticism.

I remember well the City's decision in 2001 to give police a 23% pay raise over three years, then in 2004 when dozens of citizens testified against the current contract containing even more extravagant raises. So that's eight years running with fat pay hikes well beyond what other city employees received.

Ironically, that strategy arguably reduced overall public safety resources. Rather than increase the number of officers to keep up with an expanding population, over the last decade Austin police became the highest paid officers in Texas, and when adjusted for the cost of living, the highest paid in the nation. Not only that, the 2004 contract in particular made it more difficult to discipline bad cops and gutted police oversight mechanisms.

The City Council can shut the barn door now, and should, but the horse has already run away.

Related recent Grits posts:

• Austin City Council gets 'wake up call' on police budget crisis they knowingly caused
• With safety costs rising, why won't Austin use citations for low-level offenses?
• Self-inflicted wounds: Police contract costs driving need for library closures, fee hikes

Smith County will create pilot mental health court

When conservative Smith County in Deep East Texas decides to implement a mental health court, it's safe to say the trend toward creating courts with specialized probation caseloads is now in full swing everywhere in the state. Reports the Tyler Morning Telegraph ("Pilot program for mental health court approved," July 28):

Smith County commissioners today laid the groundwork for a pilot mental health court, which will seek to divert non-violent mentally ill arrestees from the criminal justice system.

“It’s a crisis every county in Texas is facing now,” said Dr. David Self, chief forensic psychiatrist for the Rusk State Hospital. “Far too many mentally ill people are finding their way into the criminal justice system.”

Budget cuts at the state and federal levels have reduced resources for care for those with serious mental illnesses, he said.

“If they’re not being served in mental health system, they’re finding their way into the criminal justice system,” Self said. “Jail populations are typically 25 to 33 percent persons who are experiencing mental illness. Smith County falls right in there.”

And jails aren’t where the mentally ill should be, he added.

“Jails don’t do a good job of treating the seriously mentally ill, but that’s not their fault,” Self said. “That’s not what they’re designed for.”

Most mentally ill inmates are in jail on non-violent misdemeanor offenses, he said.
Valerie Holcomb, with the Andrews Center, said such inmates are much more expensive to incarcerate.

“It costs twice as much to keep a mentally ill inmate (in jail) and they stay in jail three times longer,” she said.

But a mental health court, which would focus on intensive supervised probation, can save the county money. ...

“We’re all focused on the jail population, and that’s a nice side benefit, but the focus of this is getting these people proper care,” said Commissioner Bill McGinnis. “And that’s what I’d like to see.”

Smith County officials are among a handful of Texas trailblazers regarding specialty courts for the mentally ill. District Judge Marc Carter operates a mental health court in Harris County, and Grayson County officials are also pursuing the idea. Some other jurisdictions have created specialized public defender offices to handle these clients.

In a related story, the Temple Daily Telegraph reports that Bell County officials are similarly struggling with a lack of mental health services and the resulting pressure on the jail to provide those services ("Mentally ill don't belong in the jailhouse," July 27):

A 2003 state budget crunch took more than $100 million out of the community MHMR system. But rather than this being an anomaly, it looks more like a pattern. In 1994, Tietje said his budget was $16.5 million. It was slashed to $12 million in 1995, a 25-percent cut.

“A result of that budget cut, we lost a Fort Hood work program that served 200 people,” Tietje said.

Closely supervised program participants cleaned buildings and restocked the commissary on base.

Budget constraints have also contributed to the closing of a three-quarter-way house in Gatesville that helped get people back on their feet. It had 30 beds and was a place where people could stay and look for work while they stabilized on their medications.

“It was a structured environment that made sure they got meds and food,” Tietje said.

And the Gatesville center has not been the only facility that has been shuttered.

Clinics in Bell, Coryell, Hamilton, Lampasas, and Milam counties have all been closed.

Said District Judge Martha Trudo:

“We do not do a good job of taking care of the mentally ill in Texas. There are tremendous waiting lists, doctors won’t see them unless they get picked up and put in jail. Then we are obligated to do it.

“A lot of people can function and work if they have support.”

Regular readers know I'm a big fan of using stronger probation mechanisms like specialty courts to overcome barriers to success for offenders with addiction or mental illness. Traditional probation sets these offenders up to fail without recognizing the special circumstances and problems that brought them before the court in the first place. But clearly a much better solution would be to provide better mental health care on the front end to keep folks out of jail in the first place.

RELATED:

• Mental health courts: A strategy that works?
• Grayson County applies to create mental health court
• Federal bill backing mental health courts a teaspoon of remedy for an oceanic problem

Rozita Swinton's Bad Call

Newsweek supplies the most extensive background yet published in the mainstream media about Rozita Swinton, the hoaxer whose prank phone calls sparked the Great Eldorado Polygamist Roundup. Give it a read.

Though Grits focus on the topic has recently lagged, see more news from the Eldorado case:

• AG Greg Abbott at US Senate hearing on polygamist groups
• Harry Reid calls polygamist groups a "form of organized crime"
• Eldorado custody battle separated into 234 separate cases

Allowing invited graff best way to reduce unwanted graffiti

Last summer Grits featured a series proposing a three-pronged approach to graffiti enforcement based on restorative justice principles consisting of enforcement, rapid cleanup and provision of space for invited graffiti art. Everybody does the enforcement part, or tries; some municipalities have embraced the rapid cleanup idea; however scarce few have committed resources to providing spaces for invited art. In my view, all three legs of the stool must be in place to significantly reduce uninvited graffiti.

While writing that series, I was struck by the lack of significant public policy research on the subject given how long graffiti has been with us and how much the practice costs taxpayers. So I was pleased to see a report from the Denver Post ("New study on graffiti, crime correlation," July 20) about a criminologist's project to research graffiti and evaluate the effectiveness of government responses:

[Criminologist Noah] Fritz, a former crime analyst at an Arizona police department, will be the first one to say he doesn't have all the answers.

He knows that graffiti in Denver runs the gamut from obvious gang communication to the artful mural on the back of the garage. He knows that graffiti here, and probably nationally, is largely misunderstood and that painting over it sometimes dares the taggers into a cat-and-mouse game.

What he hopes to probe -- with the help of his criminology students -- is: how graffiti in a neighborhood correlates to crime (he'll layer graffiti-defacing maps over crime data); why do kids do it (he'll interview 18-year-olds who may know taggers and compile personal stories) and whether there's anything the city can do about it (a communal graffiti wall? A celebration of graffiti as art?) that would deter taggers from defacing private property.

Last fall, about 25 Metro students walked the perimeters of the census blocks included in the project, taking pictures of everything, even the smallest of graffiti scratches. ...

The students picked the blocks scientifically and are taking the summer and most of next school year to analyze the types of graffiti. Then they will look at possible crime correlations.

Fritz also wants to see if the graffiti elimination project underway is working. Most of the mapping research was completed last October. Fritz wants to see whether this October there are fewer marks.

"I think it's important, when a government entity puts resources into a project, to see if their strategies are effective," Fritz said. "We always try to be more efficient, but we should be thinking more about whether they are effective."

Key to addressing graffiti (it cannot be "solved," only managed) is recognizing Fritz's important observation that removal alone potentially "dares the taggers into a cat-and-mouse game." As Proximo from Dallas Sidebar put it, there is a "subversive component" to tagging - an element of youthful rebellion that drives the activity. As I wrote this spring, "Playing cat and mouse with law enforcement feeds into a cycle of gamesmanship taggers enjoy, and bored teens with a spray can will inevitably win those matchups just because there are too many of them and police have better things to do."

That's why I think creating invited graffiti spaces must be part of the solution. Indeed, it's often the solution private property owners come up with themselves after feuding with graff writers for years. From the Post:

Mike Allard said he thinks he has found one solution.

The manager of Headed West, a tobacco shop on South Broadway, battled the "gangbangers in Englewood" for months as they tagged the sides of his store. Businesses are fined if they don't paint or wash over graffiti in three days.

So a year and a half ago, he hired some former graffiti artists to draw a mural on both sides. Allard is now battling the city about signage laws but says the store hasn't been tagged since the drawings went up.

"If you don't consider the sides of our building art, then I don't think you can understand art," Allard said.

Fritz and Allard are on the right track, but Fritz's idea of a communal graffiti wall to me doesn't go far enough. One wall, after all, won't provide enough space for a long-term solution.

Mainstreaming graff artists with talent should be an overt goal of public graffiti policy. Make me philosopher king and I believe cities should have civilian graffiti coordinators who manage cleanup crews made up of probationers and coordinate making public and private spots available for invited graffiti art.

Our current approach to graffiti essentially punishes victims. Taggers are seldom caught or prosecuted, so the main way municipalities enforce anti-graffiti ordinances is by fining property owners, essentially victimizing them a second time.

I drive by spots every day that are either covered with graff or where the city is constantly painting over new graffiti - overpasses, storm drains, utility boxes in the right of way, light poles, backsides of road signs. We routinely see graff on these spots, anyway. In most of these cases I'd prefer Mr. Allard's solution - inviting graff artists to do a nicer, more significant piece that will "ride" for much longer than typical outlaw graff.

In many cities, authorities have identified the most prolific local taggers, though it's virtually impossible to arrest them. But knowledge of who they are opens up opportunities to solicit invited graff. Bottom line, in an era when graphic arts skills are in high demand, graff artists with talent should be brought out of the shadows and encouraged, where possible, instead of shamed and prosecuted.

A local graffiti coordinator could assist private interests to hook up with graffiti artists, inviting higher quality graff to preemptively fend off more routine, destructive tagging. Businesses whose walls are tagged repeatedly, homeowners with fences facing the street, utility companies whose boxes are constantly defaced - after years of scrubbing or painting over unwanted graff, I imagine quite a few property owners may be ready to decide, "if you can't beat 'em, join 'em."

In its most fully developed form, perhaps a citywide web-based database could be accumulated of spots where property owners want to invite graffiti and graff artists could submit a sketch of what they want to do for approval by the landowner.

None of this will eliminate tags used for gang communications; for that brand of tagger, the rapid cleanup component and the risk of criminal prosecution remain the only viable tools. But given the immense sums cities routinely spend on graffiti cleanup now with little result, to the extent more artistically inclined graff writers can be diverted to invited venues it would save taxpayers money, reduce the volume of criminal graff, and increase the amount of public art in our cities. That result seems like a win-win all around.

See related Grits' posts on graffiti law and policy solutions:

• Toward a restorative graffiti policy
• Graffiti, art, vandalism and subversion
  
• Graffiti solutions: A cost-benefit analysis
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
  
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
  
• Adidas: Graffiti is legitimate art
• Grading graffiti? What do youth want?
  
• Graffiti on the brain and around the world
  
• Digital graffiti, or, Is there something to a wall that wants us to write on it?
• R.I.P. Victor Montano: Houston graffiti artist
• Can you be arrested for public knitting?
• Amarillo PD pressures businesses to file graffiti charges
  
• Out of our minds: Isn't felony graffiti overkill for sixth graders?
• Charging graffiti as a state jail felony?
• Reduce graffiti by pursuing the crime, not the criminal
• Graffiti in Austin up 400% since 2002
• Austin lags on important third component of graffiti policy
  

Offer online comments to the Sunset Commission on TYC, juvenile probation, and jail standards commission

Once every 12 years Texas state agencies undergo what's known as a "Sunset" review where the Legislature evaluates the agency as a whole and decides whether it still serves a function or deserves to be eliminated. Most agencies are routinely continued, though some agencies are permanently "sunsetted," or eliminated. But the Sunset bill that must pass to continue the agency frequently becomes a vehicle for substantial reforms and adjustments identified through the evaluation process.

Agencies submit their own staff reports, then the Sunset Commission staff prepares its own report with input from the public and ultimately a public hearing before the members of the bicameral commission.

The public input period ends on July 31 (this Thursday) for three criminal justice agencies undergoing Sunset evaluations this year: The Youth Commission, the Juvenile Probation Commission, and the Commission on Jail Standards.

Here's an easy to use online form for providing comments to the Sunset Commission. I encourage anyone with specific concerns about an agency under review to use it. You can access agencies self evaluation reports for more background; they're quite informative and may answer some of your questions or at least give you the agency's position on issues you care about.

Deadlines for comments for the Department of Public Safety and the Commission on Law Enforcement Officer Standards and Education has already passed, but Sunset staffs' final report has not bee issued so if you had any specific suggestions for them, it couldn't hurt to submit it anyway.

For more information see the Sunset Advisory Commission's website.

TDCJ publishes FY 2007 prison stats

The Texas Department of Criminal Justice just published its annual statistical report (pdf) for Fiscal Year 2007 containing a great deal of data relevant to topics frequently discussed on this blog. Let's walk through a few highlights.

In broad overview, at the end of FY 2007 TDCJ held 152,661 offenders in prisons and state jails and supervised 431,495 people on probation and 103,122 parolees. Tack on the 71,000+ currently incarcerated in county jails, and Texas' criminal justice system presently has more then 3/4 of a million people under its control - about one out of every 21 adults.

Just under half of TDCJ inmates were convicted of violent offenses (49.7%). Another 17.1% of inmates committed property crimes (mostly burglary) and 19.6% are incarcerated for drug offenses, mostly possession only; 3.8% are incarcerated for DWI.

TDCJ received 73,525 new prisoners in FY 2007 and released 72,032, representing significant growth but a much slower rate than in recent years. The youngest offender who entered TDCJ last year was 15 years old; the oldest was 88.

The good news: the parole board clearly has plenty of leeway to manage the inmate population. Of those incarcerated in prison (as opposed to state jails or SAFP programs), a whopping 66% are currently eligible for parole.

The six largest counties account for just more than 50% of TDCJ residents:

Harris 19.5%
Dallas 12.5%
Tarrant 7.3%
Bexar 6.4%
Travis 3.4%
El Paso 1.6%

An interesting capital punishment note ... Texas only recently implemented an option of Life Without Parole (LWOP) as an alternative to the death penalty in capital cases. In 2007, TDCJ received 51 new capital convicts - 37 of them received sentences of LWOP, while just 14 went to death row.

I may extract another post or two out of this information in the coming days, but wanted to share the full report (pdf) with readers ASAP. Let me know in the comments what other data you find informative or useful.

Criticisms aired of Nacogdoches private prison proposal

In Nacogdoches recently, the head of the local economic development corporation told officials the prison would be so nice people would "want to break in." But a newly formed local group and students at Stephen F. Austin University are opposing plans to open a new private immigration detention center in that county.

Some criticism of the idea comes from surprising quarters: "Prisons are an inherently governmental function," says East Texas Congressman Louis Gohmert," And I struggle with whether or not we should have private prisons at all."

In the Nacogdoches Daily Sentinel, reporter Andrew Goodridge yesterday offered up one of the best media analyses I've seen in quite a while on the pros and cons of private prisons for rural communities ("Dollars and Sentences: Prisons more than just an issue of economics," July 26). Citing quite a bit of academic research on the subject, Goodridge concludes that:

recent research shows that prisons aren't necessarily the economic boon they were once thought.

And in rural areas, prisons have, in some cases, proven to be more of a hindrance to economic development than a help.

Goodridge cited other research questioning cost saving claims of private prisons, including a recent criminology article that declared there's:

"no reason to believe that private prisons can or are saving money as compared to public prisons."

A 2001 Bureau of Justice Statistics report also states that "savings simply have not materialized."

What's more, writes Goodridge, "Because these prisons are privately owned, they do not have to comply with the Freedom of Information act, and they tend to refuse access to records and files."

These excerpts are just a taste from a longer, substantive piece that deserves to be read in its entirety. (Our pal Bob Libal from the blog Texas Prison Bidness was among the many sources quoted.) Scant few local media outlets provide their readers with this level of background and detail before officials make decisions about jail and prison privatization, so Goodridge and Sentinel editors deserve credit for going the extra mile.

SEE ALSO: Recent coverage of private prisons in Texas from Mother Jones, via Texas Prison Bidness.

Jail deaths due to medical neglect seem too frequent this year; Should state regulators do more?

Inmate deaths in county jails may be bubbling to the surface as a statewide issue of concern in 2008. Several recent cases collectively give me the sense that we're starting to see patterns that inevitably will become more common with so many people locked up. Most famously, the feds are investigating the Harris County jail after 12 inmates died and two more committed suicide during a 12-month span, but that's just the tip of the iceberg to judge by recent revelations.

In Potter County (Amarillo), a double murder suspect hung himself in the jail recently, and more troubling, a mentally ill probation revokee died after two use of force incidents, apparently spending at least two to three days in what a doctor said would have been excruciating pain leading up to his death without receiving proper medical attention. Reported the Amarillo Globe News ("Potter Sheriff defends lockup," July 24):

Michael Lee Dick, 33, was found dead in an isolation cell Saturday during a routine check. A preliminary autopsy Tuesday revealed he died of peritonitis caused by a perforated ulcer that could have caused severe pain in the hours leading up to his death.

The condition is irritating and can cause excruciating abdominal pain, said Dr. Kuldip Banwait, a gastroenterologist with Amarillo Endoscopy Center.

Jail staff is required to check inmates at least every 30 minutes, Boyter said, and Dick was on a 10-minute watch.

"As far as I know, he really didn't show any signs of medical problems," Boyter said.

The first time an officer checked on Dick in the isolation cell he was fine and sitting on the bed, Boyter said. He was lying on the bed 10 minutes later, so the officer went into his cell and found him unresponsive.

Banwait said peritonitis is an inflammation of the lining of the abdominal cavity. The lining supports abdominal organs and serves as a conduit for their blood vessels. He said someone suffering from peritonitis could die quickly.

"It depends on how young the person is," Banwait said. "It could be two to three days if not treated."

An Amarillo police lieutenant told a TV station, "we know that there was force used on him two different times and we know that injuries can linger, but we were told it wasn't an injury caused by assault but medically, but we are still investigating." Whether Dick's death resulted from injuries at the hands of officers or a pre-existing medical condition that jailers ignored, the county jail is still on the hook.

We still haven't learned much about the recent death of a 21-year old woman in the Travis County jail.

Meanwhile, in East Texas we find a case where a woman being held pretrial on a drug case in Henderson County was released on personal bond, driven immediately to the hospital and left there where she died eight days later. Reported the Athens Review:

Henderson County Sheriff Ronny Brownlow on Wednesday responded publicly about allegations he is retiring early in connection to the death investigation of a former county jail inmate. ... The 10-year sheriff said Wednesday that his plan to retire dates back at least until last fall, when he began serious discussions about it with those close to him.

Brownlow sent a letter to county officials earlier this month informing them of his intention to step down from office on July 31 — roughly five months before the official end of his term. The letter is dated July 8.

The announcement came during a time when information regarding the death of 56-year-old Debra Lee Newton began to surface. Newton was arrested on a charge of possession of a controlled substance on Feb. 18. Sometime in April, she allegedly became ill while incarcerated in the Henderson County Jail.

On April 25, the sheriff’s department asked that Newton be released on a personal recognizance bond. That request was granted, and Newton was taken to East Texas Medical Center Athens. She died eight days later, on May 3 — prompting allegations of impropriety on the part of sheriff’s department officials in their handling of Newton.

Henderson County District Attorney Donna Bennett’s office subsequently asked the Texas Rangers to investigate the circumstances of the death. That investigation is ongoing with Athens-based Ranger Trace McDonald. Lt. Pat McWilliams, a public relations officer, said the sheriff’s department welcomes the investigation.

“... We’re certain there’s no conspiracy and that the patient received adequate medical treatment,” McWilliams said last week.

Maybe there was "no conspiracy," but clearly the patient did not receive "adequate health care." She was in her death throes already when they released her on personal bond after two months in jail to take her to hospital. Surely it was clear she needed significant medical care well before that panicked, last-ditch decision!

At a time when the Texas Commission on Jail Standards is undergoing Sunset review, this news makes me wonder whether the state's inspections adequately assess county jails' healthcare delivery or even track the number and causes of jail deaths. That's a lot of deaths recently attributed to inadequate jail medical care. Will it just be tolerated?

Police union backs using citation authority at Austin PD

It pleased me to see the Austin Police Association came out in favor of using citations instead of arrests for low-level offenders in an article on the topic in this week's Austin Chronicle:

Given the stresses on the city's budget, "if we really want to be fiscally responsible, we have to have all these options on the table," said Austin Police Association Vice Presid­ent Wuthipong "Tank" Tantaksinanukij. "This is really talking about, in reality, expanding the resources available to officers. We're open to anything that will help us do the job better and free up the manpower of our officers."

APA's parent union, the Combined Law Enforcement Associations of Texas, also backed the original legislation at the Legislature.

See more from the recently formed group Austin Public Safety Solutions, and also related recent Grits coverage:

• With safety costs rising, why won't Austin use new citation authority for low-level offenses?
• Self-inflicted wounds: Police contract costs driving need for Austin library closures, new fee hikes

Baylor studying neuroscience and the law

Having written a couple of posts recently on the intersection of cutting edge neuroscience and the law, I was pleased this afternoon to run across the website of the Baylor College of Medicine's Initiative on Neuroscience and the Law. Especially useful, they've posted their conference materials (pdf) and webcasts of each presentation from their conference in May.

Jail costs driving tax hikes in Lubbock

According to the Lubbock Avalanche Journal ("Lubbock County jail costs may sharpen tax bite," July 25), taxpayers in the Hub City must pay higher taxes to keep the county jail full and fully staffed:

The Lubbock County sheriff doesn't think the county can support its new jail without raising taxes.

Sheriff David Gutierrez and some of his top staff on Thursday asked county commissioners to allocate more than $20 million dollars to fund the jail, as well as nearly $8 million to support the county's law enforcement division.

"I don't know how you can do anything with this budget if you don't do something with taxes," Gutierrez told commissioners.

Eyewitnesses and the 'feeling of knowing'

I'm increasingly convinced that recent advancements in neuroscience will, in a very few years, begin to revolutionize several fundamental sets of assumptions on which the criminal justice system is presently based - most immediately regarding eyewitness identification and the reliability generally of witness testimony.

In Dr. Ginger Campbell's Brain Science Podcast #42, she reviews a book by Dr. Robert Burton - On Being Certain: Believing you are right even when you are not - focusing on a question that comes up frequently in cases resulting in DNA exonerations involving erroneous eyewitness identifications: How is it that witnesses can believe to their core they are testifying accurately but identify alleged perpetrators who absolutely didn't do it?

