Delaying the truth in Charles Hood case harms pro-death penalty cause

If you don't think judges cover up for one another's misdeeds, consider the case of Charles Dean Hood, a convicted murderer who's scheduled for execution next month despite evidence that the judge and the Collin County DA engaged in an extramarital affair during his 1990 trial. Judge Verna Sue Holland went on to serve on the Texas Court of Criminal Appeals, where eight of her former colleagues this summer ruled that Hood could not force her to answer for the alleged misconduct. Her ex-husband, now deceased, and a prosecutor who worked there at the time have said the pair were sleeping together.

So Hood's lawyers pursued a novel civil suit to get to the truth, but now another Collin County judge has set the hearing for two days after Hood's scheduled execution.

Meanwhile, Houston Chronicle columnist Rick Casey notes that "the two people who have absolute knowledge of the truth remain silent," writing that:

Three years ago Judge Holland told reporter Alan Berlow, whose piece on the alleged affair appeared on Salon.com, that it would be "unethical to comment" on a pending case.

That's absurd.

Houston lawyer Lillian Hardwick, who co-authored the Handbook of Texas Lawer and Judicial Ethics, says she can think of no ethical reason Holland can't come clean.

"In fact, the Texas Code suggests just the opposite, as applied to what she did on the bench and off the bench, while a judge," she said.

This is an instance where politicized pandering over the death penalty has prevented an honest rendering of the case. Those who most ardently support the death penalty seem to think that if Hood is executed, they "win," so they want it to happen without delay.

That's a foolish stance that's doomed to backfire. Holland's friends on the bench can't protect her indefinitely from having these misconduct allegations publicly aired. As I wrote in the comments on Friday, "this game of chicken is bigger than Charles Hood. Now we know the affair is still likely to be exposed even if it happens posthumously on behalf of Hood's estate.

"So the question becomes: Do Holland and [former DA Tom O'Connell] want to wait until the deed is done to reveal a conflict which would have easily granted Charles Hood a mistrial if true? My guess is they'd be disbarred over it. If the affair occurred, and if it didn't one can't help but believe they'd deny it, the pair will be doubly disgraced, both as adulterers and unethical barristers. Even more importantly in the big picture, they'll have done more to harm the cause of pro-death penalty advocates than any abolitionist ever could.

"One other aside: A lot of people, not just Charles Hood, got convicted in her court during the six-year period the DA was allegedly bedding the judge. These allegations open up many, many cans of worms."

Pre-Gustav prisoner evacuations at TYC, TDCJ

The Austin Statesman's Mike Ward reported three hours ago that:

Texas Youth Commission officials early today started removing incarcerated youths from the Al Price youth lockup in Beaumont, and state prison officials said they plan to start evacuating adult felons from two Beaumont prisons early Saturday.

On moving the prisoners, despite the hassle and expense, I say better safe than sorry if there's a chance of a Category 4 hurricane touching down there. Here's a picture from a state jail unit in Beaumont after the much-smaller Hurricane Rita in 2005:


Sometimes the weather can provide interesting opportunities to learn something unexpected about the system. After Hurricane Rita damaged several prisons and jails, a couple of Texas counties for a while found themselves in the position of being unable to arrest low-level offenders for several months because of weather-induced overcrowding. In Gregg County, the jail actually had extra space but was renting it out for immigration detention, so they chose to turn away arrestees instead. For the most part, officers gave out citations instead instead of processing defendants through the jail.

Because these counties went several months with radically reduced numbers of arrests, I suggested at the time that their crime data should be examined to determine if there was a resulting increase or decrease; that never happened, though a Gregg County commissioner later told me he didn't think there'd been a noticeable difference, which was also the conclusion reached by officials in Chambers County.

While one certainly hopes there's no damage necessitating similar outcomes because of Gustav, I'd still like to see some neutral and credible researcher go back and analyze crime data for those counties during the months after Hurricane Rita. I'd like to know whether their inability to jail low-level offenders tangibly, measurably harmed public safety.

RELATED: Texas Prison Bidness has been raising questions about treatment of immigration detainees held by private prison companies during the last round of evacuations in the run-up to Hurricane Dolly.