How can one be certain, in other words, and at the same time utterly and profoundly wrong?

According to Dr. Burton, "certainty" is really the equivalent of an emotion - it's a feeling, not a conclusion, that has "involuntary neurological roots." We don't know what makes us feel certain because in a literal sense by the time we do, the information no longer exists. When our synapses fire, they release and extinguish all the information about why they fired in the first place - the conscious mind, OTOH, merely notes whether they did or they didn't. Those subterranean "hidden" impulses underlying our thoughts and behavior constitute what psychologists consider the subconscious or unconscious mind.

There is no physiological distinction between the processes in our brain that generate conscious or unconscious thought, says Burton. That distinction has a philosophical but not necessarily a biological basis; for the mind, conscious and unconscious thought are an intermingled process that simultaneously includes both types of brain activity. According to this view, the "feeling of knowing," i.e., certainty, is an unconscious impulse that attaches itself onto conscious ideas and makes us believe them.

From the research Burton cites, you get the sense that people's certainty in their beliefs routinely outdistance the accuracy of their memory, a notion which has important implications when evaluating eyewitness testimony. Burton detailed the results of a study performed following the Challenger space shuttle disaster, where an academic interviewed 106 students the day after the tragedy then again 2.5 years after the event about their memories of where they were, who told them, how they reacted, etc. Half the respondents made errors compared to their original recollection, and a quarter of the accounts were significantly different than students originally remembered. Fewer than 10% remembered all the details the same. Many students whose stories had changed, however, maintained a high degree of confidence in their later, false recollections ... even after being shown their original answers in their own handwriting.

This "feeling of knowing" is "not under conscious control." Citing the example of a baseball player who physically must begin to swing before the pitcher releases the ball but says later he reacted to the trajectory, Campbell says, "Our brain makes us think that it knows things that it can't really know." (Many optical illusions similarly rely on the brain's ability to force itself into such moments of cognitive dissonance, thinking it knows things that cannot be.)

Burton calls this sense of being right "thought's original yes-man." But what is the genetic benefit of a feeling of knowing that's sometimes actually false? Burton says the feeling stems from the brain's pleasure-reward system in the upper brain stem, using dopamine as its key neurotransmitter. The pleasure-reward mechanism activated by certainty, he says, connects to parts of the brain that manage both emotion and cognition.

This sense of certainty could be an evolutionary adaptation to confronting abstract choices that have no clear cut answers in the face of perilous threats, says Campbell. Without this internal reward system endorsing the correctness of our actions, we could be paralyzed by fears and uncertainty in the face of immediate danger. All the talk of evolutionary adaptations, she and Burton emphasize, are speculative explanations, but it's a reasonable hypothesis for why our biological reward system might be hardwired that way.

The brain dynamics involved with certainty are essentially similar to patterns of addiction, said Burton, with the brain getting satisfying rewards in the form of a dopamine boost that reinforce certainty just like addicts get a dopamine jolt from drugs through the same expectation-reward mechanism.

In other words, Drs. Campbell and Burton think people can be addicted to their own beliefs in the same way an addict might be hooked on heroin or meth. Burton wonders if humans may have an "addiction to the pleasure of the feeling of knowing." Burton thinks neuroscience should "let go of the myth of the autonomous, rational mind" able to overcome its own subconscious prejudices, insisting that "The feeling that a decision is right is not the same thing as providing evidence that it is right." Indeed, when the beliefs in question are memories, as evidenced by the Challenger experiment, they may be simultaneously quite mutable and firmly believed.

The feeling of knowing cannot be dismissed, says Campbell, just because it occurs in parts of the brain where its functions are obscured. However, Burton's findings dictate that a feeling of certainty should not be considered a substitute for corroboration. "In real life we constantly make decisions with incomplete information," she says in conclusion, "but we also seem to have a tendency to feel certain about these choices."

What are the implications of these findings for the raft of DNA exonerations that followed erroneous eyewitness identifications? For starters, perhaps juries would be less swayed by a witness testifying with "certainty" if it were widely understood that that's really an emotion instead of a conclusion? What's more, when a person feels "certain" they're more likely to overlook alternative explanations and less likely to question their own assumptions.

I'm sure there are many other implications for this research in the criminal justice arena - what else comes to mind?

Dr. Campbell's podcast was a bit on the long side (about an hour) but well worth listening to in its entirety. She does a great job of breaking the subject down for the non-expert listener, and Burton's book sounds interesting as well. I can't help but believe some of these ideas will percolate up from the hard sciences into the law and the courts before too very long.

Assassination of Mexican prison warden highlights out of control border security crisis

Just more than halfway through 2008, Ciudad Juarez across the river from El Paso has witnessed more than 500 drug-related murders out of 1,800 or more this year nationwide. The most recent victims were a prison warden and his bodyguard:

A group of hitmen armed with automatic weapons ambushed the head of a giant prison in a northern Mexican city on Thursday soon after he received threats on his life from suspected drug gangs, said police.

Salvador Barreno, 66, was leaving work at the largest jail in Ciudad Juarez when a group of men with assault rifles chased down his car, killing him and a bodyguard who was driving.

The car was riddled with more than 80 bullet holes, according to local media. Barreno made it to a hospital but died in surgery. His bodyguard was killed instantly.

The prison director had been receiving threats, likely from powerful drug cartels, before his murder, police said.

Last week Alberto Varela, the head of security at the same prison, was killed in a similar attack after his name appeared on a death list pinned on police offices in May.

Drug gangs have hung banners with the names of dozens of policemen around the city near the U.S.-Mexico border this year and have made good on some of their threats, murdering more than 10 of the officers picked out.

This is all happening right at America's front door, though you wouldn't know it from the US response. Increasingly sophisticated and dangerous drug traffickers in Mexico have begun using car bombs and submarines, murdering or kidnapping police officers, and engaging in open public shootouts both with rivals and police, all the while bribing American peace officers and even expanding their violent tactics onto US soil.

More and more I fear that this crisis will be allowed to fester until it's magnitude is so great it can only be resolved through martial law and draconian violence. Things are getting pretty scary down on the border and President Felipe Calderon's government appears increasingly impotent in the face of cartels' firepower. On the US side, new enforcement expenditures by states and the feds have either done nothing to reduce the crisis or made things worse.

If politics were about issues that matter instead of issues that poll well, we'd see cartel violence and US drug policy become a central debate point in the US presidential race. We appear to be at a turning point, and right now things are turning decidedly in the wrong direction.

Reform commission urges abolition of California youth prisons, shifting juvie justice to counties

Earlier this year Senate Criminal Justice Committee Chairman John Whitmire urged "abolishing" the Texas Youth Commission and moving most juvenile justice functions to the counties. His proposal enjoyed a mixed reception, largely because the political will seems lacking to pay for adequately beefing up capacity at the counties.

So I was particularly interested to see that in California, the "Little Hoover" commission this week endorsed exactly that approach - essentially abolishing California's juvie prisons and forcing counties to carry the entire load. California already moved all but 1,500 or so juvenile offenders back to the counties in response to a court decree in 2007. (See the report.) From the commission's letter to the Governor:

In shifting responsibility to the counties for hundreds of California’s youth offenders, the state recognized that its juvenile justice system cannot be reformed without radical change.

Though prompted by cost concerns, the realignment of responsibilities to the counties was the right policy move, one previously recommended by this Commission and others. Many counties have demonstrated that they can provide programs and treatment to youth offenders who need to turn their lives around in settings that allow them to reintegrate more successfully into their communities.

Once realignment is complete, the number of youth offenders in state hands will shrink to fewer than 1,500. The annual cost of providing services to each ward, however, next year will rise to $252,000. This startling figure reflects the overhead expenses of a system built to serve a far larger population, the cost of reforms required under a court-supervised consent decree and the complex needs of these seriously troubled youth. Californians may fairly ask what they are getting for this outlay and whether other strategies can better deliver public safety and youth rehabilitation. The state has made slow, yet undeniable, progress. Still, advocates for youth offenders, frustrated by the pace of reform, have asked a court to place the juvenile justice system in receivership.

Whatever the court’s decision, the state’s costs per ward likely will increase as juvenile programming and treatment services are expanded and its crumbling facilities continue to age. The state’s master plan for renovating or replacing its juvenile facilities, promised to legislators, is long overdue. The delay may mean that the cost of bringing California’s facilities in line with current programming requirements or replacing them is unaffordable, particularly in light of the current budget deficit.

The prospect of ever-higher outlays for an ever-smaller juvenile population in state custody should prompt policy-makers to extend realignment to completion. The Commission recommends that the state begin planning now to ultimately eliminate its juvenile justice operations and create regional rehabilitative facilities for high-risk, high-need offenders to be leased to and run by the counties.

California is using block grants to counties to enforce use of best practices via contract, in much the same way the Texas Legislature made new money available to adult probation departments through grants that must be used for progressive sanctions and diversion tactics. That's worked surprisingly well in Texas, with a few notable exceptions. But in neither state are counties prepared to take on the offenders currently housed in state lockups. According to the Little Hoover report:

County probation departments are in no position to immediately take on the remaining serious, violent and older youth offender population, as they are still adjusting to the abrupt implementation of the 2007 realignment legislation as well as the uncertainty of state funding given California’s estimated $15 billion deficit for 2008-09.12 Counties could, however, take on this responsibility, given time and resources to plan, develop and contract for programs; adequate time to establish regionally based facilities; and, given a dedicated source of money to pay for these programs and facilities.

The commission suggested that, with assistance, counties could be prepared to take over all incarceration duties for juveniles by 2011.

Texas faces a similar problem to California in terms of its skyrocketing cost per youth, though California's costs are so high ($250,000 per year per kid) they sound like a caricature. The last I heard, TYC's cost per youth had risen to around $60-65K per year. By reducing the number of youth but slightly increasing the amount of overhead (because of new oversight), Texas like California has seen its cost per kid soar since TYC entered conservatorship, a fact which Sen. Whitmire and others have cited as a reason to get rid of the agency entirely.

If Texas is serious about heading down this road, we should all be paying attention to California's experiment. They're already shifting juvie justice responsibilities downstream to the counties and where they find trouble, there's a good chance Texas will run into some, too.

See related coverage from AP and the Sacramento Bee, via Sentencing Law & Policy.

Today in History: O. Henry leaves prison, launches literary career

Here's an interesting historical footnote for the literary minded among you; today's the anniversary of the release from prison of one of Texas' great short story writers:

July 24 - O. Henry is released from prison on this day in 1901. William Sydney Porter, otherwise known as O. Henry, is released from prison ... after serving three years ... for embezzlement from a bank in Austin, Texas.

To escape imprisonment, Porter had fled the authorities and hidden in Honduras, but returned when his wife, still in the U.S., was diagnosed with a terminal illness. He went to jail and began writing stories to support his young daughter while he was in prison.

After his release, Porter moved to New York and worked for New York World, writing one short story a week from 1903 to 1906. In 1904, his first story collection, Cabbages and Kings, was published. His second, The Four Million (1906), contained one of his most beloved stories, The Gift of the Magi, about a poor couple who each sacrifice their most valuable possession to buy a gift for the other.

Additional collections appeared in 1906 and 1907, and two collections a year were published in 1908 until his death in 1910. He specialized in stories about everyday people, often ending with an unexpected twist. Despite the enormous popularity of the nearly 300 stories he published, he led a difficult life, struggling with financial problems and alcoholism until his death in 1910.

Via Focus News Agency.

With safety costs rising, why won't Austin use new citation authority for low-level offenses?

Since the Austin PD makes up so much of the city's budget and is driving cost increases and service cuts, you'd think the City Council and the Austin Police Department would welcome new authority from the Legislature to save money by giving citations instead of arresting for low-level misdemeanors.

Indeed, especially given high gasoline costs and a limited number of officers, one of the best ways to save money and maximize public safety resources is to reduce the number of unnecessary trips to the jail, which saves gas and keeps the maximum possible number of officers out on the streets for enforcement. The Texas Legislature passed HB 2391 last year giving police discretion to give citations for more low-level, nonviolent misdemeanors including marijuana possession, though officers can still make arrests if they think the situation warrants it.

But while the Travis County Sheriff's Office has embraced the idea, Austin PD Chief Art Acevedo backed off his initial enthusiasm for the idea because Austin juts into two other counties besides Travis - Williamson and Hays - which decided not to use the new authority. Essentially, then, Austin PD let its more conservative neighbors drag its policy down to the lowest common denominator, eschewing authority they clearly possess under the new law.

A new local group called Keep Austin Safe formed recently to encourage APD to change this policy. Austin attorney Ann del Llano authored a report on their behalf assessing the impact implementing HB 2391 could have on the city budget and public safety. (Conflict alert: Grits is listed on their site's supporter list, and I worked closely with Ms. Del Llano for several years at the Texas ACLU.)

For starters, 37% of Austin PD arrests are eligible to receive citations instead, according to the report. That's a big number - nearly 16,000 trips to the jail each year. While giving officers discretion wouldn't mean all those trips were abated, if half of them received citations that would make a significant difference - a reduction of around 22 trips to the jail per day with all the expense and extra time that implies.

The report identifies racial disparities in arrest rates as an argument for changing the policy:

For the optional Class A and B arrests, Blacks are over 3 times more likely to be arrested than non-Blacks. Though Blacks and non-Blacks use marijuana at the same rate, Black people in Austin are over 3.5 times more likely to be arrested for possession of a personal use quantity of marijuana.

But similarly disparate ratios exist everywhere in the justice system and I don't think this policy can be blamed in particular for them. Not only will disparities still exist if the policy's changed, they might even worsen if officers get to decide who to arrest (depending on how they use their discretion).

More compelling to me is the public safety critique - particularly arguments about seldom-discussed opportunity costs. Del Llano writes that:

Austin police are not solving our serious crimes. APD only clears 42% of Part 1 Violent Crimes and 12% of Part 1 Property Crimes that occur in Austin.

Austin is a more dangerous city because APD refuses to implement the Citation Option. APD officers are not available to solve violent crimes or more serious property crimes because they are busy arresting and booking people for these low-level nonviolent misdemeanor Citation Option offenses.

The report also includes an appendix with suggested language for an APD policy taking advantage of the new HB 2391 authority. Whether or not they enact such a measure, it's a good starting point for other jurisdictions looking to cut costs and focus more resources on serious crimes.

See prior, related Grits coverage of HB 2391:

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

Self-inflicted budget wounds: Police contract costs driving need for Austin library closures, new fee hikes

Criminal justice cost increases and rising fuel prices account for most of the increased expense in the proposed $620 million City of Austin budget, reports KEYE-TV:

Many of the budget increases include hiring 24 new police officers and buying 61 new cruisers. The city has also factored in the increased price of fuel, and is trying to tackle raising gas prices.

Austin's $25 million budget shortfall stems almost entirely from decisions four years ago to lavish vast raises on Austin police in their latest contract that made them the most highly paid officers in the nation. As I wrote in June:

Bottom line: Austin needed more officers over this period, but the council caved in to union demands to dramatically boost pay for those already on the force and fill gaps with overtime. That made it financially impossible to hire uniformed cops in the numbers the city should have and squeezed out other budget priorities.

The city will pay for the extra costs in this budget by closing library branches one day per week and raising fees for utilities and garbage pickup.

Myself and many others told the Austin City Council before they made these decisions in no uncertain terms that this would be the outcome - a bloated budget dominated by public safety costs that still doesn't put enough officers on the street. Now that those financial chickens have come home to roost, the city council is scurrying to identify someone, anyone else to blame when all they really need are mirrors - at least for the Mayor and others who were there at the time. Just pitiful.

Eckhardt: 'Jailing 1 in every 83 of our neighbors is a failure of our community'

Drug and alcohol offenders and the mentally ill dominate the Travis County Jail population, according to an essay by Travis County Commissioner Sara Eckhardt titled "Criminal Justice and the Least Among Us" in her quarterly newsletter to constituents (pdf). The commissioner provides a snapshot demonstrating how the Travis jail is being used mostly to combat social problems like addiction and mental illness. She writes:

Let’s take a closer look at who is in the Travis County jail, why, and at what cost.

• 36.5% are in jail for violent offenses (including misdemeanor assault)
• 27.2% are in jail for drug offenses
• 19.9% are in jail for alcohol related offenses (DWI, public intoxication)
• 15-20% have a mental health diagnosis
• 45.4% report not having completed the 12th grade
• 6.84% report being unemployed (with 62.4% of the employment unknown or unreported)
• The daily cost of incarceration per inmate is $22.75 per day
• 34.5% are re-arrested on new charges within two years

We can keep these people out of jail by investing in treatment and social programs that will provide the offender the highest probabilities for success upon release by avoiding the behaviors and circumstances that lead to incarceration. In Travis County we are employing some of the most progressive programs for diverting offenders away from incarceration and into treatment. Below is a description of some of the programs offered by the Sheriff’s Office and by Probation and Pre-trial Services. In addition to programs listed below, we are seeing jail diversion efforts in criminal courts and among social service and educational providers. These programs represent a start, but we must monitor their effectiveness and continually evaluate our strategy to reduce the need for incarceration.

Among our jail population 36.5% are in jail for violent offenses. To address the violent behaviors of these offenders while in jail the County has developed the Resolve to Abolish Violence Everywhere or RAVE program as well as the Sheriff’s Assault Prevention Program (SAPP). RAVE provides pre and post-release counseling and post-release support for violent offenders. SAPP provides classes examining the concept of anger and associated destructive behaviors. In addition, a number of batterers intervention programs are available to the accused that are out on bond awaiting trial.

Among our jail population 47.1% are in jail for drug or alcohol related offenses. To address substance addiction the County provides Alcoholics Anonymous and Narcotics Anonymous inside the jail. The SMART program provides Cognitive Rehabilitation classes. The Beat the Streets Relapse Prevention program seeks to educate and prepare the addicted for the challenges they are likely to face when they return to their communities. The Winner Circle Peer Support Network teaches participants skills for recovery, avoiding future criminal behavior and establishing healthier relationships. Further, Probation and Pre-trial Services has an extensive list of drug and alcohol counseling options available to the accused that are out on bond awaiting trial. In addition, after identifying supportive neighborhoods, the County will provide neighborhood-based day treatment for non-violent drug and alcohol offenders.

Among our jail population as many as 20% have been diagnosed with mental illness. As a society, we must move away from the implicit connection between mental illness and criminality. The correctional system is not the appropriate venue for treating all mentally ill patients who have nowhere else to go. But, for those who have become a threat to public safety, the Travis County Jail competently provides medication, treatment and housing until a more appropriate setting can be identified. Often a more appropriate setting never becomes available. To address the needs of the mentally ill while in jail, the Sheriff’s Office provides Jail Resource Groups and Mental Health Treatment Groups conducted by TCSO counselors. These counselors provide the inmates with help adjusting to jail, dealing with stress and anxiety, and identifying resources in the community to contact upon release. Peer Support Groups provide designated inmate peers to support and actively listen to inmates expressing suicidal thoughts.

Among our jail population 45.4% did not complete high school. To address this lack, GED orientation and testing is provided within the jail introducing those interested to the Austin Community College options for continuing education. GED preparation courses are offered. Special Education is provided by Del Valle School District for high school level subjects. Tutoring by community volunteers and by incarcerated peers is also available. And, Austin Community College offers English as a Second Language courses within the jail.

Among our jail population the level of unemployed or underemployment is unknown but assumed to be substantial. Although more than half of our jail population’s employment status is unknown or unreported, federal statistics from 2002 indicate that 59% of jail inmates have a personal income of $1,000 per month or less, that 30% are unemployed and that 14% were homeless in the past year. Travis County provides a telephone job matching services and on-site job fairs to inmates while in jail. TCSO provides Getting Connected, a class in which inmates receive information about jobs, housing, and financial assistance available from the Travis County Health and Human Services Department. Job Readiness classes are also available to provide information on looking for, finding and maintaining employment. A Money Management class is available to teach the basic concepts of budgeting, banking and borrowing.

In addition to the above programs, TCSO offers cognitive therapy, spiritual groups, meditation, and art programs. There are also programs specifically addressing pregnancy, sexually transmitted diseases, HIV/AIDs and other infectious diseases, and parenting. Programs also exist to target the distinct needs of and identify resources for veterans.

Jailing 1 in every 83 of our neighbors is a failure of our community. We must find better ways to improve the safety and security for all of our citizens. First we must get a clear idea of who is re-offending and how. Next, we have to weigh the costs and benefits of various programs in reducing repeat offenses. Travis County is establishing definitions for recidivism and beginning to track recidivism rates for the jail population generally and for the participants of the various programs offered. We already know with statistical certainty that drug and alcohol treatment decreases the likelihood of a return trip to jail; now, we must overcome neighborhood resistance to community based drug and alcohol treatment centers. We already know with statistical certainty that appropriate health care for the mentally ill reduces the likelihood of a trip to jail; now we must make the funding commitment to provide the mental health care that is so desperately needed in this community. Common sense and statistics from other jurisdictions tell us that educated and employed individuals are less likely to be incarcerated. Consequently, the school districts and community colleges as well as the major employers and chambers of commerce must do better at achieving a fully educated and employed citizenry. We must not look away. Paraphrasing the popular gospel song, “When one of us is chained none of us are free.”

What you can do:
• Support neighborhood-based drug and alcohol treatment
• Demand medical attention for the chemically dependent and the mentally ill
• Insist on educating all
• Hire a felon

If you ever needed evidence that jails are full because we've criminalized our social problems, these data should refute any doubt.

Hello Dolly

As Hurricane Dolly hits South Texas today, I intended to write a post about all the prisons - especially a slew of privately run immigration detention facilities around Raymondville - that may have to evacuate prisoners, but Bob Libal at Texas Prison Bidness beat me to the punch. Among other interesting details, he notes:

A large number of detainees with mental illnesses are held at the [Port Isabel Detention Center]. In light of recent reports of some immigrant detainees being drugged in transit and a general lack of mental health and medical care at many ICE detention facilities across the country, it's important to ask if these detainees [are] receiving mental health treatment during their evacuation and if they are being drugged during their transit.

TDCJ will not evacuate state prisoners in the area. In Brownsville, Cameron County released all nonviolent misdemeanants from the local jail - about 75 people - as the storm approached, according to the Brownsville Herald. They were evacuating juvenile offenders to San Marcos, the paper reported, but apparently other adult county jail inmates will ride out the storm in the jail.

Will search warrants hold up in the Great Eldorado Polygamist Roundup?

It looks like we're going to get to find out if those search warrants hold up in the Great Eldorado Polygamist Roundup. A grand jury indicted six people yesterday including jailed FLDS prophet Warren Jeffs who's actually in Arizona. That's a far cry from the original allegations of sweeping, systematic abuse by dozens of men at the YFZ Ranch, alleged for weeks by CPS and prosecutors in the press.

Locals everywhere struggle to manage mentally ill offenders

Following up on this morning's theme of mental health treatment and jails, I found two items on a brand spanking new blog called Stir Crazy in Texas informing us of new initiatives in mid-sized Texas cities to manage the problem. Welcome to the blogosphere, Stir Crazy!

First, in Lubbock officials received a $400,000 grant to create a public defender for the mentally ill, but with a twist - legal services will be provided by a nonprofit instead of a county office. This isn't an entirely new delivery model in Texas. In Del Rio, Texas Rio Grande Legal Aid staffs a multi-county PD office for all offenders, not just the mentally ill.

In addition, SCIT brings some hometown news from Smith County: "On Monday, July 28 at the meeting of the Smith County Commissioners, there will be a presentation regarding possible Mental Health Court being established in Smith County." Writes Stir Crazy

When approximately 20% of Smith County jail inmates have been treated for mental illness in the past, the potential impact of such an intervention program is substantial not only in terms of dollars saved but also in terms of quality of life for individuals, family members, and other citizens who could be affected by subsequent crimes.

Dr. David Self, chief forensic psychiatrist at Rusk State Hospital, and Ms. Valerie Holcomb, Texas Corrections Office on Medically and Mentally Ill specialist at Andrews Center, will make a presentation to the Commissioners sometime early in the meeting which begins at 9 a.m. (July 28) at the courthouse annex (NE corner from courthouse--where early voting occurs).

Meanwhile, checking in over at Prevention not Punishment, another Texas blog focused on mental health and corrections policy, I noticed this story from the June 2008 issue of Law Enforcement Technology about police Crisis Intervention Teams aimed at the mentally ill and state of the art practices pioneered at the Memphis (TN) Police Department:

The program builds a team of officers available to respond to calls that partner with families, mental health providers and individuals who are diagnosed with mental diseases. The Crisis Intervention Team, or CIT, preserves the individual's dignity, insures greater safety for both responding officers and the mentally ill person — called consumers — and reassures families.

It strikes me that some version of the Crisis Intervention Team concept should be developed by probation departments to provide more pro-active, need-specific supervision for mentally ill people they're supervising. It'd be nice to intervene in some of these crises before somebody gets arrested and locked up instead of only after they've committed a crime or hurt somebody.

Using jails for mental health treatment an expensive, counterproductive approach

The Houston Chronicle yesterday published an excellent feature by Bill Murphy ("Finding escape behind bars, July 22,") focused on mental health treatment at the Harris County Jail, reporting that:

During a recent survey, county officials found that more than 400 of the jail's 11,000 inmates were homeless and suffered from a major mental illness: schizophrenia, bipolar disorder or a chronic depressive-psychotic disorder. They were among 1,900 inmates on psychotropic medications.

When the mentally ill homeless leave jail — and leave behind its mental health care staff — many stop taking medication and end up on the street again. Treatment resumes only when they commit a crime and return to jail or their dementia overwhelms them and they are brought to an emergency psychiatric center.

Treating the mentally ill as they cycle through jail and emergency psychiatric wards is expensive. A county budget analyst estimates that it costs $80,000 a year, per person.

At the jail, spending on mental health care has risen to $24 million annually, and the combined cost of incarcerating and treating the mentally ill is $87 million annually.

"The jails have become the psychiatric hospitals of the United States," said Clarissa Stephens, an assistant director of the county's budget and management services office who has been studying the jail's mental health costs. ...

A June survey of more than 11,000 inmates revealed:

• About one-quarter suffer from mental illness or once suffered from it.
• Of those on medication, 978 suffered from schizophrenia, bipolar disorder or a severe depressive-psychotic disorder.
• Of the 978 with a major mental health disorder, 423 likely were homeless.
• Of the 423 homeless with a major mental health disorder, 97 percent had been arrested at least once before during their lifetimes; 43 percent had a prior arrest during the last 10 years.

On the day of the survey, the jail's mentally ill homeless inmates included:

• A 39-year-old woman booked 45 times since 2001.
• A man, 26, booked 30 times since 1999.
• A man, 52, booked 33 times since 1992.
• A man, 25, booked 20 times since 2001.

Some of the mentally ill — many of whom also are substance abusers — keep committing crimes and getting rearrested, in part, because few are properly supervised when they are released, said David Buck, a Baylor College of Medicine associate professor and president of Healthcare for the Homeless-Houston.

The story details some of the functional barriers to stopping the revolving door - particularly a lack of supervision after release to ensure offenders are taking their meds, and lack of housing and transportation to allow some level of normalcy and the ability to go to doctor visits and probation meetings.

This population defies the usual methods of the criminal justice system. When you're homeless, hungry and crazy, going to jail has little deterrent effect. Offenders who go off their meds when they leave lockup will likely miss probation meetings and appointments for treatment without some outside assistance. Finally, those who can't hold a job inevitably will steal or victimize others in order to get by.

There really does need to be a more structured community supervision system for the mentally ill that includes greater support and field supervision - particularly for "frequent fliers" who are in and out of the jail year after year.

County jails have become de facto mental heath treatment centers, not just in Houston or Texas but throughout the United States. Diversion programs for the mentally ill rank among the most cost effective reforms counties can undertake because failure to confront the problem with preventive steps necessitates treating them in jail - particularly for those who've been in and out of the jail over and over. Given that Harris County already spends $80,000 per year per person who goes through their jail and emergency room psych wards, a LOT of community based services could be provided for a similar amount of money.

State indigent defense task force: Dallas public defender caseloads too high

John Wiley Price and the Dallas County Commissioners Court don't appear fazed by the news, but the Texas Task Force on Indigent Defense today issued a report (pdf) analyzing the Dallas public defender office appellate division and caseloads at the state's largest PD office.

Countering Price's critique, the TFID found the appellate division cost the county $72 per hour of billable work compared to the $100 paid to private attorneys. Local officials countered that they don't pay private attorneys for holidays and said PDs bill more hours per case than private lawyers. Quien sabe?

According to the TFID, the Dallas appellate division handles 60 cases per year per attorney,while the Bexar County appellate division handles 35 per attorney. The number of cases assigned to the Dallas appellate division has been increasing every year, said the report.

TFID also countered recent criticisms of the office by the Dallas County Commissioners Court - in particular Commissioner John Wiley Price - that PD office attorneys are lazy and their caseloads are too low. Reported the News ("State report supports Dallas County public defender division," July 22):

The task force’s report also evaluated the public defenders’ caseloads and concluded they would be cost effective even if they handled fewer cases than what county commissioners are requiring.

Mr. Price has said some lawyers in the office are not pulling their weight. Brad Lollar, the former chief public defender, was forced to resign last month because commissioners were unhappy with his management of the office.

Commissioners want public defenders to handle at least 100 misdemeanor cases a month and 40 felony cases per month, the report said. That is three or more times higher than “nationally recommended standards” and substantially higher than caseloads handled by other Texas public defenders, the report said.

“Overloading public defenders can pose a serious threat to the indigent’s right to competent counsel,” the report said.

In Dallas County, public defenders could handle as little as 50 misdemeanor cases a month and 26 felony cases a month and still be cost effective, the report says. That’s because county figures show that the average cost per case for public defenders is lower than for private lawyers.

Mr. Price said he hasn’t read the task force’s report but that his analysis shows that 50 misdemeanor cases a month won’t cut it. Court-appointed lawyers handle more than that, he said.

The TFID's report gives the soundest basis I've seen for assessing the credence of claims that the PD office in Dallas provides poor service or costs more than private practitioners. The more pressing question is whether the commissioners court will listen to the Task Force on Indigent Defense ... or to anybody.

See related Grits posts:

• Texas Lawyer: Dallas public defender lacked protection from political winds
  
• Dallas public defender purge raises legal and policy questions
  
• Cost per case at Dallas Public Defender much lower than private practice
  
• Rothgery v. John Wiley Price: Move to slash public defender budget couldn't come at worse time
• Dallas public defender budget saves county money compared to neighbors

Base price of running prisons and jails rises with cost of water and fuel

Texas has long boasted among the lowest per-inmate costs in the nation for housing inmates in both state prisons and local jails, but those costs are starting to rise thanks in part to .

While salaries remain the largest cost driver, with healthcare costs trailing as a significant but distant second, increased costs for gasoline and water represent a significant and growing portion of operating budgets at prisons and jails. Just as average consumers struggle with rising utility costs, corrections facilities have been blindsided by the basic costs of keeping the water running, the lights on, and transporting prisoners and supplies.

While my family has been driving less in the face of $4 per gallon gas, that's not an option for county jails or the state prison system, which have base transportation needs that cannot be short-changed. That's particularly true of local law enforcement who perform neighborhood patrols and must transport defendants pretrial to and from the jail. The Austin Statesman reported today ("Travis targets fuel costs for 1200 vehicles," July 22) that:

"This discussion is happening in every county in Texas," said Elna Christopher, a spokeswoman for the Texas Association of Counties.

Travis County had budgeted about $1.5 million to fuel its 1,200 vehicles this year. But prices have risen so sharply that the county is having to find an additional $950,000 to keep its vehicles fueled through the fiscal year's end in September. The commissioners have already approved pulling about half of the needed money from the county's $3 million general reserve. The other half will probably come from cuts to individual departments.

To deal with next year's expected fuel costs, the commissioners will discuss a broad range of proposals.

"If you have as many employees and vehicles as we do," Biscoe said, "you can do some little things that can add up to big savings."

Christopher said ideas for finding those savings vary widely. Angelina County in East Texas, for example, may install video arraignment systems so that jail personnel don't have to drive prisoners to the courthouse.

The Travis County sheriff's department, which accounts for about 60 percent of county fuel use, is already putting changes in place that may be mimicked by other county departments. Sheriff Greg Hamilton hopes that steps such as cutting the amount of time vehicles spend idling and having more deputies patrol near their homes will add up to significant savings.

The sheriff's department also is putting more employees on a four-day workweek. Many patrol deputies have had 10-hour shifts for years, saving a day's worth of commuting in their patrol cars.

Moving more employees to a four-day week could allow some county buildings to be closed for an extra day, saving on utility costs, Christopher said. Ten-hour days could also allow some offices to stay open long enough for people to stop by before or after work, Biscoe said.

But he and Hamilton said they would not approve changes that made services more difficult to get.

Rising gasoline costs were also a big reason the Travis County Sheriff began giving officers discretion to use citations for low-level misdemeanors instead of driving violators to jail. The policy not only saves gas costs but keeps deputies on patrol and available to respond to more urgent matters.

TDCJ is considering changing its longstanding policy of transferring every prisoner to Huntsville before release because of high gas prices. They may soon shift either to releasing inmates directly from the unit where they're held or using "regional release centers" that would require less intra-prison driving time.

Meanwhile, from East Texas comes news of the Rusk County Commissioners Court seeking to raise water rates on TDCJ facilities in order to generate new revenue. According to the Jacksonville Daily Progress ("Rates to increase on TDCJ water use," July 21)

The city of Rusk offered discounted water and wastewater services as an incentive to get the state to build the Skyview and Hodge units in Rusk in the 1980s. The increase, according to city officials, brings the prisons’ rates closer to regular residential rates.

I understand the impetus for raising rates, though it's pretty outrageous to hope that TDCJ will pay residential rates for water while large commercial users pay less. It's reasonable, though, to ask them to pay the going commercial rates. A lot of rural areas offered economic development packages hoping to attract prison units in the past that included subsidies on water, electricity, etc., that no longer make economic sense in a period of sagging property tax revenue. It wouldn't surprise me if we see more locals hoping to increase those rates now that the prisons have long since ceased to be viewed as economic boons.

Every snowflake is different except for the ones that are not: DNA not immune to forensic science critiques

No two snowflakes are alike, we're told, though clearly the possibility that duplicate snowflakes may have existed at some point throughout history remains unmeasured and speculative.

Much of modern forensic science relies on the same unproven assumption. Handwriting analysts think no two people's penmanship are the same. Tires and shoes, we're told, wear and tear differently and may be identified by an "expert" in court. Even earprints have been claimed to be unique.

Ballistics analysts say each gun fired leave unique markings. Fingerprint analysts rely on the notion that no two people could possibly have the same one. And of course, DNA technology seeks to identify us using the ultimate extension of the snowflake theory - the biological roots of human individuality itself.

In recent years significant research has cast doubt on a number of these disciplines that operate under what we'll call the "snowflake assumption."

Handwriting analysis is less individuating than proponents might hope, with experts sometimes misreading their cues to erroneously match different people. Standardized mass production techniques cast significant doubt on the validity of matching to a certainty a bullet to the gun that shot it. Indeed, such comparison based forensics is not based in scientific analysis, but is performed by police technicians whose methods were developed and learned on the job sans external review.

Even fingerprints - the gold standard of evidence produced under the snowflake assumption - may be subject to mismatching. The most prominent recent example had to be:

Brandon Mayfield, a Portland lawyer held for two weeks as a suspect in the Madrid train bombings in 2004. FBI investigators matched prints at the scene to Mayfield, and an independent examiner verified the match. But Spanish National Police examiners insisted the prints did not match Mayfield and eventually identified another man who matched the prints.

The FBI acknowledged the error and Mayfield was released.

Now, according to a story in the Sunday Los Angeles Times, even DNA evidence is coming under fire for potentially failing to accurately differentiate between individuals. Reported the Times ("How reliable is DNA in identifying suspects," July 20):

State crime lab analyst Kathryn Troyer was running tests on Arizona's DNA database when she stumbled across two felons with remarkably similar genetic profiles.

The men matched at nine of the 13 locations on chromosomes, or loci, commonly used to distinguish people.

The FBI estimated the odds of unrelated people sharing those genetic markers to be as remote as 1 in 113 billion. But the mug shots of the two felons suggested that they were not related: One was black, the other white.

In the years after her 2001 discovery, Troyer found dozens of similar matches -- each seeming to defy impossible odds.

As word spread, these findings by a little-known lab worker raised questions about the accuracy of the FBI's DNA statistics and ignited a legal fight over whether the nation's genetic databases ought to be opened to wider scrutiny.

The FBI laboratory, which administers the national DNA database system, tried to stop distribution of Troyer's results and began an aggressive behind-the-scenes campaign to block similar searches elsewhere, even those ordered by courts, a Times investigation found.

I don't have any scientific knowledge to lend to the debate, but the political and legal implications of this discussion are profound. The issue with DNA appears to arise from using a limited number of match points and overstating the likelihoods of a "match" based on limited data. Even if DNA is rich enough for individualized identification, just picking 13 points to check may not be enough detail to justify the astronomical likelihood figures routinely stated in court. Limitations with the databases and the relatively small scope of user inquiries may combine to make it a lot more likely a false match occurs.

Federal courts have only just begun to struggle with the implications of the lack of independent scientific verification on fingerprints' individuality. Clearly DNA evidence, too, will not escape more detailed scrutiny in an era that history may remember as spawning a forensic science revolution.

At the very least, I wouldn't be surprised to see the number of matched points on a DNA strand increased and more restrictions in court on the overwhelming (and perhaps fanciful) mathematical estimates frequently offered to support them.

Convictions based on a single piece of evidence or one witness simply may always risk a wrongful conviction. Eyewitnesses sometimes get it wrong. Forensic analysts sometimes accuse the wrong person, and some forensic science is more accurate than others. We've long known most of it is subjective; now we're learning virtually none of it's definitive - even "gold standard" evidence like eyewitnesses, confessions, or DNA and fingerprint technology.

While it's legally possible for the state to make a case based on one witness or one piece of evidence, the long string of recent DNA-based exonerations shows that prudence may dictate requiring corroboration for even the most damning, one-in-a-billion piece evidence presented to a jury. That is, if the goal is to secure convictions "beyond a reasonable doubt."

Photos from Wilson Bentley, 'The Snowflake Man,' 1902

Podcast interviews Grits on DEA license plate reader proposal

At the Houston Chronicle's Texas Politics blog, reporter R.G. Ratcliffe posted a podcast discussing the news broken here on Grits that the DEA wants spend $15 million installing license plate readers along Texas highways. Here's the audio file:



In addition to posting excerpts from the hearing, Ratcliffe interviewed me for the podcast and as always I was a bit taken aback at hearing my own startlingly thick accent, demonstrating once again that your correspondent has a face made for radio and a voice made for blogging. R.G.'s got more goodies and links in the written post, so check it out as well.

Three guys who couldn't be on a Harris County jury: Moses, Jesus, and the Apostle Paul

Houston criminal defense attorney Mark Bennett says one question Harris County prosecutors are particularly fond of asking prospective jurors during voir dire is:

If we only present one witness, but based on that witness’s testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?

After which, "The prosecutors then gleefully challenge, for cause, all of the jurors who say 'no.'”

In the comments I pointed out that the Bible, Old Testament and New, says no one should be convicted for any crime except on the testimony of “two or three” witnesses. Moses (Deut. 19:15), Jesus (Matt. 18:15-16), and the Apostle Paul (2 Corinthians 13:1) were the ones who laid down the “two or three” witnesses rule, so none of them could serve on a Harris County jury if they were alive today and honestly answered that question! The same goes for modern religious folk who believe as those men did. Further, I argued:

Even for those unaware of the biblical precedent, ... jurors know that anybody can make an error and that the decision before them is a serious one, while the ADA is engaging in gamesmanship at the expense of a fair jury.

Bottom line: The jurors struck are concerned about the possibility of convicting an innocent person. The prosecutors who ask the question are not.

A prosecutor in the comments took umbrage at Bennett's criticism, insisting that "just because it works and you don’t like it doesn’t make it unfair." What is meant, though, by "it works"? Apparently that the question keeps people with values similar to Moses, Jesus, and St. Paul from ever participating on a Harris County jury. Heaven knows where that kind of thing could lead!

Meet the next great American diet book author ...

There was a young fellow named Green,
Who grew so abnormally lean,
And flat, and compressed,
That his back touched his chest,
And sideways he couldn't be seen.

You've got to admit this was a brilliant escape plot:

Texas police are searching for a man who slimmed down to escape from jail.

Authorities say Darryl Layne Norris, who is charged with murder, had been shedding pounds since checking into the Waller County Jail in April. They say he slipped out through an air conditioner vent less than a foot wide.

Amber Alerts and 'Security Theater'

Security theorist Bruce Schneier talks a lot about "security theater," or security measures aimed more at convincing the public they're safe than actually protecting them. He frequently cautions that it's important not to overlook the "for show" aspect of security because security is both a reality and a feeling, and the public seeks both.

However some security theater doesn't respond to public fears but inflames them and ignores more pressing safety concerns to direct security resources toward rare and unlikely events. A prime example is the so-called "Amber Alert" system aimed at finding abducted kids. According to a story in Sunday's Boston Globe ("Abducted!," July 20):

In the first independent study of whether Amber Alerts work, a team led by University of Nevada criminologist Timothy Griffin looked at hundreds of abduction cases between 2003 and 2006 and found that Amber Alerts - for all their urgency and drama - actually accomplish little. In most cases where they were issued, Griffin found, Amber Alerts played no role in the eventual return of abducted children. Their successes were generally in child custody fights that didn't pose a risk to the child. And in those rare instances where kidnappers did intend to rape or kill the child, Amber Alerts usually failed to save lives. In the case of Brooke Bennett, police quickly began to suspect an uncle with a history of sex crimes, and a week after she disappeared, investigators found her body in a shallow grave a mile from her uncle's house.

"Amber Alert is a victim of its own fantastically good intentions," says Griffin. "If someone gets ahold of a kid and has sufficiently nasty intentions, in the long run there's not much we can do."

Defenders of the program reject Griffin's argument. Some dismiss it as needless hair-splitting, while others question his data. And, considering the grim stakes, most see little point in criticizing a tool that saves any lives at all. "If an Amber Alert saves any child, don't you think it was worth it?" says Terrel Harris, a spokesman for the Massachusetts Executive Office of Public Safety and Security.

What Amber Alerts do create, its critics say, is a climate of fear around a tragic but extremely rare event, pumping up public anxiety. Griffin calls it "crime control theater," and his critique of Amber Alerts fits into a larger complaint on the part of some criminologists about crime-fighting measures - often passed in the wake of horrific, highly publicized crimes - that originate from strong emotions rather than research into what actually works. Whether it's child sex-offender registries or "three strikes" criminal-sentencing rules, these policies, critics warn, can prove ineffective, sometimes costly, and even counterproductive, since they heighten public fears and distract from threats that are at once more common and more tractable.

"The problem with these politically expedient solutions is that they look good but do very little to solve the problem," says Jack Levin, a professor of sociology and criminology at Northeastern.

The crux of the dispute can be found in this exchange:

"It doesn't cost anybody anything," argues Tyler Cox, operations manager for radio station WBAP, chairman of the Dallas/Fort Worth Amber Plan Task Force, and one of the people who helped create the original Amber Alert. "There's no expense to operating an Amber Alert system if you're doing it the right way."

Critics, however, measure the price of the program not in money but in broader social costs, in anxiety, panic, and misdirected public energy. Amber Alert and other measures "generate the appearance, but not the fact, of crime control," Griffin and Miller wrote. In so doing, such crime-fighting efforts reinforce misconceptions about what we should and shouldn't be afraid of.

"It creates a sense of paranoia, not only in parents, but in children themselves," says James Alan Fox, a Northeastern University professor of criminal justice.

If the Amber Alert were an isolated instance, its low-cost might justify a program that creates "the appearance, but not the fact, of crime control." But Amber Alerts are symptomatic of a broader trend in this area - focusing harsh laws and public attention on rare, isolated cases of stranger rape when most child molestation and child abductions involve family members or people the kid knows and trusts.

By focusing so much attention on protecting kids from a threat that's rare and failing to educate the public on more common threats to kids, IMO the pols looking to grandstand as "tuff" on child molesters end up harming security. That was certainly the case last year when Texas ramped up penalties for child molesters so high that victim rights advocates fear families won't report child abuse - the focus on strangers instead of more common threats made kids less safe in that instance.