UPDATE: Judge recused who ordered search of attorney's files

Via Texas Lawyer's Tex Parte blog , we learn that "Collin County District Judge Mark Rusch has been recused from hearing a capital murder case" in which he ordered police to search a defense attorney's files. (See prior Grits coverage.) Bill Baumbach has more at the Collin County Observer, which profiles this case along with the Charles Dean Hood fiasco, in which a Collin County judge and prosecutor who allegedly had an affair during Hood's capital murder trial want to put off answering questions about it until after he's executed.

It can't be stated often enough: Collin County justice is really something!

Correcting forensic science errors

From the Justice Project this week comes another in their excellent series of policy papers on the causes of wrongful convictions in DNA exoneration cases, this time focused on flawed or biased forensic science. From their announcement:

This week, The Justice Project is releasing Improving the Practice and Use of Forensic Science: A Policy Review. This policy review provides an overview of the problems that plague forensic science, offers solutions to these problems, profiles cases of injustice, highlights states with good laws and policies related to forensic science, and includes a model policy.

Learn more about improving forensic science here.

As TJP President John Terzano wrote, “While forensic laboratories have yielded critical evidence in countless cases, preventable error has subverted justice, convicted the innocent, and jeopardized public safety. Law enforcement, prosecutors, defense attorneys, and the public at large all have a vested interest in making sure reforms are implemented to reduce the risk of mistakes and to elevate the quality and objectivity of forensic evidence and testimony.”

Read Terzano’s blog post here.

Research on the exonerations of innocent people has identified many of the primary causes of wrongful convictions. Based on these findings, The Justice Project has constructed a national agenda for reform designed to eliminate common, preventable errors that undermine the fairness and accuracy of our criminal justice system. Providing better oversight and practices in forensic science is one of TJP’s eight initiatives for criminal justice reform.

Learn more about all eight initiatives here.

The report features the story of exonerated Texan Brandon Moon both on the cover and as a key case study. This is an excellent and informative series which I'd strongly recommend to those interested in the topics they've covered. Here are the policy reviews they've addressed so far:

• Eyewitness Identification: A Policy Review
• Electronic Recording of Custodial Interrogations: A Policy Review
• Jailhouse Snitch Testimony: A Policy Review
• Expanded Discovery in Criminal Cases: A Policy Review
• Increasing Access to Post-Conviction DNA Testing: A Policy Review
• Improving the Practice and Use of Forensic Science: A Policy Review
  

Snitches in the News: Informant use at root of many scandals

The reminder this morning about UT-Austin police spying on student groups led me to think about a topic I've strayed from recently on Grits - confidential informants. Several recent stories (most of them outside of Texas, to be sure) demonstrate that it would be easy to devote an entire blog to the subject of informants and the risks their use poses to police integrity and public safety. Here are some recent examples:

• The ringleader of the nation's biggest identity theft case turned out to be someone working for the US Secret Service as an snitch.

• A grand jury in Florida issued a 6-page rebuke of local police and the DEA for a botched drug buy in which an informant "in over her head" was murdered while 19 officers from different agencies were supposed to be watching her.

• A drug task force in Tennessee arrested two innocent people on the word of a snitch who has since disappeared.

• At the Dallas News we get more background on an informant who was protected by a Dallas Sheriff's detective while he helped plan and execute an armed robbery in Waxahachie.

• The lefty journal In These Times published a feature on exonerees from death row who were convicted based on faulty snitch testimony. The story mentioned that "Illinois currently mandates corroboration in capital cases, and courts in Nebraska and Oklahoma have required corroboration for jailhouse snitches. Texas, meanwhile, has a different requirement, not for jailhouse snitches, but for undercover drug operatives working for the police." The Texas bill mentioned was passed in reaction to the infamous Tulia and Hearne cases, but regular readers know I think the corroboration requirement for informants should be expanded.

The In These Times reporter quoted one of Grits' favorite thinkers on the topic, Loyola (CA) law professor Alexandra Natapoff, who offered up this gem:

"The government's use of criminal informants is largely secretive, unregulated and unaccountable," she says. "This lack of oversight and quality control leads to wrongful convictions, more crime, disrespect for the law and sometimes even official corruption."

She continues: "If the criminal system can't get homicide cases right, then it's very unlikely that we're getting other things right."

RELATED: See also this report (pdf) published last year by The Justice Project on the topic of wrongful convictions based on jailhouse snitches, including recommendations for reform.