Security theater is important and shouldn't be dismissed out of hand because people want and need to feel safe. But this particular brand of security theater makes people feel less safe than they really are by hyping threats the public will rarely face.

Which lawyers should you fear?

Barbara Ann Radnofsky said yesterday in the Houston Chronicle that the lawyers the public should truly fear work for the executive branch.

While I agree in part, I'd add that if I were indigent and accused of a crime I didn't commit, I'd be at least as concerned about the possibility of sub-par lawyering by a criminal defense attorney as misconduct by the state. You can get quality representation if you can pay, but if you can't afford your own lawyer, the indigent defense system in Texas can be a real crapshoot - even in death penalty cases.

Open Thread: Stuff to Read While I'm Out

While much of the political blogging word has migrated to Austin for the weekend, I'm leaving town. Blogging will be slow till Monday, so until Grits gets back in the saddle here's some related reading for you.

First off, in part to thank them for an enjoyable lunch outing yesterday, check out recent posts from blogger-attorneys Jamie Spencer from Austin and Robert Guest from Dallas. Also, Mark Bennett in Houston raises an important question about whether prospective jurors should be stricken if they're unwilling to convict based on uncorroborated witness testimony. See also Doc Berman and CrimProf blog for informative recent posts.

Use this as an open thread to let us know what other crimjust topics you're watching and I'll be back before you know it.

New evidence in the internet age: Your Facebook smiley icons can and will be used against you in a court of law

After reading a post over at Doc Berman's shop about the use of Facebook photos and profiles to criticize defendants' character, reacting to this AP story, I was interested to read about a similar situation arising from a DWI case in Waco ("Drunken driving sentences hard to call," Tribune Herald, July 19), where FaceBook pictures were used to portray the defendant as uncaring and remorseless about causing the death of her cousin:

A week before Lacey Kutscherousky went to trial for killing her cousin in a drunken driving accident, she wrote on one of her social networking Web sites that her mood was “breezy.” She punctuated that emotion with a yellow smiley face.

This week, Kutscherousky remains in the McLennan County Jail awaiting transfer to prison to begin serving her two-year sentence. Her mood has changed.

“She is very depressed and just anxious to get her sentence completed,” said her attorney, Rod Goble. “She still has a great deal of remorse for the accident.”

The 18-year-old former West High School cheerleader, who had planned to go to Texas A&M University in the fall, pleaded guilty to intoxication manslaughter last week in the March 2007 alcohol-related crash that killed her 19-year-old cousin and best friend, Ashton Marek.

Kutscherousky and her family, who pleaded with jurors to spare her from prison, cried throughout her three-day trial in Waco’s 54th State District Court. However, Facebook postings by Kutscherousky and her friends that were distributed to jurors show an apparently carefree Kutscherousky mugging for the camera and partying with friends three months after her cousin died.

The use of Facebook in this case bothers me a bit more than does the instance Doug cited, where pictures of the defendant at a Halloween party with alcohol in the scene were taken two weeks after a drunk driving crash seriously injured a woman. In the Kutscherousky case, pictures of a "carefree" defendant were taken three months after the event and didn't include alcohol. It seems unreasonable to expect pure joylessness from an 18-year old cheerleader for months on end, even following her cousin and best friend's death. Following a tragedy are we really not allowed a smile, a laugh, a "carefree" moment? For how long?

Prosecutor Melanie Walker told the Tribune Herald, jurors “took it very seriously, and the truth is, killing somebody is a big deal. ... I guess by their verdict they said that it doesn’t matter what the victim’s family wants, and no matter who you are, prison is the appropriate sentence. It also was pretty clear that they weren’t convinced that she had completely changed.”

Well by all means, if you don't think she has "completely changed," two years in prison will no doubt solve any residual problems. Right?

If someone says they're on the wagon and investigators find a Facebook picture with a drink in their hand, that's one thing. But "mugging for the camera" is hardly a crime, and what 18 year old doesn't spend most of their time with their friends? I don't think that's particularly probative evidence.

Also, while these cases involved public social networking sites, we've also seen instances in Texas where prosecutors encourage officers to lie to juveniles in order to get permission to go onto private social networking sites.

Doug's right these are "pre-party-night cautionary tale[s]" - one frequently sees social networking site with party pictures and smiling faces, but one imagines that seldom do those posting them think about how they might be portrayed out of context.

I also wonder if more discussion isn't needed about what type of social networking flotsam and jetsam actually constitutes evidence? Does it tell us anything about someone's character that, months after a tragedy, at a particular moment sitting alone in front of their computer a teen girl categorizes her mood as "breezy"? Is the use of a smiley face on the web really evidence she didn't care about her cousin's death, and if not why present it to the jury? Will older jurors interpret such icons the way her peers would, or have any context for what it means (e.g., that "breezy" is a much-used Facebook mood designation)?

The use of evidence from Facebook and other social networking sites that relates directly to a crime will always be fair game. But I question the wisdom of portraying young people's relative level of remorse merely from a smiling photograph. That seems like a cheap shot.

Collin County judge approves search warrant for defense lawyer's files

Maybe the Texas Court of Criminal Appeals will finally find a use for that 1856 attorney client privilege rule after all!

The CCA earlier this year postponed proposed changes to attorney-client privilege rules for criminal defense lawyers after a largely blog-generated outcry. The court had proposed getting rid of provisions that Judge Cathy Cochran in a guest post on Grits called a "vestigial tail" with "no wag," arguing that because no evidence had been excluded based on the rule in many moons, it could be safely deleted without troubling attorneys' historic protections.

Defenders of the rule argued that even though the rule had not been interpreted by the courts in many years, it still contained "sympathetic magic" which prevented judges from crossing so clearly drawn a threshold. In other words, judges knew they could never get away with violating privilege, so there were no cases telling them they couldn't do so.

That recent episode made me doubly interested to learn via Bill Baumbach at the Collin County Oberver that "Judge Mark Rusch of the 401st District Court in Collin County apparently issued a search warrant at the request of the DA's office for defense attorney files in a murder case before his court." KRLD Radio reported the search warrant "may be a first in Texas."

This'll be one to watch. It's also another moment that makes me wonder what's the matter with the Collin County justice system?

UPDATE: According to an email from the Texas Criminal Defense Lawyers Association, "A motion to recuse the judge who signed the search warrant is currently scheduled for August 5, 2008, at 10:30 am in District Courthouse of Collin County, Texas. The Strike Force Committees of TCDLA and NACDL are involved." From NBC Channel 5 in Dallas, here's a little more information on the case:

Police said Mark Bell fired the shots that killed Craig Nail in his home a day after Christmas 2007.

While in jail, Bell wrote letters to his wife asked her to hang on to certain items in their home.

Bell's wife ended up turning all the items and the letters over to her husband's attorney.

A few days before a scheduled hearing to determine whether detectives were entitled to any of the items, Frisco police served a search warrant and seized the documents from the attorney's office.

The attorney has now hired another attorney who calls the search "illegal" and a violation of attorney client privilege.

See prior Grits coverage of the attorney-client privilege rule:

• CCA backs off changes to attorney client privilege rule
• Read memo spawning proposed CCA changes to privilege rule
• View from the Piney Woods on proposed deletion of privilege rule
• Hampton defends privilege rule: 'The vestigial tail you save may be your own"
• CCA Judge Cathy Cochran: Privilege rule proposed for deletion a "vestigial tail" with "no wag"
• CCA could weaken attorney client privilege rule in place since 1856

BLOGVERSATION: Read more lawyerly discussion on the topic from Simple Justice.

The Rise and Fall of Rockwall DA Ray Sumrow

The Dallas News yesterday published a feature looking back at the career of defrocked Rockwall DA Ray Sumrow, who was recently convicted of stealing public money:

Ray Sumrow was a self-made success, a man who, despite holding elected office, didn't mind getting his hands dirty and enjoyed shooting the breeze with friends at the old Dairy Queen.

He worked his way through law school and won election as Rockwall County district attorney six times.

He earned a reputation for prosecuting public officials, handling at least half a dozen cases. The State Bar named him Prosecutor of the Year in 2001 – the same year he beat kidney cancer.

So how did the county's chief law enforcer – a man with a reputation for integrity and friends among Rockwall's elite – fall so far?

Mr. Sumrow, who sent hundreds to prison during his 22 years in office, now resides there himself, serving 15 years for stealing public money.

He resigned last month, and the State Bar has suspended his law license and probably will disbar him. At 58, he faces financial ruin and could lose his home, which he lovingly renovated with his own hands, to foreclosure.

A judge plans to decide Friday whether to declare him indigent and order the state to pay expenses related to his appeals.

Having made his reputation prosecuting public corruption cases, it's ironic that it was one of those cases that wound up bringing him down:

The catalyst of Mr. Sumrow's demise was his prosecution of longtime county Treasurer Shereé Jones, who resigned and pleaded guilty to misusing $2,100 from the county. Mr. Sumrow called her crime "a blight on all elected officials."

Then she told investigators that he had done the same thing on a much larger scale.

See the rest from Dallas News. Via FrontBurner.

Board treasurer stole from Houston police union coffers

Trust no one, I suppose, is the unhappy lesson arising from this unseemly debacle out of the powerful Houston Police Officers Union:

A retired Houston police officer and his former son-in-law were indicted Thursday on charges that they took money from the professional organization that once represented them both — the Houston Police Officers' Union.

Ronald Martin, 51, the union's former board secretary, and Houston police officer Jeff Larson, 39, are accused of stealing cash, cashing checks, using credit cards and pocketing profits from vehicle sales — all from the union's coffers, Harris County prosecutors said.

The indictments were a bitter blow to the organization, the sole bargaining agent with the city for all Houston police officers. ...

Martin and Larson were indicted on charges of misapplication of fiduciary property. Larson was also indicted on charges of theft by a public servant.

The two are accused of taking about $100,000 to $200,000 from union coffers from December 2004 to January 2008, according to Harris County District Attorney Ken Magidson.

A 31-year HPD veteran, Martin retired after he and Larson were relieved of duty in mid-January. Larson, who remains off-duty with pay pending the outcome of the investigation, has been with HPD for 16 years and was the union's treasurer.

Annual audits under the last union president didn't catch any discrepancies, reported the Houston Chronicle, but the first audit under the new president found HPOU's Treasurer stealing regularly:

The irregularities first came to light in November when HPOU conducted an internal review regarding the sale of union-owned vehicles by Martin and Larson. At the same time, Blankinship's election as the HPOU's president triggered a financial audit.

The audit identified financial breaches involving Martin and Larson, Blankinship said.

He said the union's financial state was in trouble when he took over at HPOU — which has about 4,850 dues-paying members.

Larson, as treasurer, was essentially free to disperse union funds as he saw fit, Blankinship said.

"They (former union leaders) could have done a better job at checks and balances," Blankinship said.

Former HPOU President Hans Marticiuc said the union's board members received a financial report each month.

"There was an outside audit every year. It came back that we were in fine shape," Marticiuc said. "I really think that it was a matter of trusting people."

Since taking over, Blankinship said the union hired certified public accountants to audit the books.

One questions the quality of the auditor who annually declared the books in "fine shape" over the last few years. Enron had auditors too, I suppose. In that sense, it's really still a matter of trust whether Houston police officers can believe their union leadership isn't stealing their dues. Changing auditors only helps as long as top leadership shoot straight with their accountants.

I was also unaware of another recent theft incident mentioned in the article:

The alleged theft is at least the second time that money from law enforcement ranks has come up missing this year.

In May, FBI agents said they were investigating the disappearance of more than $100,000 from the Houston Police Federal Credit Union.

That incident is still under investigation, said Donna Hawkins, a spokeswoman for the Harris County District Attorney's Office.

Meanwhile, Kuff lets us know that the Harris County Sheriff recently created a new inspector general position "to investigate abuses at the county jail." That makes me wonder what the feds turned up during their recent week-long inspection, and whether more Houston-area law enforcement scandals may be revealed soon.

Mexican incarceration rate one fifth that of Texas, but growing

Richard Grabman at The MexFiles has some interesting crime stats from the Mexican Health Secretary that he compared to Texas' data, but as I pointed out in the comments to his post, the Texas stats were a bit off. Let's update them, however, because Grabman is pursuing a very interesting and important train of thought based on data published in the July 15 issue of Milenio. He wrote:

No wonder Texas wants to violate international court orders, and execute foreigners. With a total population of 23,507,783 (2006 estimate), the number of state prisoners is 71,812. There are also about 9,000 in the various Federal detention centers in the state (and no figures on the numbers in contract concentration camps for aliens). Mexico, with a population of 120,000,000 has a total of 217,457 prisoners in the 442 institutions, which include six federal facilities.

Grabman's miscalculations suffered in part from using faulty data. The number he cites for Texas state prisoners (71,812), is actually the figure for how many people are incarcerated in Texas county jails. To that figure should be added the number in state prisons - around 155,000, give or take - bringing the total incarcerated in Texas to more than 226,000 people, or more people in absolute terms than the entire nation of Mexico!

I also think a true apples to apples comparison would require modifying the denominator. Only adults can go to jail or prison, so those under 18 shouldn't be included in the comparison stat. So subtracting the 27.6% of Texans who are under 18, the real Texas figures would be as follows: Texas incarcerates 1.33% of its total adult population.

By contrast, Mexico incarcerates 217,457 people in a nation of 120 million. But again, we must adjust the denominator. I couldn't find apples to apples stats, and I don't know at what age Mexicans are eligible to go to prison, but according to this source 32% of Mexicans are under 15 years old. Comparing the prison population only to those 15 years old and older (approximately 81.6 million), Mexico incarcerates .27% of its adults

In other words, Mexico's adult incarceration rate is approximately 1/5 that of the state of Texas.

Even though Mexico incarcerates people at a much lower rate than the United States, the country currently is experiencing a period of rapid prison growth, with the number of people incarcerated having increased 40.5% since 2000 (from 154,765 in 2000 to 217,457 in 2008).

Of Mexico's low incarceration rate, Richard says "I haven’t come up with any definitive theory to explain it." He offers this observation, though, that certainly is a contributing factor:

In the U.S., every anti-social act is made a crime, and people turn to the police to handle criminal matters. Mexicans, by and large, don’t trust the police (and never have, at least not for the last 400 or so years), seeing them as protectors of the status quo and of wealth, and not of the people. And anti-social acts are dealt with informally.

What's more, mass incarceration for nonviolent offenses is a rich country's hobby; poor nations like Mexico simply could never afford to manage social problems like alcoholism and drug use solely through the justice system because of the massive expense. In fact, the United States is rapidly reaching the point where we can't afford it, either.

RELATED: Crime and Punishment in Mexico: The big picture beyond drug cartel violence

Conyers in Dallas for panel on wrongful convictions

US House Judiciary Committee Chairman John Conyers will be in Big D on Saturday (okay, really in Lancaster south of Dallas) to participate in a panel discussion about wrongful convictions and DNA exonerations. Here's the text of a press release I received today promoting the event, which is hosted by Congresswoman Eddie Bernice Johnson:

CONGRESSWOMAN EDDIE BERNICE JOHNSON TO HOLD PANEL DISCUSSIONS ON WRONGFUL CONVICTIONS AND DNA EXONERATIONS SATURDAY

Press Conference Will Immediately Precede Event

Washington, D.C. – (July 17, 2008) Congresswoman Eddie Bernice Johnson will hold panel discussions on wrongful convictions and DNA exonerations this Saturday, July 19. The event will consist of two discussion panels, one featuring three Texas exonerees and one featuring Michigan Congressman John Conyers, state Senator Rodney Ellis, District Attorney Craig Watkins and Jeff Blackburn of the Innocence Project of Texas. The discussions will be moderated by Judge John Creuzot.

Texas has more wrongful convictions proven by DNA evidence than any other state in the country, and of the 32 in the state, 19 were overturned in Dallas County.

A press conference will immediately precede the first discussion.

What: Panel Discussion: Wrongful Convictions and DNA Exonerations

Date: Saturday, July 19

Time: 4:00 – 4:15 PM – Press Conference

4:15 – 5:00 PM – Panel One – Discussion featuring Michigan Congressman John Conyers, state Senator Rodney Ellis, District Attorney Craig Watkins and Jeff Blackburn of the Innocence Project of Texas

5:00 – 6:00 PM – Panel Two – Discussion featuring Dallas exonerees James Woodard, Charles Chatman, and Billy Smith.

Location: Cedar Valley College Performance Hall, 3030 North Dallas Ave., Lancaster, TX 75134

NOTE: The press conference will be held in the adjacent gallery space. To RSVP, please e-mail phoebe.silag@mail.house.gov or call (202) 225-8885.

Forensic Roundup

I wanted to point out several stories this morning related to topics in forensic science that deserve Grits readers' attention:

Response published to crime lab criticisms
The organization Crime Lab Report published this week a rebuttal to critics ("The Wrongful Conviction of Forensic Science," pdf) of crime lab errors, re-analyzing data on DNA exonerations first crunched by the Innocence Project in NYC. (Conflict alert: I'm a paid policy consultant for the Innocence Project of Texas.) Some interesting data here, but also some paranoid speculation (e.g., they think the Innocence Project directs when and what stories are published in the New York Times!) and more than a little defensive posturing. For instance, their top finding was that "Of the 32 instances of forensic science malpractice shown above, only 1 was found to have occurred in an accredited laboratory." In Texas, though (I can't speak for other states), accreditation wasn't required until recently, after a slew of errors were discovered, so that observation from my perspective falls into the category of "true but trivial." In addition, they conclude that "forensic malpractice" was the "sole systemic error in only two overturned convictions," but fail to acknowledge that forensic errors and malpractice have more frequently combined with other causes to generate system failure. They also insist that "bad lawyering" is responsible for more wrongful convictions than previously estimated.

Ironically, the sense I get from reading this critique of the Innocence Project's analysis is that everybody admits the system made mistakes, but the lawyers are more likely to blame the scientists and the scientists are more likely to blame the lawyers. Go figure! My take on the (mostly Texas-based) innocence cases I've looked at is that - with the notable exceptions of faulty eyewitness identifications or false confessions - a single error is rarely the sole cause of a wrongful conviction. More frequently outright systems failures occur when errors or neglect compound one another, often coupled with a "team spirit" mentality.

Houston FBI opens new digital forensics lab
Calling the process of removing digital evidence from electronic equipment a "hard science," the FBI this week announced they're opening a new digital forensics lab in Houston. They've begun soliciting requests for assistance from area law enforcement on their website. I'm just a little skeptical, however, of the futuristic concept of "self-serv" forensics. Reports the Houston Chronicle:

The laboratory's operations are overseen by a board of directors that includes investigators and commanders from the Harris County Sheriff's Office, the Houston, Pasadena and Richmond police departments and other area law enforcement agencies.

Participating agencies provide staff members, who process digital evidence from their own departments as well as others.

Forensic examiners also will travel to known or potential crime scenes to examine computers and other equipment.

The lab has four examiners who specialize in examining cell phones or PDAs, said sheriff's detective John Pohutsky, who helped conduct tours of the laboratory.

Such devices provide the "fastest-growing form of digital evidence," he said.

Eventually, the laboratory will offer self-service kiosks to speed up examinations of cell phone data for area law enforcement, Pohutsky said.

"An investigator from an agency would be able to bring a cell phone in that he's acquired as evidence," he said. "With a little bit of help getting started, he can basically process his own phone."

Champagne tastes and a 'near beer track record'
BlogHouston recently criticized HPD Chief Harold Hurtt for proposing ambitious upgrades at the HPD crime lab when they can't get the basics right:

It was just this past January that HPD's crime lab was in the news as the head of DNA testing resigned after a cheating scandal. So now Chief Hurtt wants to go from disgraced and dysfunctional to state-of-the-art and tops-in-the-U.S. I'm guessing Houstonians would settle for just processing DNA samples successfully. Period. You know the old saying, "champagne taste on a beer budget"? Chief Hurtt has champagne taste, with a near beer track record.

National FBI crime lab profiled
CNN offered up a feature on the FBI's much-vaunted national crime lab at Quantico, Virginia, an effort launched in 1932 by J. Edgar Hoover with the hiring of a single handwriting expert. Today more than 500 agents, scientists and staff work at the facility.

TX property room techs have their own association
An ad on page 2 of latest issue of The Property Times, the publication of the Texas Association of Property and Evidence Inventory Technicians, depicts a brutal NASCAR car crash with the bold headline, "Evidence Mismanagement is One of the Leading Career Killers in Law Enforcement."

The group's site links prominently to the Denver Post series on evidence mismanagement, so I'm glad to see recent critiques of property room practices are on their radar screen, though evidence rooms in Texas still have their own problems. I was unaware the organization existed but they've been around for ten years and have a substantial membership for such a narrow field.

Should inspector-general model be expanded to other Texas state agencies?

Will more Texas state agencies in the future have an Office of Inspector General modeled on the ones at TYC and in the adult prison system? The House Committee on Government Reform today focused on the role of inspectors general and issues of independence from the agency they're monitoring. I didn't get to watch the hearing, but may go back later to listen to what was said. Reported the Statesman:

State Rep. Dan Gattis, R-Georgetown, who is pushing for more independent inspectors general, said it helps to have them embedded in agencies so they're familiar with how things work but said inspectors general should report to someone outside the agency.

"I have serious concerns about whether or not an inspector general can actually do their job when they have to answer to or pass things through the agency which they're supposed to be having oversight of," Gattis said.

Gattis and fellow Central Texas House members Dawnna Dukes, D-Austin, and Patrick Rose, D-Dripping Springs, were among several lawmakers who tried last year to give more independence to offices of inspector general.

"Clearly, there was opposition from the agencies," Dukes said. They will always "have concerns that you're going to have a new sheriff that's going to come to town."

Opponents of creating a state office of inspector general say the state auditor's office performs many of the same functions.

Inspectors general are typically in the executive branch of state government; a state auditor is in the legislative branch.

"There is probably a turf battle between what does an (office of inspector general) do to what does our auditor do," Gattis said. "It's really a different function."

Gattis put it this way: getting investigated by the state auditor's office is like a visit from your accountant. An inspector general investigation "is more like the Texas Rangers walking in."

Melinda Miguel, Florida's chief inspector general, said she and the state's auditor general avoid duplicating each other's work.

"I find it works very well," she said.

Video of today's hearing is archived here.

UPDATE: The Statesman's editorial board weighs in on the subject.

The case for steroid testing high school athletes if 2 in 10,000 are users

Since I've argued against continued steroid testing of high school athletes, maintaining that steroid abuse by police officers empirically poses a more significant threat, I wanted to point readers to a column by Donald Hooton, father of a steroid using teen who committed suicide for whom Texas' steroid testing law is named. Writes Hooton in the July 14 Dallas News:

Out of the preliminary findings, two positive tests resulted from more than 10,000 tests conducted by the National Center for Drug Free Sports and the UCLA Olympic Analytical Laboratory. But the law's primary purpose is to prevent our children from turning to steroids by providing a deterrent – the risk of getting caught gives our kids a solid reason to say no.

Consider speed traps on highways. Many adults and teens drive the speed limit not because they know that doing such is safer and saves fuel, but because they know someone is watching – the fear of getting caught is greater than the desire to disobey the law. What happens when you take away the speed traps? People start breaking the law.

Whether the program yielded two positives, 400 positives or 1,000 positives, no one should be drawing conclusions about the extent of steroid use based on these preliminary lab results. The program was never designed to measure steroid use among high school athletes.

According to the statistics from the 2007 National Youth Risk Behavior Survey, recognized as the premier organization in this field, 3.9 percent of high school students are abusing anabolic steroids nationally. Given that 10,407 students were tested in Texas in the past year, the results should have yielded at least 400 positive tests. Based on the preliminary results that we've read about, what we do know is:

• The random testing preliminary results of Texas students identified that 99.98 percent of the sampled student-athletes tested clean for performance-enhancing drugs.

• At least two kids are going to get help before something tragic happens. (I can only wish that my son had been "caught" and been able to receive help.)

• Ten thousand kids know firsthand that we are taking this issue seriously here in Texas.

• Millions of Texas families now know about the dangers of anabolic steroids.

Those results are, to me, an excellent definition of success.

The speed trap analogy is a particularly poor one. If officers only gave tickets at 2 out of every 10,000 traffic stops, there'd be scarce incentive to continue them. Speed traps make money because traffic violations are a lot more common than that.

Also, even if the "program was never designed to measure steroid use among high school athletes," the results are more directly probative than a survey that merely asks verbally about steroid use. The size of the sample is quite large and Texas specific. I don't think we can rely on that 3.9% figure based on these results - certainly not if next year's round of steroid testing duplicates the lower number.

I'll agree with Hooton the program served a short-term public relations benefit, but that has already been realized. Now the public relations message is actually being undermined by extremely de minimus results.

To the extent steroid abuse is a widespread problem, these data show the main nexus of its use does not lie with high school athletes. That means education and prevention resources are likely adequate for that population and enforcement spending (the 10,000 tests cost $3 million) should be reserved for groups where testing gets more bang for its buck.

FBI: Border corruption increasing on US side

Coming on the heels of allegations that Los Zetas corrupted a deputy constable in Collin County, I was interested to see that Reuters has a feature on drug-enforcement related police corruption at the southern end of the state ("Drug smugglers bribing US agents on Mexican border," July 15):

U.S. Border Patrol agent Reynaldo Zuniga was arrested last month lugging a bag of cocaine up from the Rio Grande, one of a growing number of law enforcement officers accused of taking bribes from drug gangs.

Former colleagues say Zuniga used to wait until agents in the south Texas town of Harlingen were distracted with paperwork, then slip down to the river and help smuggle in drugs from Mexico.

The increasing use of bribes by Mexican drug cartels to corrupt U.S. agents comes as Washington is sending $400 million to help Mexico's army-led war on the trafficking gangs, whose brutal murders have surged to unprecedented levels.

"Zuniga was a good agent and a hard worker. I can't understand why he would do this. We're supposed to be protecting our borders," said Border Patrol agent Daniel Doty, a former colleague.

Data on agents convicted of graft are not made public, but the U.S. government is probing hundreds of border corruption cases where a decade ago it saw a few dozen a year. The FBI-led Border Corruption Task Force says it is busier than ever.

"We've seen a sharp increase in investigations along the border over the past three years," said Andy Black, who oversees the San Diego task force, near the busy border crossing of San Ysidro.

"We are talking about a minority of agents but they are a very significant threat, a weak link in efforts to secure the border."

Some put the rise in bribery down to a recent tightening of border controls and a jump in hiring new agents. Smugglers can offer hundreds of thousands of dollars to get past the heavily policed border with drugs and immigrants -- much more than a border agent or sheriff makes in a year.

Gangs also often use attractive women as bait, setting a "honey trap" to entice officials.

"I was offered sex to let a woman across the Rio Grande, but I have a family, I turned her down," one agent told Reuters as his sniffer dog searched a freight train for immigrants and drugs in the Texan borderlands, steamy with tropical rain.

Billions thrown at border enforcement can be stymied in any given moment by the actions of one corrupt cop or Border Patrol officer. But then, there's hardly been just one.

Galveston ISD wonders why West Texas school district will provide correctional educational services for island boot camp

Galveston ISD never cared much about correctional educational services until the tiny Iraan-Sheffield ISD from West Texas bid to provide them at the Seaborne ChalleNGe Corps, "a military-style program for troubled teens" operated by the Texas National Guard on the island. But locals wonder "why the Galveston public school district was not offered opportunity to teach students in its own jurisdiction." According to the Galveston Daily News ("Seaborne, West Texas district deal strike nerve," July 15):

Michael Blalock, deputy executive director of the adjutant general’s office, which oversees all the state military forces including the corps, said the West Texas school district was chosen because it has experience teaching troubled teens in a Texas Youth Commission facility in Sheffield. He said the state did not give other school districts the opportunity to bid on the job. ...

Blalock was exploring the idea of opening a second Seaborne ChalleNGe Corps in the empty Sheffield building and asked the West Texas school district officials to provide the same kind of instruction they gave to Texas Youth Commission teens.

Iraan-Sheffield officials said they were interested in providing instruction in Sheffield and in Galveston. District officials and the adjutant general’s staff inked an agreement in June allowing Iraan-Sheffield public school teachers to teach students English, social studies, science and math. It’s the first time corps cadets will have a chance to earn a diploma.

Mytelka said some of his constituents have questioned why the West Texas district was offered a chance to earn state funding by teaching island cadets when the island public school district is facing a budget crunch.

Predicting a multimillion-dollar budget shortfall, Galveston public school district officials are considering laying off more than 20 employees.

Arnold Proctor, assistant superintendent of business and operations, has said the district might not have benefitted from an agreement to teach the cadets. He said the cost to educate at-risk teens could outweigh the benefit of increased state funding.

This is bascially fallout from the recent closure of the Sheffield unit in West Texas, showing how economically reliant some rural communities have come on TYC facilities (and for that matter, adult prisons).

I still want to learn more about the scenario. For starters, why does the National Guard operate youth camps for delinquents, anyway? According to their website, this is a nationwide program for the Guard begun in the early '90s, but not all states participate. And should the Guard really be expanding boot camps right now? The National Institute of Justice categorizes military style juvie corrections as a strategy that "doesn't work," and nationally the concept has been under fire after a series of abuse allegations and untimely deaths at wilderness and boot camps.

The treatment portion of the ChalleNge program was designed in the '90s by that stalwart leader in juvenile corrections, the Center for Strategic and International Studies.

I don't have any particular stake in who provides education services for the ChalleNge program, but it's a bit unseemly to see school districts fighting over table scraps like this. Juvie corrections are usually seen as a necessary if unwelcome obligation by local school districts, but the economics of "Robin Hood" now send districts scurrying for any scheme to add students to the rolls. If the Legislature ever fixed the school finance fiasco, I have to wonder if Iraan-Sheffield ISD wouldn't be looking to drop this contract like a hot potato?

Chasing illegal cell phone use in TDCJ

The Back Gate, a Texas prison guards' blog, has this story from June about staff catching an inmate on a cell phone and the resulting chaos when the prisoner tried to flee:

[Y]et another cell phone was discovered on the region 3 Clemens unit in Brazoria. But this time the story behind the discovery is actually the entertaining part as a Huntsville generated report disclosed. As an eagle eyed employee made rounds on a Clemens unit outside trusty status dorm, they ran into something thats beginning to become all to familiar. An offender was lying on his cubicle bunk, gossiping away on his very own cell phone.

The attentive staff member had the offender get up and the chase was on from there. The offender bolted out of his cubicle, and ran to the rear of the dorm trying to evade the persuing officer. The officer called for more staff and tried to box the offender into the rear of the dorm until help arrived. As other staff members arrived, the offender saw his hopes of a clean getaway dashed as they all converged. He then made the decison to dive through a screened mesh dorm window to get outside where he took off on foot with his cell phone still in hand.

Officers gave chase, and eventually caught up to the offender after he had made his way to an area at the perimeter of the trusty camp compound. He then attempted to bury the device in the ground . At which time he was apprehended and promptly moved into the main compound. He is anticipated to be charged with possession of a cell phone in a secure correctional facilty, a felony that has fetched as many as 30 additional years in prison for some.

The Clemens unit remains at the top of the cell phone exchange within TDCJ. A recent state senate hearing admonished a clearly shaken TDCJ executive director over the unit's stats, that at the time were 46 so far this year. That was June 4th. Today, officials claim that numerous other cell phones and their accessories have been located on the unit since the prior numbers were released just a month ago. And thanks to a professional correctional officer on the Clemens unit, another one is out of an offenders hands. But additional steps need to be taken to prevent the entry into the facility in the first place. Clemens currently does not routinely search staff coming in, and there is no metal detectors present for use on employees. If 46+ cell phones have made it in, what are the chances of a pistol showing up in the near future? Just a thought.......

That's quite a tale. To be frank, since it's almost certainly guards bringing in the cell phones I imagine rational self interest will prevent the same couriers from bringing in a pistol. Still, someone who'd smuggle in a cell phone might well smuggle in other types of contraband, and when it's a staff person there's a doubled risk from future blackmail and long-term corruption.

There are technological solutions to prisoners having cell phones, but the per-unit cost and the staff commitment for monitoring are more or less prohibitive. I'm similarly skeptical of the latest fad on the topic - cell phone sniffing dogs, of all things. (I don't know what it is about a cell phone the dog supposedly smells). Drug and bomb detecting dogs don't work well in noisy chaotic environments, and even in quieter quarters they often miss their mark. Even if cell phones do have some specific scent, I have a hard time imagining in a prison environment dogs would be able to stay focused and consistently perform the task.

To me the best solution is much simpler: Finish implementing the new phone system to give more prisoners more frequent access to telephones for legitimate purposes, and fully staff prisons so that, as happened in the Clemens Unit anecdote, prisoners are adequately monitored and someone will likely see them talking on the phone.

Finally, a prison unit with a large number of cell phones is usually a prison unit containing one or more corrupt guards. It's one thing to hunt for cell phones by whatever means after they're inside, but a lot better for everybody if wardens install preventive measures up front to keep staff from smuggling contraband in the first place and actively root out corruption in their ranks.

AG Abbott disregards Public Information Act to conceal Governor's daily schedule

While this isn't a criminal justice story, I can't help but indulge in an off-topic post to express disapprobation at the Attorney General's blatant disregard for their own open records standards to allow Governor Rick Perry to conceal his personal schedule from the public.

Last week Attorney General Greg Abbott's office approved a request by Governor Perry's staff (see the July 10 letter ruling) to conceal the Governor's prospective daily schedule from an Austin TV station, even with times and locations omitted, citing "special circumstances" under the Public Information Act in order to protect Perry's "privacy rights."

I've received appointment calendar information from public officials in numerous open records requests over the last two decades, so I'm fairly familiar with the historic standard surrounding such information, which the AG letter articulated quite adequately:

This office considers "special circumstances" to refer to a very narrow set of situations in which the release of information would likely cause someone to face "an imminent threat of physical danger." .... Such "special circumstances" do not include "a generalized and speculative fear of harassment or retribution."

So how does releasing the Governor's schedule (with the time and locations omitted) create an imminent threat of harm? Here's the explanation given for how that works:

The governor asserts that the information at issue must be withheld because the privacy rights of the Governor include the right to be safe from physical harm. The governor states that, "the subject matter of some events inherently reveals the time and location of the event." For example, the governor states that "if only 'Aggie Muster 2008' is listed for a particular day, one could quickly determine the location and time of the annual Aggie Muster." Additionally, the governor states that "by providing a schedule to the requestor with the location and times redacted, the order of Governor Perry's day would still be revealed." The governor explains that "[b]y doing research to determine the location and time of each item on the schedule, combined with the order of his day being revealed, it would be very easy to determine when and where [Governor Perry] would be at any given time." Thus, the governor asserts that the requested information reveals detailed time lines of Governor Perry's future daily activities, and that release of this information would be valuable for someone who intended to cause him harm. Based on these representations and our review, we determine that the release of the information at issue would place the Governor in imminent threat of physical danger. Accordingly, the governor must withhold the information at issue under section 552.101 of the Government Code in conjunction with the "special circumstances" aspect of common-law privacy.

This, of course, is Pure-D foolishness. How can danger be "imminent" if, upon receiving the information, a potential perpetrator could not pose a danger to the Governor without first "doing research to determine the location and time of each item on the schedule"? And anyway, the recent attack at the Governor's mansion occurred at a time when Perry has been living elsewhere for many months (assuming a perpetrator would have to do "research") - there's simply no reason to believe beyond a "generalized and speculative fear" that anyone's out to harm him.

Without this strained definition of "imminent," the Governor's schedule of events in which he's participating as a paid elected official is clearly public information.

This was a terrible, embarrassing ruling. It should be revisited and reversed.

Rozita Swinton a no-show at Colorado court hearing: When will we hear her story?

Alleged hoaxter Rozita Swinton, whose phone calls in March to a San Angelo women's shelter set off the Great Eldorado Polygamist Roundup, skipped out on her court date yesterday on an unrelated hoax phone call in Colorado Springs, CO.

Like a lot of the media, I suppose, Grits diverted focus from the Great Eldorado Polygamist Roundup after the FLDS kids were ordered back to their parents, but it always struck me that the most important parts of this story remain untold: Namely, Rozita's role, her motives, and the inside scoop on what really transpired between her, Texas law enforcement and anti-FLDS activists in Utah in the five days before the raid. That sordid tale deserves to be told more completely, since assumptions and decisions made during that period defined and ultimately tainted everything that happened afterward.

Finally answer me this: Since authorities are sure she was the source of the hoax phone calls that began the Great Eldorado Polygamist Roundup - which has cost Texas taxpayers millions and given the state justice system a global black eye - why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture.

BLOGVERSATION: Several posts about Swinton are up over at Modern Pharisee.

Did Los Zetas infiltrate Collin County law enforcement?

Not long ago I asked "What's the matter with Plano?" and the Collin County justice system, but ... Holy crap! This Dallas News story("Mexican drug cartel may have had help from Collin deputy constable," July 15) alleges a deputy constable in Collin County may have been in cahoots with a relative working for Los Zetas:

One of Mexico's most powerful drug cartels may have had some inside help in North Texas for several years from a Collin County deputy constable, according to police documents.

Robert Benavidez, whose career as a North Texas peace officer dates back almost a dozen years, was arrested July 8 on six counts of abuse of official capacity. He is accused of helping his cousin, Sergio Maldonado, who was believed to have been the North Texas "cell leader" for the Zetas, the ruthless enforcement arm of Mexico's Gulf Cartel drug smuggling operation.

Mr. Maldonado was among 30 people arrested last year during a massive federal drug sweep known as Operation Puma. Mr. Maldonado pleaded guilty earlier this year to drug trafficking and money laundering-related charges.

Beginning in 2004, while working as a deputy constable, Mr. Benavidez would periodically check law enforcement databases to determine whether Mr. Maldonado or his wife had any outstanding arrest warrants, according to arrest affidavits. Mr. Benavidez would also check the registration and ownership of suspected law enforcement surveillance vehicles, according to the arrest documents. In return, Mr. Benavidez was given several grams of cocaine, Mr. Maldonado told federal agents.

That's a pretty wild story. Most cartel-related police corruption on the US side historically occurred along the Mexican border; Collin County, by contrast, is just one county away from the Oklahoma state line.

For several years now this blog has maintained that border security and anti-drug funds aimed at international trafficking should go first to identify and prosecute police corruption before paying for hardware and training. This story shows that strategy is needed statewide, not just in counties along the Rio Grande.

Next DPS leader faces trooper shortages, low morale

On the heels of the announced retirement of Texas Department of Public Safety Colonel Tommy Davis last week, the SA Express News published a story yesterday describing problems of understaffing and declining morale at the agency ("Troopers say they are just fatigued," July 13):

Some troopers concede they don't look for illegal drugs during a traffic stop or check to see if the motorist is a convicted sex offender violating his probation.

“I'm not going to look for dope. ... I'm not going to look for anything else because if I do, I'm not going to get enough speeding tickets, I'm not going to get enough seat-belt tickets, and I'm not going to get DWI arrests,” said the North Texas trooper.

More complicated violations resulting in arrests means “you don't have the magic number of speeders and you get hammered (by superiors),” the trooper said.

The short-staffing means troopers are rotating through South Texas shifts to beef up border security as part of Operation Border Star. The rotations involve 13-hour days for 15 days, now expanding to 28 days, with no more than a single day off every five or six days, they said.

A Dallas-area DPS sergeant with nearly 20 years in the agency — who is counting the months and days before his exit — says morale is “the lowest it's ever been.”

“DPS brass doesn't have a clue what our needs are, for the most part. Most of them are so far removed, and we've become so bureaucratic. Stuff that I used to be able to just go out and do, I now have to write a memo that I'm thinking about doing this, and then I have to write another memo after I did it,” he said.

One of the agency's core problems, he said, is the layering of new responsibilities without funding to meet them.

The agency has 250 officer vacancies and cannot recruit enough candidates to fill them. Just over 100 graduates from the DPS training academy will join the agency this fall. But the hole will get bigger because of retirements — and nearly 25 percent of DPS graduates quit before their 10th anniversary, according to department statistics.

I was unaware DPS' staffing woes had become so severe, though nearly every law enforcement agency in the state of any size is having trouble recruiting officers. To my mind, some of the shortfalls result from mission creep (e.g., the Border Star operation) that's diverted DPS troopers' attention away from the agency's historic law enforcement priorities.

The story also revealed sources of internal DPS criticism over the Governor's border security initiative, which appears to be causing significant disruption for DPS officers with little tangible result:

The state's Operation Border Star is a particular irritant because it requires troopers to temporarily move to the border region — away from their families — causing shortages in other areas.

A veteran trooper in West Texas the operation a huge waste of time and money.

“It is not productive. It is being used for political purposes,” the trooper said.

He recently worked a 13-hour night shift during which he stopped one motorist for speeding.

“Not another vehicle came down that highway the entire night. I sat in my vehicle and did nothing.” he said.

Sounds like Colonel Davis' replacement will have quite a job on their hands to restore morale and refocus the agency on its core mission.

Man Bites Dog: Dallas appeals court tosses drug conviction for lack of evidence

Recently I argued that a prime reason for wrongful convictions is that courts frequently don't require sufficient evidence to prove an offense beyond a reasonable doubt, allowing convictions based on uncorroborated eyewitness testimony, sloppy forensics and coercive interrogation tactics. So I was pleased when, via Pete at Drug War Rant, I saw this Greenville Herald Banner story ("Eighty five year sentence for drug possession overturned," July 13) about a drug conviction overturned en toto by the Dallas Court of Appeals because the evidence presented did not conclusively incrimnate the defendant:

An appeals court has overturned the conviction and lengthy prison sentence given to a Greenville man, whom authorities said sold crack cocaine and ran prostitution and gambling operations from a residence near a local school.

But the Fifth District Court of Appeals of Texas at Dallas did more than just throw out the 85-year sentence for drug possession a Hunt County jury handed down after convicting Allen Lane Whittaker and order a new trial in the case.

In an opinion issued Thursday, the panel ordered Whittaker’s acquittal, claiming the evidence used to convict him was insufficient and the sentence was improperly enhanced.

It's hard to say whether this case will have broader implications, but it's sure an unusual outcome. Here's the explanation of the charge and the court's ruling:

The charge Whittaker was facing is typically a third-degree felony, punishable by a maximum sentence upon conviction of from two to 10 years in prison. The potential punishment was enhanced to that of a first-degree felony — or up to life in prison — due to Whittaker’s previous convictions and the fact the offense was in a Drug Free Zone.

However, on appeal, Whittaker’s attorney argued that at the time of the raid on the residence, Whittaker was not present, but was asleep at his mother’s house next door. The cocaine itself was found hidden between two slats of a privacy fence which was easily accessible to the public, the appeals court ruled, meaning that Whittaker was not in proximity to the cocaine and it was not accessible to him at the time.

There was evidence presented at trial that Whittaker had access to and may have resided in the house, raising suspicion that he knew about the cocaine in the back yard.

“However, proof amounting only to strong suspicion or mere probability will not suffice to show appellant had knowledge and control over the cocaine appellant was charged with possessing,” the appeals court ruled in its opinion. “Accordingly, we reverse the trial court’s judgment and render a judgment of acquittal.”

Whether or not Whitaker owned the drugs, it's pretty clear the state couldn't prove it to the beyond a reasonable doubt standard, but that didn't stop a jury from convicting him.

This was a high-profile case in Greenville, which is not a large town; both the prosecutor and the officer involved even received civic awards. As a result, I'm sure locals will be circling the wagons around the officer and ADA, but that's actually a counterproductive tactic if the goal is to prosecute the guilty and avoid accusing the innocent. When officials feel pressure to "do something" about a situation like that, there's a natural temptation to cut corners in ways that courts have too often encouraged. Perhaps the Dallas Court of Appeals - having witnessed first-hand the Dallas fake drug scandal and a slew of DNA-based innocence cases - has decided to put its foot down and start requiring more solid proof instead of mere "suspicion" and "probability."

In like a lion, out like a lamb: Proposal to end TYC conservatorship draws media yawns

After the absolute media frenzy surrounding the Texas Youth Commission's every foible over the last year, can anybody explain why there's been no MSM coverage of last week's recommendation to the Governor to end the agency's conservatorship and appoint a new executive commissioner? I expected to see coverage this weekend, but so far, nada. (The Abilene Reporter News had a TYC-related feature on Saturday, but didn't mention the recommendation and focused mostly on local and regional concerns.)

Perhaps it's because, like me, reporters haven't had time to thoroughly vet the 120-page reform plan (pdf) released by the conservator on Friday detailing the steps TYC has taken and should take toward ending its limbo status.