Chief who approved undercover surveillance of UT-Austin political groups called to account by Georgetown student paper

Jeffrey Van Slyke, the former University of Texas Police Department chief who authorized undercover snooping on UT-Austin student groups, finds himself facing hard questions from a student newspaper in Washington D.C. about his policing record at UT in this high-impact piece from the Georgetown Voice.

Of the many regrettable UTPD episodes recounted in the story, perhaps the most controversial in an academic setting was Van Slyke's admitted, repeated use of undercover officers and informants at UT-Austin to infiltrate anti-war and pro-choice student groups:

On Monday, Van Slyke would not rule out using student informants at Georgetown.

“What I’ve done on other campuses doesn’t necessarily mean that’s going to happen here, and my focus is on what’s best for Georgetown University,” he said.

Professor Tina Fryling, the chair of Mercyhurst College’s Criminal Justice Department and a specialist in criminal justice ethics, said she did not know how often informants and officers are used to report on campus groups.

“I would say it shouldn’t be common, because the whole point of having a college atmosphere is for people to explore their beliefs, their ideas, do whatever they need to do within a group,” she said.

Georgetown President John DeGioia said yesterday that he only approved of the use of student informants and infiltration in rare circumstances.

“I could probably count on one finger in 20 years of knowledge when we’ve been comfortable with having somebody engage in a way that would not be rather transparent,” he said. He added that he was not familiar with Van Slyke’s use of informants.

If nobody in the Georgetown University administration knew about UTPD's political use of undercover snooping under Van Slyke's watch, that means nobody bothered to perform any due diligence background check on the new chief. The incidents were nationally publicized; the first time happened within the month after 9/11, although the practice continued for years afterward. The Voice story shows a simple check of The Daily Texan archives would have revealed virtually all the controversies mentioned.

The student paper also contains an especially interesting passage based on Van Slyke's recently completed Ph.D. dissertation, adding a coda to the incident that's arguably the biggest public black mark on his stint at UTPD:

Van Slyke received his PhD in Education from UT last fall after successfully defending his dissertation about law enforcement ethics. In the dissertation, he describes unethical behavior he witnessed in university security forces: a cop plays Russian roulette with his revolver in front of colleagues, an officer and her boyfriend sneak into her boss’s office to “be tutored in biology,” and a policeman solicits prostitutes from his cruiser.

The dissertation also describes an incident of oral sex between a student and a campus police officer. In Van Slyke’s dissertation, an officer discovered a woman after her car hit a stop sign.

“As the officer assists the female student in removing her vehicle from the curb, he detects an odor of alcohol and determines that she is intoxicated. The officer also observes that the female student is scantly dressed and not wearing under garments,” the dissertation reads.

According to the dissertation, the woman then “engage[d] in oral sex with the officer” in a nearby parking garage. The officer eventually resigned after an internal investigation and was arrested for sexual assault, according to the dissertation.

The situation described in the dissertation bears similarities to an incident that occurred at UT in 2001, in which a UT student claimed that she was forced to perform oral sex on UTPD officer Sellers Bailey. In court, it was revealed that her blood-alcohol content at the time was 0.17. The officer was fired from UTPD (Daily Texan, May 2, 2003) and was eventually charged with sexual assault. He was later acquitted, in part because of his victim’s high BAC.

The victim also filed a lawsuit against Van Slyke and UT President Larry Faulkner, saying they had ignored warning signs about the officer, including a sexual harassment claim filed against Bailey by a female guard. The lawsuit against Van Slyke and Faulkner was settled out of court in 2004 (Daily Texan, June 18, 2004).

The story was accompanied with an editorial criticizing Van Slyke (who began his new job as Georgetown's public safety chief on June 1 after most students were gone for the summer) for refusing to discuss his UT-Austin record or rule out using informants to infiltrate student groups at Georgetown.

Seeing these incidents compiled all together reminds this alum that, at the time these scandals occurred, the UT-Austin administration circled the wagons around Chief Van Slyke instead of reining him in, tacitly allowing tactics like undercover surveillance of political groups. Perhaps with the help of the student press, Georgetown administrators will be more aggressive holding Van Slyke's feet to the fire.

Education and low crime rates in Barbados

Having lately discussed a new law enforcement initiative on early education and crime prevention and the relationship between crime rates and the ratio of security spending vs. education in different countries, I was interested to see this note from the London Telegraph about Barbados, which reportedly enjoys the lowest crime rate of all the Caribbean islands. The story begins with the typical tough on crime mantras:

"Police here in Barbados are very, very strict. Wrongdoers get no mercy!” chortles the minibus driver as we cross the island from airport to hotel. “Prison here is kill or cure. Usually kills you, ha ha! But if you do get out you won’t want to go back in again! And that’s the way we like it!”

Fair enough. But there's another, perhaps more significant cause for the low crime rate:

“What keeps Barbados law-abiding? Education, education, education,” says Claire Jordan, an earnest young hotel sales manager over breakfast by the beach. “The first thing our government did after independence in 1966 was to introduce free schooling. Anyone who gets straight As at A-level can go to university anywhere in the world and have the government pay for everything.”

She herself went to Heriot-Watt in Edinburgh, then to an école supérieure in France, while her brother went to Harvard. “So everyone’s educated, employment rates are high — and in general that means very little poverty and very low crime. What crime does exist is often committed by other islanders coming here under the new policy in the Caribbean that lets anyone move anywhere, as in the EU.”

Score another point for education in the education vs. security spending debate.

Granted, this is a travel story. The writer got all her information from taxi drivers and hotel clerks on her way to and from the beach. What's more, Barbados is a tiny place - an island 14 miles wide and 21 miles long with just more than a quarter-million people; the approach would be quite expensive to scale up to an American context.

Still, one imagines the intense focus on subsidized education has a lot to do with the low crime rate. You've gotta admit, that's a pretty compelling reason for kids to focus on their education instead of running the streets.

Neighboring Trinidad and Tobago were already on my personal list of places I'd like to visit; perhaps Barbados will get added to the list.

New TYC executive director hired

According to an email sent out by the conservator today to all Texas Youth Commission staff, TYC has finally hired a permanent executive director. Wrote Richard Nedelkoff:

I am pleased that I am able to tell you today that I have hired Cherie Townsend as the agency’s new Executive Director. While she officially comes on board October 1, Cherie will be attending some agency functions prior to that time.

Cherie brings a wealth of background and expertise in juvenile justice, having established a national reputation as an agent of change. I’m pleased someone of her caliber is joining us at TYC to help lead the agency forward, and I feel very strongly that she will provide the agency with the leadership needed to complete our reform efforts.

Cherie’s experience in juvenile justice spans more than three decades, including 18 years in previous positions at TYC. Most recently she served as director of the Clark County Juvenile Court Services in Las Vegas, NV where she was responsible for the leadership, planning, management and delivery of court services in one of the fastest growing counties in the United States. Prior to that, she served as director of Juvenile Court Services for the Superior Court of Arizona’s Juvenile Court Center in Maricopa County.

During Cherie’s 18-year tenure at TYC, she served as director of community services where she developed and updated programs to meet the changing needs of youth and families and to improve results and better manage at-risk youth in communities.

I know nothing about Ms. Townsend, but before her gig in Nevada, according to this brief bio:

Ms. Townsend served as Director of Juvenile Court Services in Maricopa County, Arizona. She has worked for the Texas Youth Commission in various capacities, including Director of Community Services. She also served as Director of Victim-Witness Services for the Travis County District Attorney in Texas. Ms. Townsend has earned a Master of Public Administration degree from Southern Methodist University and a Master of Business Administration degree from the University of Texas.

Her past experience with TYC may help some; certainly you wouldn't want someone with no Texas experience at all leading the agency through the Sunset process at the lege next year. But otherwise it's hard to say from this information whether they've selected the right long-term leader for the troubled agency. I hope so. Time will tell.

UPDATE: See TYC's press release on the announcement.

Why the scare tactics? Austin PD hyping stranger danger

Living in Austin, I find it unfortunate when our local police department uses scare tactics and hype instead of being honest with the public. This practice did not begin with new Chief Art Acevedo, but it's continuing under his watch to judge by a new video they're promoting on APD's website titled, simply, "Stranger Danger." It's about exactly what you might expect - hyping parental fears that a stranger might snatch their child and giving parents and kids all sorts of paranoid advice, some of which I think is flat out wrong. There's an intangible but important harm done by teaching kids to fear other people irrationally and IMO this video crosses that line.