TYC's fundamental problems haven't changed much. Texas runs large youth prisons with hundreds of kids in the biggest facilities, mostly located in rural areas where it's difficult to find quality staff. Indeed, the shortage of quality workers for these large units is rapidly becoming critical. According to the reform plan (p. 7), even using extensive staff overtime TYC facilities are in compliance with minimum staffing requirements just 72.5% of the time. And as problems at large facilities get worse, it becomes harder and harder to recruit.

Juvie best practices aimed at reducing recidivism would use smaller, regional facilities like those recommended last year by the Governor's Blue Ribbon Panel. However, those recommendations were largely ignored and the reform plan does not describe such a transformation, instead spending new construction funds to renovate current facilities to create cells instead of open bay dorms. That's an improvement from a staff and youth safety perspective, but it's a long way from the rehabilitative model really needed at the agency.

If this is all the reform we get out of the conservatorship process, it will have been a missed opportunity. One hopes the Sunset Commission will more radically reorganize the agency into smaller, regional facilities, and if I had my druthers the conservatorship should continue until that process was complete.

On the sources of volitional jail overcrowding in Bexar County: Why solve a problem when you can create one?

Bexar County District Attorney Susan Reed must pride herself on an overcrowded jail, because she's insisting on policies that keep it needlessly full.

Bexar County jails probationers based on flawed drug tests and insists on jailing petty pot smokers - often for only a few hours - even when the jail is jam packed. Meanwhile, Bexar keeps more misdemeanor defendants in jail pending trial than any other big Texas city. Virtually the entire jail overcrowding problem in Bexar is volitional, representing choices by the DA and judges instead of trends based on criminal activity.

A TV news station in San Antonio ran a feature questioning why Bexar County law enforcement agencies haven't been using new authority to issue citations for certain low-level misdemeanors approved in HB 2391 in the 80th (2007) Texas Legislature:

"My hope is in the long term a substantial number will take advantage of it," said Rep. Jerry Madden, R-Plano.

The new state law gives officers the option to write a ticket for many misdemeanor crimes, including possession of less than four ounces of marijuana.

Since the law went into effect last September, the San Antonio Police Department and the Bexar County Sheriff's Office have made nearly 5,000 busts for marijuana possession.

The I-Team has uncovered out of those cases none of the officers wrote a ticket. So why isn't Bexar County taking advantage of the new law?

"Rep. Madden may wish to minimize marijuana possession. I don't," said Bexar County District Attorney Susan Reed.

Travis County is the only agency in the state that's using the new citation law. (ed note: incorrect - see below)

Last month, 37-year-old Adrian Williams was caught with a few ounces of marijuana. Instead of being arrested, he was given a ticket by a Travis County deputy and was told to show up to court.

After appearing before the judge, Williams left the courtroom and headed over to be booked, meanwhile the deputy who busted him was never taken off the street.

"Like most agencies, we don't have enough patrol officers out there. And it's not very efficient to bring someone out of their district for sometimes four hours to book somebody for a relatively minor offense," said Major Scott Burroughs with the Travis County Sheriff's Office.

The only difference if Williams had been arrested in Bexar County versus in Travis County is the timing.

In Bexar County, an officer would have arrested Williams on the spot and taken him right then and there to jail. While there he would have sat in jail for several hours before appearing before a judge.

Williams, a father of four, says he would have lost his job if he had been arrested the day he was caught with marijuana.

"Instead of having to be locked up and having no job to go back to, just take off a day, take care of what you got to do and go back to work," he said.

For the past eight months the Travis County Sheriff's Office, has been writing tickets instead of making arrests for misdemeanor marijuana possession. By doing so the jails are now less crowded and deputies remain on patrol longer.

It also cuts their fuel usage since deputies are no longer making so many trips to the county jail.

"Everything has been plus, plus, plus. We have not found a single negative to it yet," said Burroughs.

It's actually incorrect that Travis County is the only agency using the new authority - that error was published last fall in the Dallas News and has been repeated by other reporters. However, several agencies including Dallas PD and some smaller counties are writing tickets for certain B misdemeanors. The story also implied the new law only applies to marijuana, but there are a number of less controversial offenses also authorized to receive tickets.

If Bexar had implemented HB 2391 last year, officers could have saved literally of thousands of unnecessary trips to the jail to process misdemeanor arrests. Each such arrest took an officer off the street for processing, and at $4+ per gallon travel expenses begin to add a significant expense to the mix. Giving tickets for these offenses would increase the number of police on the street plus reduce travel costs, jail overcrowding, and 911 response times. Where are the fiscal conservatives when you need them?

Would it really have "minimized" marijuana possession to give citations instead of making arrests? The offense level and punishments remain the same; officers would just have the discretion not to process certain defendants through the jail. In most cases B misdemeanants are released from custody within 24 hours or less and the penalty is virtually never incarceration (because the jail is overcrowded), so what exactly is the point? None of the offenses for which citations were approved pose a public safety risk, and officers would still have authority to arrest when they think the situation warrants it.

For my money, Ms. Reed's position minimizes the importance of 911 response times, keeping officers out on the streets for public safety, as well as the impact an overcrowded jail and transportation costs foist upon the taxpayers. She certainly doesn't seem to be balancing those interests with her concern about sending a tuff message on pot.

Costs of jail privatization debated in Waco

Reacting to proposed privatization plans for the local jail that only drew one bidder, the Waco Tribune Herald editorial board declares that "turning to a private contractor to run a jail is a cop-out." The paper raises important questions about privatization that arguably apply equally to privatizing treatment services in the state prison system ("Costs of privatization," July 13):

Since control of the Legislature changed hands in 2003, Texas has been in a dither attempting to convert things done by government to things done by private enterprise.

Lawmakers have found out it’s easier said than done.

Time after time the state has had to step back from sweeping privatization edicts. Either too few bidders stepped forward to provide services or those who got contracts dropped the ball.

So while it’s troubling that McLennan County commissioners are considering doing the same with their jail, it’s good that they are going to take their time and not take a leap based on misleading advertising.

That's a great point. The same thing is happening with state proposals to privatize treatment at Substance Abuse Felony Punishment (SAFP) facilities and Transitional Treatment Centers (TTCs). Nobody bid on the contract to provide TTC services, creating serious potential bottlenecks in programming.

I don't inherently oppose privatization, though neither do I consider the idea inherently worthy and in jails and prisons it can create pretty gaping accountability problems. However the lack of bidders on recent projects creates a whole additional set of issues state and local government must now face.

Should jails and prisons really only provide services "the market" is willing to provide? When there is no market - or if the market consists only of one bidding firm - shouldn't government go ahead and pay its own freight? I understand why privatization should be an option, but why should it be desired when it limits government options instead of expanding them?

Right now federal immigration enforcement is driving dynamics in the private prison industry. Immigrant detention contracts are much more lucrative than county or state lockups, so as long as US Attorneys in Texas' Southern and Western Districts keep filling their dockets with politically popular immigration cases, local jails and Texas state prisons will be unattractive options for privatization - the handful of firms in the market can simply make more money housing less dangerous immigrant detainees. That's likely the cause for their short-term disinterest.

OTOH, in the long-term the private prison industry's over-reliance on immigration detention creates significant risk for McLennan County if US immigration laws ever changed and private prison demand declined. For that reason, IMO the editorial board gave privatization proponents an unnecessary pass by not more thoroughly interrogating claims of cost savings. They wrote:

Yes, privatizing the jail likely will save money. A bidder will do whatever it needs, cut every necessary corner, to meet any dollar figure that will win its way into a government contract.

The fine print is that private enterprise won’t necessarily do the job better, or with sufficient accountability that taxpayers know that it is so.

I agree private companies may cut corners, but there's actually quite a bit more fine print than that involved and I wouldn't be so certain at all that privatization will save money. That's because the McLennan County Commissioners Court proposes significantly overbuilding the jail so a private contractor can make extra money renting out space to others. As the Tribune Herald reported in May:

Commissioners hope to look far enough into the future and build a large-enough jail that can help pay for itself or make money for McLennan County by leasing prisoner space to other counties with overcrowded jails

So alleged savings only occur if the county can rent extra capacity to other, which assumes that detention rates remain at their current astronomical levels. If under a new President Congress implements comprehensive immigration reform, all the private facilities currently housing immigrants could begin competing with the county's overbuilt facility, leaving taxpayers holding the bag paying long-term debt for jail space they don't need because a bad business bet didn't pay off.

Related Grits coverage:

• Deputies oppose Waco jail privatization plans
  
• What options besides jail building for Waco?
• A couple of Jillls with their eyes on a couple of bills

Cop who faked search warrant documents should be prosecuted

Here's a rather astonishing and unsettling story of a veteran officer's abusive exploitation of a confidential informant at the Edinburg Police Department from the McAllen Monitor ("Police officer faked drug warrants, exposed informant," July 10):

Edinburg police uncovered the staggering list of suspected abuses in an internal investigation launched last year when a confidential police informant claimed he was kidnapped and beaten after Sgt. Santos Leal, 42, revealed his identity.

No charges have been filed against Leal, who admitted during a lie detector test earlier this year that he falsified warrants and probable cause affidavits to search suspected drug houses, according to the documents, which were obtained this week following an open records ruling from the Texas attorney general. ...

[I]n a March 26 memo to Diana Salas, the city's civil service director, the chief explained the grounds for Leal's suspension. Investigators found that the sergeant had used drug evidence with the wrong cases, disposed of narcotics evidence and improperly stored evidence envelopes in his desk.

The probe also revealed that Leal could not account for drugs allegedly purchased by a confidential informant and used by Leal as the basis for five search warrants.

During a subsequent polygraph test, Leal admitted that for at least two of those, he had merely cut and pasted information from other warrants and that no drug purchases were ever made, the memo states.

He also admitted to reprinting prior warrants from other cases and changing times, dates and locations to obtain legal permission to search other suspected drug houses, according to the memo.

"You admitted that you knew the information was incorrect, but left it as is and never took any corrective measures," Muñoz writes.

Edinburg police launched the internal investigation into the sergeant in October after one of his confidential informants claimed that he was kidnapped and beaten after Leal revealed his identity. ...

The informant also told investigators Leal allowed him to keep drugs he purchased as part of police investigations and encouraged him to deliver cocaine to homes the sergeant later searched, according to the memo. Leal is also suspected of allowing the informant to smoke cocaine and drink alcohol in his unmarked police car.

None of the cases the sergeant built with this confidential source in a two-year period ever resulted in prosecution.

Leal has contested his suspension from the department and is expected to plead his case before the city's civil service commission next week, Muñoz said.

My question: If this officer admitted in March to falsifying documents in order to obtain search warrants, getting fired should be the least of his worries. Why isn't he being prosecuted? If he already admitted the offense, what could be the holdup?

Oh yeah ... Edinburg is in Hidalgo County. The DA there apparently doesn't cotton to prosecuting folks with badges.

Top DPS cop will step down Aug 31

Texas Department of Public Safety Colonel Tommy Davis announced his pending retirement after 43 years with the agency. Here's a roundup of MSM coverage:

• Dallas News
• Austin Statesman
• Houston Chronicle
• AP

Under Davis DPS grew into a fiefdom that may be dismantled upon his departure. Poor security during the Governor's mansion fire seems to have provided an excuse for Davis' critics to unleash long-pent up disapprobation in what has turned into a near-perfect storm for the long-time agency head. DPS was already engaged in a struggle with the Governor for control over Texas emergency management services, the Sunset Commission proposed taking away driver license and vehicle registration duties from DPS, and problems at DPS-run crime labs have generated calls for independent management. At a recent Sunset Commission hearing, the Colonel took more heat from legislators than probably at any previous time in his tenure.

Colonel Davis deserves thanks for more than four decades of service to the state in a DPS uniform. Despite recent criticisms, I'm glad to see him going out on his own terms. Good luck, Colonel. Enjoy your retirement.

MORE: From Kuff, Paul Burka, and the Texas Observer.

Guns, Drugs and Cookies

Each of these stories in its own way tickled my funny bone:

Wautaga teen no Cookie Monster
Lake Worth police arrested an 18-year old who dropped off cookies at the police station after they claimed a field test of the cookies showed positive for marijuana and LSD. Tests by the medical examiner, however, found nothing but chocolatey deliciousness. ;) The youth was "delivering cookies to area police departments for Mothers Against Drunk Driving as part of his community service for a previous arrest," reported the Fort Worth Star Telegram.

Driving down drug supply in Dallas
Dallas detectives found 20 kilos of cocaine in a vehicle seized in a drug case that detectives had been driving around town for two months. Another car seized at the same time was sold at auction, but if the new owners found their own 20 kilo gift package they've so far failed to speak up. I guess those police drug dogs aren't quite as reliable as advertised. I wonder how often people find little gifts like that when seized vehicles are sold?

Ex-SAPD gun found in illegal London stash
A gun that was apparently sold as surplus by the San Antonio PD - a .40 caliber semi-automatic pistol - turned up in a drug bust in London that found several illegal weapons. The story's not really a big deal, but it caught my eye because, when I first read the line "One gun was originally owned by a Texas police force," my immediate (mistaken) thought was that maybe it was one of these guns stolen from the Houston police department evidence room. I wonder when and where those will turn up?

TYC reform plan proposes ending conservatorship July 31

TYC Conservator Richard Nedelkoff this week forwarded a reform plan (pdf), an extensive 120 page publication I've only just received, to the Governor which included a recommendation for ending his conservatorship at the end of July 2008 (!) at which time he also anticipates hiring a permanent executive director. Here' the text of Nedelkoff's most recent email to employees:

Last week, I sent to the Governor’s Office and Legislature the TYC ‘Reform Plan,’ which documents the steps that have been taken in reforming TYC as well as the actions that remain to be completed before the agency meets all of the requirements laid out in SB 103. The plan is comprehensive and covers: hiring professional staff, training, revision of policies and procedures, youth classification and assessment, rehabilitation and treatment programming for our youth, use of force, and dormitory reconstruction.

Please note that while this plan includes a recommendation that conservatorship be ended July 31, 2008, the decision is ultimately up to Governor Perry and legislative leaders.

I hope you will take the time to read the Reform Plan. Each of you has done your part to move this agency forward. I hope you will all be as proud of our accomplishments as I am.

My bests,

Richard

TYC and juvie corrections folks in particular are strongly encouraged to give the document a read (or at least a skim) and let me know what jumps out at you in the comments. I'll try to examine the reform plan in more detail on Grits in the coming days, but am equally curious to hear what others think.

Also, let's just pose the question straight up: Is the agency ready to come out of conservatorship? Are there any benefits to conservatorship that couldn't be equally realized under a permanent executive director?

Pending SCOTUS case could moot Sunset proposal to admit DWI breath test results without cross examination

Poking around the Sunset recommendations for the Texas Department of Public Safety, I was a little surprised to see this proposal for "streamlining" hearings for administrative license revocations after DWI:

Require affidavits of breath test operators or breath test supervisors to be admissible without the witness' appearance unless the judge finds that justice requires their presence.

According to the Sunset report, "DPS issued 100,472 notices of suspension to drivers in fiscal year 2007. Defendants requested hearings in 26,492, or 26 percent of the cases." When defendants requested hearings, 18% were dismissed because police or breath test supervisors did not show up at the hearing, and in another 8% DPS failed to meet its burden of proof as judged by the hearing examiner.

The Sunset staff and some legislators like Linda Harper-Brown support doing away with face to face confrontation of witnesses in administrative license revocation hearings, allowing either testimony by phone or merely letting lab reports be submitted as evidence without cross examination. At a hearing on June 24, Harper-Brown argued that forcing officers to attend ALR hearings took them off the street where they would otherwise be performing presumably more important duties. Testifying in the cases they make, however, seems like a pretty important function of a police officer - if a case is worth prosecuting it's worth supplying witnesses and evidence.

The proposal highlights the importance of a case pending before the US Supreme Court for its fall docket (see the SCOTUSWiki page), Melendez-Diaz vs. Massachussetts, that will determine whether lab reports are testimonial documents (see prior Grits coverage).

The problem arises in DWI cases because we know for a fact that breathalyzer technology can be inaccurate. By comparison, field sobriety tests given on the side of the road are even worse: they don't have enough research-based support to even label them junk science; they're just junk. State law specifically allows defendants at the ALR hearing to interrogate "the validity of the test results," according to the Sunset report, so the ability to confront the arresting officer and breathalyzer technician becomes potentially important when contesting an administrative license suspension.

Similarly, we're increasingly learning that many branches of forensic science - ballistics, arson, handwriting analysis, shoeprint matching, breathalyzer tests, urinalysis, etc. - simply aren't as reliable as people (and courts) assumed in the past. That's why I expect, or at least hope, that SCOTUS will decide for Melendez-Diaz and continue to allow cross examination of forensic findings.

In a guest column in the July 14 National Law Journal, Matthew Kaiser calls Melendez-Diaz the "most important case for the future of our criminal justice system," arguing that "The court should reaffirm our collective commitment to a vigorous adversarial system, and hold that forensic evidence must be subjected to cross-examination."

If SCOTUS follows that advice, the Sunset Advisory Commission's recommendation on ALR hearings would immediately become moot. For that matter, even if SCOTUS doesn't require allowing confrontation for forensic reports, Texas should continue to do so in this and other cases as a routine matter of policy. Forensic science isn't neutral and the criminal justice system shouldn't pretend that's the case just for convenience's sake.

Criminal Justice Agencies Under Sunset Review

The Sunset process (a once every 12 year evaluation of individual state agencies) is in full swing this year for a handful of Texas criminal justice related agencies, including:

• Department of Public Safety (staff report) (sunset recommendations) (public comments)
• Jail Standards Commission (staff report)
  
• Commission on Law Enforcement Officer Standards and Education (staff report)
• Juvenile Probation Commission (staff report)
• Youth Commission (staff report)

DPS, obviously, is furthest along in the process, having already held a hearing a couple of weeks back to discuss the staff evaluation. (See Austin Statesman coverage of the hearing). The TCLEOSE review should be nearing completion, while the reviews of the Jail Standards Commission, TYC, and the Juvenile Probation Commission began in May and will conclude in the fall.

TYC is an unusual case, having gone through the Sunset process last year. They were required to endure the vetting again because of the hoopla over sex abuse allegations in West Texas and the resulting political fallout and legislative reforms.

I'll take a look through some of this material myself in the coming days and perhaps highlight some of the major items that jump out. Until then, here's a good summary for how the public can get involved from the Sunset Commission website:

How Can the Public Participate in Sunset?

Members of the public who participate in the review process can provide valuable information to the Sunset Commission about how well or poorly an agency performs its functions. Individuals and organizations usually participate by identifying potential issues for study and by commenting on proposed changes to the agency. The public can participate in the review of an agency by:

• Input with Staff. The staff seeks input during the review at which time interested persons and organizations may voice their concerns about the agency. Please submit your input on the feedback form and send us your comments.
• Reviewing Sunset Documents. Sunset documents, including reports and decision materials, are made available to the public on a regular basis to keep the public informed on the progress of the review.
• Testifying at Public Hearings. The Commission holds public hearings on each agency under review. These hearings offer the public an opportunity to testify on the agency and related recommendations. Multiple agencies are considered within one meeting and many interest groups, professional trade associations, and members of the public may attend and provide testimony to the Commission. If you would like to testify before the Commission, witness affirmation forms are available at the meeting.
• Taking Part in the Legislative Session. Generally, if an agency is to be continued, a bill must be passed by the Legislature. The public can participate in the same way as with any other legislation.

Inmate firefighters

In exchange for $1 per hour and time shaved off their sentences, about 2,500 trained inmate firefighters are assisting the state of California to combat its annual summer wildfires. Cool story in the Christian Science Monitor, including this observation from a free-world fireman:

The program has had few escapes or incidents of misbehavior, say officials. "I don't worry too much. When the bell rings, they are firemen and they act like firemen," says Mike Parry, a crew technical specialist with the state agency CAL FIRE. "The inmates, at least in our camp, really never let me down on a fire."

Hidden costs of incarceration

The Wall Street Journal has a piece today focusing on the "hidden" costs of incarceration ("Communities pay for high prison rate," July 10) defined as

financial burdens that communities are often left to manage. For every person who goes to jail, businesses lose either a potential employee or customer. Inmates' children often depend on extended families, rather than a parent, to raise them. With only so many government resources to go around, churches, volunteer programs and other groups must often step in to help.

Uncounted costs identified by the Journal include money families spend to care for kids who're left behind, social services for children and spouses, and large numbers of "missing" young men between 18 and 35, particularly in Hispanic and African American neighborhoods. "I have a lot of real young customers whose mommas bring them in and I have customers that are older," said a 47-year-old barber in Phoenix. "The young black men in this area are extinct."

Family and charitable support aren't calculated in the government's numbers, says WSJ, but they represent significant costs nonetheless.

Another incalculable loss - children of incarcerated parents grow up in a culture where they view prison as a familial norm and are 5-7 times more likely than their peers to wind up there themselves. What's more, kids learn at a young age to fear the police and take an oppositional attitude toward law enforcement.

Says David Kennedy, director of crime prevention and control at John Jay College of Criminal Justice in New York, "It's not arguable any longer that some of the things we're doing to fight crime are promoting crime and exacerbating poverty."

Dallas to create specialized prostitution court

It may be the oldest profession, but not many young girls will tell you they want to be prostitutes when they grow up.

Instead, the path that leads them to that point frequently involves poverty, abuse, addiction, or some combination of the three. Often women committing these crimes - particularly on the low end of the economic scale - arguably are the primary victims in the situation in addition to being criminal offenders.

Building on the model established by drug courts, Dallas County will create a new specialty court aimed at prostitution using stronger probation and more aggressive judicial oversight, particularly for chronic offenders. Reports the Dallas Observer ("Courting Hookers," July 10):

Criminal District Judge Lana Myers will preside over the STAR (Strengthening, Transition and Recovery) Court, which will become one of the county's 11 "specialty courts"—those dedicated to handling specific criminal behaviors—and one of the first specialty courts for prostitutes in the country. The court, which opens on July 21, is the brain child of Criminal District Judge John Creuzot, the father of the diversion programs operating in Dallas County, which offer offenders an alternative to incarceration through intense supervision and treatment.

"There are a lot of women who want to come into the normal world and don't want to be prostitutes, but every time they come to the courthouse, it's the same response," Creuzot says. "So what we're trying to do is be more proactive in what it is we're doing to address the underlying issues."

In early 2007, Creuzot approached Myers with his plans for a prostitution court. Although its parameters are still a work in progress, a candidate for STAR Court must having a pending charge for felony prostitution, which means she has already received two prior misdemeanor prostitution convictions. Like two of the county's drug diversion courts—DIVERT Court for first-time drug offenders and Re-entry Court for ex-convict drug offenders—the court will be designed to reduce recidivism and thereby ensure public safety through extensive judicial oversight. Defendants will be subject to intense supervision, both by a probation officer and Myers, who will hold STAR Court every Monday at 3 p.m. The court will use a state grant to pay for the probation officer and a licensed counselor, and it allows for a maximum of 50 cases. Myers says these cases will come from her court and possibly two other criminal district courts.

Myers feels she isn't naïve enough to believe that she's going to get every woman to change. "All I can do is give them the tools that they need and try to closely monitor them on probation so I know what's going on with them," she says. "And before they commit another offense, I'm trying to do everything I can to keep them from taking drugs, keep them off the street and find them housing."

If Myers needs any assistance, she might think about turning to Judge Kevin Sasinoski of Allegheny County, Pennsylvania, who, since 2001, has been in charge of a similar court called PRIDE (Program for Reintegration and Development and Empowerment of Exploited Individuals). He sees violators—many with 10 to 15 prostitution offenses—on a monthly basis.

Much like the STAR Court will do, PRIDE works to give prostitutes counseling and drug treatment, along with helping them get jobs and re-establish family relationships. Sasinoski says five women graduated from the year-long program in May, and 11 are scheduled to complete the program in July.

"If we have five women that have gone through the process, turned their lives around with regard to drugs, got some self-esteem back and realize that they matter, then that's a success story," he says. "That's five that might not end up on a street corner."

Not every local official fully embraces the concept of a specialty prostitution court. "I suppose it's the chic thing to do, but every time I look up there is another specialty court," says Dallas County Commissioner John Wiley Price. "That's all well and good as long as it gives benefits and gets results."

If what Price means by "results" is to minimize cost per case, he may be disappointed. Lately that seems to be his primary concern. But if by "benefits" he'd include the notion that stronger probation may give more young women a chance to turn their lives around, these types of focused specialty courts pretty much represent the cutting edge, evidence-based approach most likely to reduce recidivism among chronic offenders.

Some will fail, no doubt, but the failure rate of the current system is unacceptably high. The idea's certainly worth trying. Its success may depend on whether there's enough money for support services and to implement progressive sanctions for probation violators. I'm sure there's both crossover with what's involved in a drug court, and also specialized nuances to managing the group, some of which won't come out until the program is well underway.

Kudos to Dallas Judges Lana Meyers and John Creuzot for spearheading the project.

Feds want to install license plate readers along Texas highways; TXDoT says "no" so far

When the Texas Legislature authorized red light cameras last year in SB 1119, no one ever mentioned the idea of installing license plate readers along the highway to track travelers who aren't breaking any laws. But that's what the Drug Enforcement Agency and federal High Intensity Drug Trafficking Area (HIDTA) task forces want the Texas Department of Transportation (TXDoT) to agree to, according to testimony at yesterday's Senate Criminal Justice Committee hearing.

Stan Furce, Director of the Houston HIDTA, said the feds were prepared to spend nearly $15 million to install license plate readers along Texas highways, but TXDoT has told them the law does not allow it.

Clearly when the Lege authorized a "photographic traffic signal control system" they were approving red light cameras, not any possible photographic technology. Several provisions in the statute clearly preclude the feds using the bill as authority to put up a stateside monitoring system, including this passage:

Before installing a photographic traffic signal enforcement system at an intersection approach, the local authority shall conduct a traffic engineering study of the approach to determine whether, in addition to or as an alternative to the system, a design change to the approach or a change in the signalization of the intersection is likely to reduce the number of red light violations at the intersection

So a photographic traffic enforcement system must a) be implemented by a local authority, b) requires a traffic engineering study and evaluation of alternatives, and c) must be aimed at reducing red light violations. TXDoT is right to reject this proposed slippery slope; not only was it not the Legislature's intent to allow use of license plate readers, doing so on a statewide basis would clearly violate the statute as it's written right now.

Texas' anti-meth law shifted production to Mexico; prevention and treatment underfunded

At a Senate Criminal Justice Committee hearing yesterday, DPS officials said that restrictions on pseudoephedrine purchases dramatically declined after the Legislature required stores to keep the product behind the counter in 2005.

But a reduction in domestic production doesn't mean demand for meth has declined, just that the supply is coming from elsewhere - mostly from Mexico. According to the Brownsville Herald ("Officials fear new meth epidemic after record setting bust," June 28), police recently captured a 211 pound shipment of meth heading north from Mexico through the Rio Grande Valley, spotlighting an ironic trend where Mexican cartels have become the primary beneficiaries of the new law:

In 2005, Texas introduced its own measures restricting the purchase of products containing the drug's precursors. That prompted a nearly 73 percent decrease in lab seizures in Texas, according to statistics provided by the U.S. Drug Enforcement Administration.

It also drove production south, where Mexican drug cartels began producing enormous quantities to meet the ever-present demand, officials said. The Valley, a major corridor for drug trafficking, naturally became a highway for meth distribution.

"Through various chemical control programs we have been successful in reducing the amount of meth produced in the U.S.," said Will Glasby, a local official with the DEA. "That's leaving the Mexican drug cartel as the primary source for the majority of the meth in the U.S."

Brandi Grissom at the El Paso Times has good coverage of the portion of yesterday's hearing on drug policy ("Texas committee discusses drug enforcement, prevention," July 10):

Needs for treatment far outweigh the $38 million Texas spends for drug programs, said Mike Maples, director of mental health and substance abuse services at the Texas Department of State Health Services. Texas currently provides treatment to between 3 percent and 7 percent of the uninsured addicts who seek rehabilitation, he said.

"We have quite a large waiting list," he said.

But for every dollar spent on prevention, Maples said, Texas could save more than $5 from the negative economic impacts of drug use.

Gary Larcenaire, executive director of El Paso Mental Health Mental Retardation, said in a phone interview that prisons have become de facto treatment centers for drug addicts.

"We could use those resources to treat people in the community," he said.

Preventing drug use could also help reduce the demand for narcotics that fuels cartel violence in Juarez and across Mexico, El Paso County District Attorney Jaime Esparza said in a phone interview.

Drug abuse may never stop, and law enforcement will have to control the supply, he said, but the criminal justice system isn't the "end all."

Requirement to appoint indigent defendants a lawyer not an "unfunded mandate"

IMO it's a mistake for prosecutors and Texas counties to label additional indigent defense costs stemming from the Supreme Court's Rothgery decision an "unfunded mandate," which is what Shannon Edmonds from the prosecutors association said in a column by Fort Worth Star Telegram editorial writer Linda Campbell.

Texas counties have a big problem with actual unfunded mandates - i.e., when Congress or the Legislature create new responsibilities for local government but refuse to pay for it. But that's not what's going on with the Rothgery decision. Instead, Texas is one of a handful of states where counties weren't already meeting the minimal constitutional standard for indigent representation. SCOTUS told Texas and similarly situated states that they'd too narrowly interpreted their duty to appoint counsel under the Sixth Amendment. Campbell wrote:

Texas law had been interpreted to generally not require appointment until the first court hearing after indictment for defendants who are free on bond. In Rothgery’s case, the 5th U.S. Circuit Court of Appeals said he wasn’t entitled to a lawyer until the prosecution got involved.

Wrong, the Supreme Court said in an 8-1 ruling.

Justice David Souter wrote that "a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."

On one level, it’s understandable that judges might not appoint lawyers for defendants while they’re out on bond.

Taxpayer dollars are limited. A defendant who’s out of jail might hire his own lawyer, strike a plea deal with the prosecution or not even face prosecution if the case gets dropped or no-billed by a grand jury. Less cost to the public.

But without legal help, a defendant might be pressured to plea, misnavigate the system or linger in legal limbo. In Rothgery’s case, it would have been more efficient and cost-effective to avoid the expenses associated with indicting him, re-arresting him, holding another hearing, housing and feeding him in jail, getting the district attorney to review and drop the case charges — and then having to fight a federal civil rights lawsuit all the way to the Supreme Court and then some.

Fundamental constitutional obligations of government are not "unfunded mandates." In 43 other states before Rothgery, defendants who made bail were eligible for appointment of counsel. The US Constitution requires counties to appoint counsel when they want to prosecute someone, and SCOTUS told Texas counties they must play by the same rules as the rest of the country, that's all.

I also disagree with Campbell when she writes, "What we don’t know is what’s a reasonable time frame for making those appointments." It's true that SCOTUS gave no guidance on this topic, but Texas law is clear when counsel must be appointed. According to a recent Texas Lawyer story:

Under Code of Criminal Procedure Article 1.051(c), an indigent defendant in a county with a population of 250,000 or more is entitled to have an attorney appointed by the end of the first working day after he or she requests the appointment of counsel. An indigent defendant in a smaller county is entitled to have an attorney appointed not later than the end of the third working day after requesting an attorney.

So that's the timeline. All SCOTUS did was say the requirements for appointing counsel are the same for indigent defendants who make bond as for those who remain in jail.

I've got a lot of sympathy for counties when they face actual unfunded mandates that put untenable pressure on local budgets. But I've little truck with those who use the phrase to blame someone else for counties' failure to provide a constitutional level of legal representation.

Prior related Grits posts:

• Rothgery ruling 'trumped' counties leeway to delay counsel appointments
  
• A possible explanation for Rothgery confusion
• Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
• What does Rothgery really mean?
• SCOTUS to Texas: Provide counsel earlier in the process
• Rothgery v. John Wiley Price: Move to slash Dallas defender budget couldn't come at worse time
• When does the adversarial process commence?
• Number arrested with no charges filed closer to 2% than half
• Rothgery oral arguments reveal new insight about murky systems
• Do they really have to appoint you a lawyer when you ask for one?
• SCOTUS to decide in Texas case when right to counsel attaches

Crime lab workers suffer from "team spirit" mentality

It's one thing to change procedures in an institution, but quite another to change its culture, which is a challenge still facing the troubled Houston crime lab and other government-run forensic labs in Texas.

The publication Government Technology has an extensive feature focusing on the Houston lab as an example of virtually everything that can go wrong with forensic analysis, declaring that "Some problems with the HPD Crime Lab - such as underfunding, poor staff training and close ties to police and prosecutors - also may be inherent in crime labs across the country."

While many mistakes at the Houston crime lab resulted from sloppiness and understaffing, but nearly all errors tended to favor the prosecution over the defense:

In late 2002, television station KHOU in Houston looked into deficiencies of the HPD Crime Lab and asked William Thompson, University of California, Irvine professor and forensic expert, to investigate.

"The problems were just obvious," Thompson said. "They weren't running proper scientific controls. They were giving misleading testimony. They were computing their statistics incorrectly - in a way that was biased against the accused in many cases."

In some cases, Thompson found simple errors where documentation said Sample A matched Sample B, for instance, which was untrue. There were cases where Thompson found inconsistencies between the lab report and what was said in court. ...

Though most of the errors can be attributed to sloppiness, incompetence and lack of training, Thompson found that the lab ordinarily erred on the prosecution's side.

Thompson also said a lack of independence and "team spirit" favoring the prosecution contribute to misleading testimony and reliance on flawed forensics:

Crime analysts are given evidence from a crime and usually told to look for something in particular. When the evidence or lab test results are unclear, the analysts might have incentive to find results favoring the police's case. "I think forensic labs get a little bit caught up in the heat of the battle from our adversarial process," Thompson said.

"It's like team spirit. They see the defense counsel as their enemy and tend to be kind of secretive and not want to disclose things outside of the family."

The problem of a "team spirit" attitude is that when the wrong person is accused - like the Josiah Sutton case featured in the story - scientists may find themselves bending their results to benefit the wrong "team," or at least the team opposed to justice in that particular instance. Forensic labs should be more like referees than team players - neutral arbiters on which both sides can rely - but that's not how things operate in the real world.

This "team spirit" atmosphere doesn't just infect the Houston crime lab but is part of the overall culture in these institutions, or at least the ones directly associated with law enforcement. I'd not heard this anecdote, for example, which shows Texas state crime labs may face the same pressures as at HPD:

In January 2008, the HPD lab's DNA supervisor, Vanessa Nelson, resigned after an internal investigation concluded she had helped crime lab analysts pass DNA skills tests by improperly giving them test answers. Within weeks she was hired by the state crime lab as DNA chief, prompting State Rep. Kevin Bailey, D-Houston, to call the hiring "shocking."

Thompson said it was that inherent team culture that prompted Nelson to cheat. "The same kind of pressures that existed before existed again," he said. "Why would this brand-new head of the DNA unit cover up a cheating problem on proficiency tests? Because she's under the same pressure they were under before."

This notion that scientists are on one or another "side" of a criminal case leads to a situation where the basic tenets of science - particularly open mindedness and objectivity - become distorted in the service of an agenda. The adversarial system is designed to vet evidence, but indigent defendants cannot pay for private labs and don't have authority without a judge's approval to request specific tests from the state run laboratories.

Several people in the article called for making crime labs "independent," but they won't be truly independent unless defense counsel can request tests just like the prosecutors and the testers no longer believe they're on the prosecution's "team."

Feds inspecting Harris County Jail this week

The US Justice Department is inspecting the Harris County Jail this week in response to several high-profile inmate deaths and chronic overcrowding. See related MSM coverage:

• After inmate deaths, feds begin inspecting Harris County Jail, Houston Chronicle
• Feds inspect troubled Harris County Jail, AP
• Understaffing costs Houston taxpayers $150 million in overtime, Houston Chronicle
• Sheriff defends himself against controversy, Click2Houston
  

The article on overtime costs includes a graphic breaking down the largest sources of overtime costs - the Houston Police Department and the Harris County Sheriff, which together accounted for more than half of all government overtime expenses by Harris County agencies.

Related Grits posts:

• DOJ investigating Harris County Jail
• Houston judges responsible for massive overcrowding tab
• Elected officials to blame for Harris Jail overcrowding, says editorial
  
• 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
• JPI report illuminates causes of Harris jail overcrowding
  
• Harris County officials wrongly think they'll build their way out of jail overcrowding

CCTV proponents should abandon claims that surveillance cameras reduce crime

John Honovich, a consultant on video surveillance and biometrics, says in a meta-analysis of recent studies of CCTV effectiveness that the industry needs to change its marketing pitch. Particularly it must stop promising the public CCTV can reduce crime, primarily because virtually all the research on public CCTV use shows that it fails to reduce crime. As a result, Honovich makes the following suggestion for CCTV proponents:

Recommendation: Abandon emphasis on general crime reduction

Proponents of public CCTV systems should abandon the emphasis and claim that CCTV systems can reduce crime generally. Even if proponents ignore the fact that studies demonstrate this, clinging to this claim only creates greater debate and dissension.

By abandoning this claim, it will heal some of the major discord and allow all parties to focus on better uses of CCTV. Given the vastly improved quality of today's CCTV systems at greatly reduced prices, this should be reasonable to accomplish.

Honovich says CCTVs more important use is in solving crimes, citing the much-different reasons usually articulated for private sector adoption of cameras. So far, he says:

the focus of all quantitative analysis has been on reducing crime.

This is the mirror opposite of the private sector. In the private sector, the overwhelming majority of CCTV systems are justified by their use in solving crime. It is investigations where most private businesses find value and return in their CCTV systems. For businesses, only a very small percentage of CCTV cameras are ever even watched. The systems pay for themselves by periodically being able to identify or prove a criminal activity.

This indicates a failure of expectations for public CCTV systems. In the private sector, when CCTV effectiveness is discussion, the assumption is usually that CCTV is used for investigations. By contrast, the focus on public CCTV effectiveness being determined on reducing crime sets a dangerous expectation that is difficult to achieve and likely to create dissatisfaction within the community.

The problem seems to be the fault of the original advocates of these systems, rather than a deficiency of the testers. The academics and researchers performing these tests were reacting to the expectations that the proponents of these systems made originally.

So Honovich thinks public surveillance proponents have merely framed the problem incorrectly, that the studies showing negligible effects on crime mean that proponents must change their pitch. But if we're to judge CCTV by its effectiveness, what are we to make of news from the UK that in London, the most surveilled city on the planet, surveillance footage is used to help solve only 3% of street robberies?

A British detective writing in 2006 declared "CCTV viewing occupies a dis-proportionate amount of police time with very little tangible result," and that "identification is rarely assisted by CCTV" in police investigations. Typically, he said, the "footage will show that some kind of offence has taken place. It is more than useless for the purposes of finding out who did it."

Video surveillance works better when focused on low-traffic areas and high-value targets, which is how the private sector uses it - to protect specific assets. For example, cameras would have been a useful security measure in recent thefts from southeast Texas police property rooms. Parking garages are another area with low-traffic but high-value targets where studies show cameras provide added protection.

But general public surveillance? Not so much. According to the UK Guardian:

Use of CCTV images for court evidence has so far been very poor, according to Detective Chief Inspector Mick Neville, the officer in charge of the Metropolitan police unit. "CCTV was originally seen as a preventative measure," Neville told the Security Document World Conference in London. "Billions of pounds has been spent on kit, but no thought has gone into how the police are going to use the images and how they will be used in court. It's been an utter fiasco: only 3% of crimes were solved by CCTV. There's no fear of CCTV. Why don't people fear it? [They think] the cameras are not working."

IMO Honovich overstates the case when he says that "Widespread consensus exists that CCTV is effective in reducing premeditative/property crime." I don't think there's evidence that CCTV in public places reduces property crime. Used for specific high-value targets or in areas with limited access (e.g., the car park or police evidence room examples), there's a consensus cameras provide a significant added layer of security, but that's a more limited claim.

Even with Honovich's focus on solving crime instead of reducing it, the cost-benefit analysis for public camera surveillance hardly supports its use by police. Citing how much cheaper cameras have become and reduced costs for transmission systems, Honovich suggests that proponents of CCTV adopt a new metric to promote their product: Cost per camera. He writes:

While most studies cited general cost numbers, the cost per camera was largely ignored. The most frequently cited number is the amount the UK home office has spent on CCTV (500 million pounds). However, only the 2005 UK Home Office study actually broke down the cost per camera. Since the studies were focused on determining if the crime rate was reduced, this element is understandable. Nevertheless, communities could save significant money and improve effectiveness by more carefully tracking the cost per camera.

Understanding the cost per camera is important to recognize changes in technology and to identify waste. The 2005 UK Home Office report indicated that cost per camera ranged from $7,000 pounds to $33,000 pounds for cameras installed in the late 1990s and early 2000s.

This is a useful but IMO incomplete suggestion. A better metric would be "cost per crime solved using cameras." Simply measuring (or reducing) the cost per camera alone tells us very little about whether those cameras are making us more secure.

The studies Honovich cites have usefully demonstrated that, despite massive public investment in the UK in particular, surveillance cameras do not reduce crime on the front end. We also know that in a small number of criminal cases, they help solve them on the back end, though they're more likely to do so when cameras are focused on high-value targets and/or low traffic areas. Even so, cameras are easily defeated by low-tech means like hats, scarves and sunglasses, and at best provide only a small additional increment of safety when they're deployed.

The question now becomes: Is that increment worth the massive costs associated with installing and monitoring public CCTV surveillance? So far, most of the evidence says "no," but I welcome the introduction of new metrics to measure the question.

Hat tip to Bruce Schneier.

UPDATE: Noam Biale of the national ACLU emails to ask if I'd post a link to the organization's recent white paper on surveillance camera effectiveness, so here you go (pdf).

Bexar probation chief stands by UA methodology that accused innocent people

There's a certain surreal nature to today's effective WOAI-TV story on use of flawed urinalysis tests at the Bexar County adult probation department.

Bexar Probation Director Bill Fitzgerald says his department does not do confirmation analysis when a preliminary drug screen comes up positive because it would be too expensive, but confirmations are free under their contract. The head of the urinalysis lab and Fitzgerald both say they stand by methodology that falsely accused probationers of drug use this spring, but they're changing it in response to criticisms. Meanwhile, the whistleblower who first raised these problems filed a federal lawsuit last Thursday, adding to the bizarre circumstances surrounding the story. Reported WOAI's Brian Collister:

“I don't believe in locking people up for dirty urines," said Bill Fitzgerald, the Chief Probation Officer during an interview in his office with the Trouble Shooters.

He says that he expected a spike in positive test results.

That's because back in February they stopped doing the drug tests themselves and hired a company that does drug testing called Treatment Associates.

They use a small, thin, rectangular-shaped, one-time-use device that is dipped in the urine.

It's called a rapid test.

The manufacturer says it's used as a preliminary test.

If a single line appears in one of the boxes on the face of the device, you are positive for that class of drug, but not necessarily an illegal drug.

"There's one issue there on my part that the test is more sensitive. So I anticipated we would end up with more people showing up positive for urinalysis. This test is more sensitive than the ones we used previously," said Fitzgerald.

In fact, it’s sensitive enough that many prescription, and even some over-the counter, drugs will test positive.

Something as common as cold medicine could land a person back in jail.

And knowing all that, the county is still using this single test to determine someone's future.

Fitzgerald says the probationers have the right to ask for a confirmation test, yet he admits they're not told they have that option.

Brian Collister asked Fitzgerald during the interview, "Why not do confirmations as a standard procedure?" Fitzgerald responded saying, "That is more up to the D.A. and the judges than it is to me." Collister asked, "But why wouldn't you do a confirmation before sending it to them?” Fitzgerald responded saying "We do confirmations but we don't...we don't do them standard." Collister asked, "But why wouldn't you?" Fitzgerald responded, "Well financially...it's um. It would really hit our budget for one thing."

But that's not true.

We requested the contract Bexar County Adult Probation Department has with Treatment Associates before our interview with Fitzgerald but we didn't get it until July 8th, the day we aired the story and a week after our interview. According to the contract, the department can request a confirmation test at no additional charge.

But Fitzgerald said he sees no reason to change his current procedures.

Collister asked Fitzgerald, "Are you comfortable with the way things are set up now where you do not do confirmations as a standard part of your procedure?" Fitzgerald answered without hesitation "Yes."

And the President of Treatment Associates, Jeff Warner, said he's comfortable with it, too.