In reality, how frequent are "stranger danger" type abductions? According to a 2002 national study by USDOJ, "an estimated 115 children and youth were the victims of a stereotypical kidnapping in the study year" out of a total of "58,200 nonfamily abduction victims." That's why "the National Center for Missing & Exploited Children (NCMEC) has never supported the “stranger-danger” message, especially because experience has shown us that most children are actually taken by someone they know or are familiar with."

So where's the video telling kids to beware molestation or abduction by their parents or close family friends?

At 115 "stereotypical" abductions per year (the number ranges, said DOJ, between 60 and 170), that's a rate of roughly .14 per 100,000 kids. Compared to other childhood risks, that's truly de minimus. By contrast, youth are 15 times as likely to commit suicide (2.1 per 100,000). This blogger takes the statistical analysis even further:

The odds of dying in a plane crash are 1 in 310,000. The odds of being abducted by a stranger? 1 in 610,000! Wow, that means that a child is more likely to die in a plane crash than get kidnapped by a stranger. That isn't the coolest thing though. ... The odds of being struck by lightning are 1 in 240,000! That's right, do the math ... A child is 2 and a half times more likely to get hit by lightening than to get taken by a stranger!

To listen to the video put out by APD, you'd think kids were getting snatched off the streets by strangers in Austin at all hours of the day and night. That's a misrepresentation and it provides no obvious benefit to public safety (though perhaps for public safety budgets) for police to scare the public by promoting it.

Does jail work as an intermediate sanction?

With so many jurisdictions now using some version of so-called problem solving courts, the question arises: What are the best intermediate sanctions to use for probationers as opposed to revoking them to prison? In particular, are short jail stints the answer?

Recently Marc Levin of the Texas Public Policy Foundation urged the House Corrections Committee to follow the lead of Hawaii's HOPE program, which routinely uses jail time to punish minor infractions, reportedly with great success.

By contrast, Doc Berman the other day wrote about a study out of Multinomah County in Oregon that reached the opposite conclusion, published this month in a new Vera Institute report (pdf): "The use of jail as an intermediate sanction was correlated with higher rates of recidivism, a relationship that should be examined more closely." I reacted to this news in the comments thusly:

With a massive shift occurring toward use of so-called problem solving courts, it's really important to identify what are appropriate intermediate sanctions. If it's jail, great - everybody's got one already. But if the Oregon numbers are right and using jails that way boosts recidivism, there needs to be more study and empirical testing about which intermediate sanctions DO work.

A commenter in response suggested that perhaps the issue is not whether jail works as a sanction but how it's used, with the HOPE program showing better results because of the "apparent genuine concern for keeping [probationers] violation free." That writer argued that "Judge Steven Alm's "warning hearings" alone are a cut above the usual assembly line indifference" and could account for the differing results.

Another possibility: It may also be that jail is not best used as the ONLY intermediate sanction but as one of an array of options. In Multinomah County, jail was nearly the lone alternative: "Of the 30 percent of the supervised population who were sanctioned, 92 percent received jail time at some point during their supervision."

Multinomah County sounds like its probation program is not using methodologies from drug courts and other strong probation initiatives like HOPE. "Most people (70 percent) did not receive any type of sanction or intervention while on probation or under post-prison supervision in Multnomah County." So perhaps jail sanctions in the HOPE program work better because they more closely supervise probationers in the first place, actively seeking to identify violations instead of just checking in once per month.

This question requires an evidence based answer. If it hasn't already been done, some researcher needs to define the entire array of possible intermediate sanctions used by problem solving courts and test them individually for effectiveness.

We've got enough specialty courts and strong probation programs in Texas where CJAD (the division in charge of probation out of the Department of Criminal Justice) should be be able to perform such an analysis if it hasn't already been done.

My own guess is that not that all uses of jail to sanction probationers increase recidivism, but that the problem lies instead with overreliance on jail and underutilization of alternatives. That's just speculation, though, in the face of conflicting empirical outcomes. If jail really does boost recidivism and other intermediate sanctions work better, practitioners need to know that.

Survey results: One third of Grits readers say 'Underage drinking for me but not for thee'

In a sense, the results of Grits reader poll last week about underage drinking surprised me. I'd posted the two-question survey after publishing this essay arguing that the legal drinking age should be reduced.