"The rate in the positive tests I stand by. I stand by our procedures. I stand by the products that have been used in those procedures," said Warner during an interview in the cramped room where they refrigerate all the urine that tested positive over the past few months.

We also noticed in the contract that Treatment Associates is supposed to keep the urine that tested positive for six months in case the department requests a confirmation test.

But Warner is only keeping them for 90 days.

Because of all the problems the county is now moving to a less sensitive test and trying find a better way to handle the cost of confirmations.

I'm not a lawyer, but maybe some of the barristers in the crowd can help me out. If Fitzgerald a) knows the preliminary tests are inaccurate, b) ignores opportunities for free confirmation tests, and c) insists he stands by a methodology that clearly accused innocent people, doesn't that begin to border on willful negligence?

Deputies oppose Waco jail privatization plans

In Waco, Mclennan County deputies are raising a fuss to oppose a privatization proposal that could shift most jailers' jobs to a private company. Reported the Tribune-Herald ("McLennan County Sheriff Officers Association leader calls on Sheriff to oppose jail privatization," July 8):

The president of the McLennan County Sheriff Officer’s Association is calling for Sheriff Larry Lynch to put an end this morning to further consideration of privatizing county jail facilities.

County commissioners are set today to open proposals from companies seeking to contract with the county to help ease the continuing jail overcrowding problem.

McLennan County Judge Jim Lewis said requests for proposals were sent out to 14 vendors nationwide, adding that he expects commissioners to defer a decision today on what are sure to be varied and complex bids.

Lewis said it could take county officials, including the county’s attorneys, Herb Bristow and Mike Dixon, three to four weeks to analyze the proposals.

Ken Witt, president of the 60-member sheriff officer’s association, sent an e-mail to Lynch on July 3 urging him to attend today’s meeting and put a halt to more discussions about turning the county’s incarceration duties over to a private company.

In a blog post elsewhere on the paper's website, reporter Tommy Witherspoon added these details:

Sgt. Ricky Armstrong of the McLennan County Sheriff’s Office said that staff at the private Community Education Centers, formerly Civigenics, is not trained to handle many situations that arise, such as riots or prisoners with extreme medical problems.

When CEC has a problem like an uprising, it calls on the county jail to help, Armstrong said.

Armstrong also said the private jail has maintenance issues that don’t get fixed, such as inmates stuffing paper to jam the locks of cell doors.

“It’s all about the money with private facilities,” Armstrong said.

At least 50 uniformed sheriff’s officers and Waco Police Department officers were at the meeting, as well as representatives of the Combined Law Enforcement Agencies of Texas.

McLennan's situation is especially frustrating because their sources of jail overcrowding for the most part are not insoluble, but local officials and the commissioners court for several years have put off less expensive or disruptive solutions.

See more coverage from Texas Prison Bidness, and also prior, related Grits coverage:

• What options besides jail building for Waco?
• A couple of Jillls with their eyes on a couple of bills

UPDATE: From the Waco Tribune Herald, July 9, "County only gets one bid to manage jail system."

Shortage of aftercare beds threatens to continue TDCJ's drug treatment bottlenecks

Although the Texas Legislature (led by Sen. John Whitmire and Rep. Jerry Madden) spearheaded a massive expansion of treatment options and incarceration alternatives last year for prisoners and parolees, a shortage of Transitional Treatment Center (TTC) beds threatens to undermine Texas' expanded programs aimed at mitigating drug addiction.

While the Texas Department of Criminal Justice (TDCJ) has made progress, the majority of new treatment beds authorized by the Legislature have yet to come online according to information provided to Grits by Jason Clark, a TDCJ spokesperson. Here's the status of the various treatment beds authorized and funded last year (adapted from an email):

Intermediate Sanctions Facilities (ISF) -1400 beds allotted be legislature, 250 are under contract. The remaining 1150 are out on a RFP. The responses are due back July 14th for those beds that are available right now (fast track). The RFP for those beds that have to be constructed (slow track) are due back November 14th.

Substance Abuse Felony Punishment (SAFP) -1500 allotted
588 "fast track" beds are already under contract. The remaining 912 are out on RFP due back November 14th.

DWI-500 allotted
These beds are online (see the Longview News Journal coverage of the new facility)

In-Prison Therapeutic Community (IPTC) treatment slots-1000 allotted
These beds are online

Transitional Treatment Center (TTC) -1250 allotted
We have gone through with the first round of RFP and are now on the second round. The agency is working with existing vendors to vendors, CSCD's, and Department of State Health Services to increase available capacity.

So 2,338 of the beds are already online out of 5,650 total, or 41%. I was a little surprised at these numbers since TDCJ chief Brad Livingston told the Legislature this spring that most of the beds were already contracted.

Notably, the TTC beds are the only ones now on their second RFP. Though Clark wouldn't confirm it, I'm told by sources in local probation departments that's because no one submitted a proposal in response to the request. (We won't know until November whether that will be the case with other categories of beds not yet built.) All the treatment beds proposed (except possibly for TTC) will be operated by private contractors.

There's a fear among some local probation departments that by "working with ... CSCDs," the state means they hope to dump aftercare duties on county probation departments instead of contracting with vendors or providing the services themselves. Right now such services fall under the auspices of the TDCJ's parole division.

What's more, the TTC bed shortfall potentially thwarts larger treatment and re-entry goals because they're part of a three phase protocol designed for drug-addicted offenders - in fact, the same ones occupying the SAFP and IPTC beds, both of whom enter TTC facilities when their initial program is complete. From TDCJ's website:

The program consists of Phase I (Orientation), a comprehensive assessment and orientation of the Therapeutic Community; Phase II (Main Treatment), which includes education, skills training, offender lifestyle confrontation, family dynamics, and peer support groups; and Phase III (Re-Entry), the education of offenders in the development of social skills and the recognition of the triggers of relapse. Upon completion of the SAFPF program, offenders are placed in a community residential facility/Transitional Treatment Center for three months, followed by outpatient treatment for up to twelve additional months. The aftercare phase administers a diverse range of therapeutic, residential, outpatient, and resource programs. The Special Needs program provides educational components that address Axis I mental disorders as well as personality disorders, medication regimentation, and the interaction of disorders with substances of abuse.

TDCJ's website describes how the system is supposed to work in an ideal world:

Transitional Treatment Center (TTC) - is targeted for those releasees who have participated in the In-Prison Therapeutic Community (IPTC) or Substance Abuse Felony Punishment Facility (SAFP) programs. The TTC is the aftercare component of the treatment program for releasees from the IPTC and SAFP facilities, and lasts for three months. An additional twelve months of outpatient care follows. Specially trained parole officers supervise offenders.

These treatment beds as a package were the centerpiece of prison diversion legislation enacted in 2007 aimed at reducing or ending waiting lists for treatment programs required of certain offenders before release. But the various facilities were designed to be interdependent: If Texas expands SAFP and IPTC capacity but fails to increase the number of TTC beds, it invites bottlenecks and release delays that could continue to fill up scarce prison beds, disrupt rehabilitation and stymie re-entry efforts.

TDCJ deserves credit for getting 40% of the beds rolled out within a year after they were authorized, but those beds basically represent all the existing capacity they could easily sop up. Most additional beds will require new construction - or in the case of TTC beds, possibly a new delivery model - meaning it could easily be another couple of years before the treatment package authorized by the Texas Legislature in 2007 becomes fully available.

TV station: False UA positives tolerated in Bexar "because the county wants to save a few bucks."

A San Antonio TV station is preparing an investigative report following up on allegations that the contractor performing urinalysis for the Bexar County adult probation department is using methodologies that produce false positives. From WOAI-TV:

Nobody likes being accused of something they didn't do. But many probationers here in Bexar County say that is exactly what is happening to them. And some are winding up in jail.

News 4 Trouble Shooter Brian Collister is probing problems with the Probation department's drug tests.

Since the county's probation department switched to a new drug testing lab earlier this year, the number of positive drug tests by probationers has skyrocketed.

But many of them say they are clean.

Lani Bennett tested positive for drugs while on probation. She was shocked when she was arrested at the drivers license office because of a warrant for a dirty drug test.

"They didn't give me any warning or anything," says Lani. "I'm (at) DPS trying to get a status of my license cause I'm trying to change over insurances for my car and I'm getting taken out in handcuffs."

She later got a hair test that shows she was clean.

"People are capable of change. I have the legal paperwork to prove that I have changed and I did not use."

And she is not alone.

In fact, a News 4 Trouble Shooters investigation uncovered a flaw in the way the county is conducting these tests. Turns out people go to jail because the county wants to save a few bucks.

The full story airs tonight, and continues a rocky recent stretch for the Bexar adult probation department. Director Bill Fitzgerald fired the whistleblower who first identified problems with the drug tests, but chose to retain the contractor. Then last week, Fitzgerald fired his second in command without giving him or the public a reason.

After beginning a consulting stint recently working for the Innocence Project of Texas, it's struck me that frequently "innocence" issues in the public lexicon are defined pretty narrowly - for the most part limited to murder or sexual assault cases involving DNA exonerations.

But "innocence" is also an issue whenever a probationer is sent to jail because because of a false positive on a urinalysis test, or when errors in breathalyzer technology falsely accuse someone of driving drunk. Faulty forensics aren't just limited to arson or ballistics: High error rates are tolerated in a variety of forensic disciplines.

While some high-profile exonerations have involved alleged police misconduct or prosecutors withholding Brady material, much more frequently innocent people are punished as a result of reliance on unreliable investigative methods and sloppy forensics. From the perspective of the person wrongly accused, however, the motives of authorities promoting false accusations matter very little.

Police lied, falsified documents during interrogation that led to teen's untimely death

Lying to suspects during police interrogations is a common practice that courts have long supported, but the tactic carries with it serious risks that are frequently understated or overlooked.

Having focused recently on police interrogations practices that lead to false confessions and other negative outcomes, I'd be remiss not to point readers to an article from the LA Times about a 16-year old girl who was murdered because police falsely told a gangbanger/murderer during interrogation that she'd picked him out of a lineup ("Interrogation, then revenge," July 2):

When [detectives] Pinner and Rodriguez stepped into the interrogation room with Ledesma [the suspect], they had little real information to work with.

So they made up what they needed.

The photo six-pack was a complete fake. Rodriguez had doctored it, circling Ledesma's photo and forging Puebla's statement and signature.

The "ruse," as Pinner would later call it in court, was a legal move. Federal and state courts throughout the country have repeatedly upheld the right of police officers to lie to people they have in custody.

Interrogation rooms, experts say, are freewheeling places. Detectives lie frequently, typically telling a suspect that they have DNA evidence or video footage or witnesses. Sometimes they go the extra step of making up documents to bolster their lies.

So if police hadn't lied about Ledesma's girlfriend allegedly ratting him out - even phonying up official documents and forging her initials - she'd almost certainly still be alive today. That's enough reason right there for police to avoid telling lies in the interrogation room that misrepresent the actions of others. They're not the ones who must pay the ultimate price if some thug decides to murder the supposed witness against them. In this case, the sixteen year old detectives falsely accused had actually refused to substantially cooperate with police.

Ironically, reports the Times, in the investigation of the girl's murder LA police initially identified and accused the wrong suspect, once again using phony documentation to lie to him during the interrogation:

Before federal prosecutors and the LAPD sorted out Puebla's murder, however, Pinner and Rodriguez had arrested an innocent man in connection with Puebla's slaying. Based on bad information from sources, the detectives pinned the slaying on Juan Catalan -- Mario Catalan's brother. Juan Catalan sat in jail for five months awaiting trial until his lawyer turned up video footage showing Catalan was at a Dodgers game at the time of the shooting. A judge threw out the case, and Catalan was awarded $320,000 in a wrongful-arrest suit.

The day the detectives arrested Juan Catalan, they thought they had the right man. They brought him into an interview room in the same North Hollywood station where they had grilled Ledesma nine months before. Once again they switched on a recorder. Catalan begged the detectives to believe him, that he had nothing to do with Puebla's death. He asked to take a lie-detector test.

But Pinner and Rodriguez weren't having any of it. Pinner told Catalan that people had seen him shoot the girl. He pushed three six-packs in front of him. His picture was circled. Witnesses had signed their names.

They were all fake. But Catalan, of course, didn't know that.

"You see," Rodriguez told Catalan, "the pictures don't lie."

Well, perhaps the pictures don't. The problem is that police officers do.

These kind of coercive, manipulative tactics result directly from police training and the common interrogation practices that have (questionably) received the courts' seal of approval. Police look for deception cues during the early portion of the interrogation, then ramp up more coercive or mendacious tactics once they decide s suspect is being deceptive. But this case shows the enormous downsides to that tactic, potentially endangering or falsely accusing innocent people. Perhaps it's time to reconsider the practice altogether.

(Hat tip to Rebecca)

TCJC seeks volunteers

If you live in Austin and want to participate on the front lines to help reform the criminal justice system, you couldn't do much better than to hook up with the Texas Criminal Justice Coalition, which is looking for significant volunteer help in a variety of capacities this summer and fall:

The Texas Criminal Justice Coalition, a non-profit policy reform and advocacy organization, has volunteer opportunities open to individuals having an interest in the criminal justice system and a passion for social justice. TCJC is currently looking to fill the following volunteer/internship positions for the summer and fall: Inmate Correspondence Administrator, Field Research Intern, Research Intern, and Administrative Intern.

Interested applicants should contact Jazmin at jacuna@criminaljusticecoalition.org or 512-441-8123 ext. 101, for more information.

Give 'em a ring if you're interested.

Texas Lawyer: Dallas Public Defender lacked buffer from political winds

Texas Lawyer published a detailed adumbration of the imbroglio surrounding allegedly politicized firings at the Dallas Public Defender's Office beginning with the chief, Brad Lollar. Those interested should go read the whole thing, but especially interesting to me were suggestions offered toward the end about how other counties might structure PD offices to avoid the same problems with meddling county commissioners:

Lollar and Richard Goemann, director of defender legal services for the National Legal Aid and Defender Association, have suggestions for Harris County if it sets up a PD's office.

The problems at the Dallas PD's office "are not unique to Texas," Goemann says. "They are common around the country."

The best way to avoid such political problems is the creation of an independent board to oversee a PD's office and shield it from the governmental body that controls the PD's office budget, he says.

"The idea is to create a diverse body whose allegiance is to the clients of the office," Goemann says.

Lollar says Harris County — Texas' largest — should "have a clear arrangement with the judges that once the PDs are in there, you're going to use them and what cases are they going to get. And there should be an advisory board that stands between the commissioners court and the Public Defender's Office. It could be representatives between the criminal bar and the district judges and the county judges. And it should act as a buffer to politics."

Bexar probation director fires #2 man amid contention with employees

Bexar County adult probation director Bill Fitzgerald gave his #2 man Paul Kosierowski no reason for his termination when he fired him last week, according to sources who've spoken to the former Deputy Director. He was simply told he was an at-will employee and it was time to pack up his things.

According to one source, the move came "the day after the judges [who control the department as its governing board] gave the department heads a sizable raise."

The move also coincided with the filing of yet another federal lawsuit against Fitzgerald over the firing of whistleblower Sheri Simonelli who'd gone public with evidence the department's urinalysis vendor was tolerating false positives.

Fitzgerald had been suspicious of Kosierowski according to Bexar County sources ever since Fitzgerald reacted to efforts to organize a union by demanding retention interviews of every single employee, including his #2 man.

Now that Fitzgerald has ousted his top lieutenant (who is much more highly regarded both within the department and in Texas probation circles than the director himself), it's hard to imagine Bexar County will be able to hire top talent to manage the department's day to day operations. And given his relations with staff, for Fitzgerald himself to try to do so would court disaster.

UPDATE: A reader provided the full text of the email Fitzgerald sent out to local judges and state probation officials on July 2 announcing Kosierowski's firing: "Effective this date Deputy Chief Paul Kosierowski is no longer employed by Bexar County CSCD."

Deception detection is weak spot in security, police interrogation techniques

How good are police at judging when suspects lie? Indeed, how good is anybody at detecting deception by other people?

Having written yesterday about false confessions, I sat up and took notice when (via Bruce Schneier) I saw this post from Ross Anderson at Light Blue Touch Paper, liveblogging from the Interdisciplinary Workshop on Security and Human Behavior at MIT last month on problems related to deception and computer security. (Here are photos from the event if you weren't on the exclusive invite list.) According to Anderson:

The first session, on deception, was fascinating. It emphasised the huge range of problems, from detecting deception in interpersonal contexts such as interrogation through the effects of context and misdirection to how we might provide better trust signals to computer users. ...

The first session brought home what a huge subject deception is. The first speaker, Paul Ekman, pretty well established the study of how people deceive each other in face-to-face contexts, and how we detect deception. We observe a social hot spot - a discrepancy or an implausible statement, say - and this prompts us to look for an emotional leakage, via something like a microfacial expression.

However the error rate can be high, as the hot spot can come from a context switch and the emotion being leaked could be (say) anger at being interrogated rather than fear of being caught in a lie. Othello’s error was to read Desdemona’s fear correctly but to misunderstand its cause. ...

In particular - and Paul Ekman agreed to this in the panel discussion - the best way to tell a lie is to deceive yourself into believing it. This should get a lot more research. Charlatans in particular - such as spirit mediums who pretend to talk to the dead - operate by inducing self-deception.

That last observation identifies a key flaw in using behavioral cues for lie detection: Probably more people people deceive themselves into believing lies of all shapes, colors, sizes and motivations - particularly when justifying their own actions faced with accusations - than the rationalists among us would like to believe.

There's little doubt that detecting deception or mitigating the harm it causes (e.g., fraud) constitutes a major part of security of all types, not just computer security. The comments about deception, in particular, apply directly to day to day crime and punishment topics, not the least of which is the subject of police eliciting false confessions or identifying them after the fact.

A core method of modern American police interrogation relies on questioners judging verbal and nonverbal cues to determine if the interrogation subject is being deceptive, then developing an interrogation strategy grounded in that hypothesis. The most coercive tactics are reserved for offenders judged deceptive by police.

The problem is just as Anderson identified: The error rate is high, risking the same mistake committed by Othello when he falsely accused Desdemona. According to the (highly recommended) recent book by Richard Leo, Police Interrogations and American Justice (pp. 98-99):

Numerous controlled studies have shown that people are not good intuitive judges of truth and deception, typically performing at no better than chance levels of accuracy. Controlled studies have also shown that even investigators and other supposed experts who routinely evaluate deceptive behavior are highly prone to error. Moreover, Kassin and Fong have shown that police interrogators and others specifically trained in the [Behavioral Analysis Interview technique taught by John Reid and Associates] not only fail to discriminate accurately between true and false statements much of th time, but also that behavior analysis training actually lowers the ability of police interrogators to discriminate accurately between true and false denials. Further, such training inflates their confidence in their judgments. (citations omitted)

Assuming police can accurately judge lie detection leads directly to false accusations and confessions. That realization led law enforcement in some European countries to switch to an information gathering rather than an inquisitorial approach to interrogations over the last couple of decades, in addition to recording the entire process.

If the total rate of wrongful convictions turns out to fall on the higher end of the range of estimates, it will be in large part because police are little better at judging deception or its causes than Othello when he murdered poor Desdemona, protesting her innocence to the end.

BLOGVERSATION: Scott Greenfield responds that it's not just police who can't accurately tell when someone is lying, but also judges and jurors.

Schneier: Now's the time to limit CCTV waste and abuse

At the tail end of an excellent article in the UK Guardian on the relative ineffectiveness of surveillance cameras in public spaces ("CCTV doesn't keep us safe, yet the cameras are everywhere," June 26), security consultant Bruce Schneier makes a fascinating (to me) observation about the particular moment we find ourselves inhabiting regarding surveillance camera technology.

We live in a unique time in our society: the cameras are everywhere, and we can still see them. Ten years ago, cameras were much rarer than they are today. And in 10 years, they'll be so small you won't even notice them. Already, companies like L-1 Security Solutions are developing police-state CCTV surveillance technologies like facial recognition for China, technology that will find their way into countries like the UK. The time to address appropriate limits on this technology is before the cameras fade from notice.

Schneier's point reminds me of an article I saw not long ago in Scientific American which argued that humans are only able to identify the so-called "Big Bang" as the origin of the universe because we're still relatively close to its formation (in chronological and cosmological terms) and can judge the relative motion of heavenly bodies against one another to determine their likely common origin. Someone observing the universe 100 billion years from now, the writer observed, would see stars and galaxies much more spread out, moving more slowly and utterly disassociated with their origins compared to today.

In other words, according to this view, scientists can only observe the Big Bang because of the moment in time we're in, and applying the scientific method from a vantage point in the distant future would generate a different result.

Schneier says we're in a similar circumstance regarding surveillance cameras, occupying a unique moment in time when cameras are both increasingly ubiquitous and still visible to the human eye. It's an astute observation from one of the United States' most important thinkers on security.

There's another reason now's a good time to have a debate about the effectiveness of surveillance cameras, particularly in Britain: This is the first period in which widespread surveillance has been in use long enough to measure the impact on crime, which turns out to be negligible. According to Scotland Yard, "Massive investment in CCTV cameras to prevent crime in the UK has failed to have a significant impact, despite billions of pounds spent on the new technology." Writes Schneier:

the question really isn't whether cameras reduce crime; the question is whether they're worth it. And given their cost (£500 m in the past 10 years), their limited effectiveness, the potential for abuse (spying on naked women in their own homes, sharing nude images, selling best-of videos, and even spying on national politicians) and their Orwellian effects on privacy and civil liberties, most of the time they're not. The funds spent on CCTV cameras would be far better spent on hiring experienced police officers.

In Houston, Austin and elsewhere police have invested heavily in surveillance cameras for public spaces, though by no means to the ubiquitous extent one finds in London. So it's worth American police officials looking across the pond to the Big Smoke for predictions about how that experiment will pan out. Early money is riding on lots of police resources wasted with little if any crime reduction to show for it.

See prior related Grits coverage:

• Surveillance Cameras and Crime
• Best way to terminate surveillance society is through cost-benefit analysis
• Does camera surveillance in public areas reduce crime? Austin chief think so
• Over the Top: Houston chief wants cameras in apartments, private homes
• Cameras wrong response to London bombings
• Why surveillance cameras don't reduce crime
• Safer with surveillance cameras, or just more exposed?
• British Home Office: Surveillance cameras do not stop crime
• Texas Senate Boosts Big Brother