Nearly 500 Grits readers responded to the first of two questions on the topic: "Were you of legal age when you first drank alcohol?" An overwhelming 89% of you replied "No," meaning your first drink was actually a criminal act.

That's an overwhelmingly high figure; this wasn't a scientific poll so I don't know if those results are typical, but I wouldn't be surprised if they are.

However, that's why I'm a little surprised that answers to the second question - "Should the drinking age be lowered to 18?" - were split more or less down the middle, with 55% answering "Yes" and 45% answering "No." (In an informal survey like this that's a statistical draw.)

To judge by these data, give or take a few percentage points (slightly fewer respondents answered the second question), about one-third of Grits readers said their own first drink of alcohol was a crime but they don't support reducing the drinking age.

"Underage drinking for me but not for thee," appears to be the approach implied by these figures.

I've got a few questions for readers who answered that way: First, do you think of your own underage drinking as a criminal act? Do you think you'd personally have been better off if you were arrested and prosecuted for underage drinking? If not, why would you advocate that result for others?

Don't you think the fact of drinking's illegality makes it less likely a teen will talk to their parents or other authority figures if they have a drinking problem? Wouldn't you prefer your kids felt free to seek help when they're too drunk to drive or struggling with alcoholism? Do you want them hesitating to make a phone call that could save their life because they fear criminal sanction?

Finally, if you did not feel compelled to obey this widely flaunted law as a teen, why do you now believe your kids will, or anybody else's? Indeed, when adults told you not to drink, did that make you more or less likely to do so?

I'm not trying to be a smartass in asking these questions, I'm hoping readers who answered that way can help me drill down to understand their thought processes. On its face, these answers appear to evince a double standard. Explain to me please, those of you who adopted those positions: How can this be justified?

Harris County candidate forum focused on mental health and criminal justice

A reader points out this Houston Chronicle story describing "a forum on behavioral health and the criminal justice system" in which "Republican and Democratic candidates for county judge, sheriff and district attorney offered ideas meant to divert the mentally ill from jail to treatment."

Read the whole article for the various candidates' views. For my part, I'm amazed and pleased that there was even a forum on this topic, much less that so many candidates attended. That says a lot, I think, about the zeitgeist of the times, and also the budgetary impact of treating mental illness through the justice system: "Harris County spends an estimated $87 million a year to incarcerate and treat mentally ill inmates," reported the Chronicle.

Nearly every community in Texas faces similar local debates. Statewide, 30% of Texas prison inmates are past clients of the indigent mental health system. Indeed, lately I've begun to wonder if lack of health insurance and minimalist mental health coverage for those who are insured might be a significant contributing factor to criminality among the menally ill, just like failure to invest in eduction harms public safety. To the extent mental illness contributes to crime, and it does, expanding access to services before people offend would reduce both monetary and societal costs, as would diverting so-called "frequent flyers" into more stable, supportive environs.

I'm glad to see candidates being called to account on these topics and hope the forum's organizers will continue to remind the victors of their promises once the November elections are done.

Jury awards fat verdict against Dallas County over jail health failures

For the second time in 18 months, a jury has awarded a plaintiff nearly $1 million because of inadequate healthcare provided by the Dallas County Jail. Reports the Dallas News ("Jury orders Dallas County to pay $900,000 over lack of medical care for fomer inmate," Aug. 27):

A federal court jury ordered Dallas County on Tuesday to pay $900,000 to a former Dallas County jail inmate for denying him proper medical care while he was in custody.

The jury found that Stanley Shepherd's constitutional rights were violated when he was denied basic medical care while in the Lew Sterrett Justice Center on burglary and drug charges in late 2003.

Jurors in the weeklong trial issued their verdict Tuesday morning after deliberating since about 1 p.m. Monday, said Don Tittle, the attorney for Mr. Shepherd. If lawyers' fees and interest are granted, the county could have to pay more than $1 million, he said.

Commissioner John Wiley Price, who has spearheaded recent jail improvements and who voted against contracting out jail health in 2002, said he disagreed with the verdict.

"We will appeal the case. We are going to be vindicated on appeal," he said.

Tuesday's verdict is significant for two reasons, Mr. Tittle said. First, it's the largest jury verdict over a jail-neglect suit against Dallas County. And second, the verdict is an indictment of the county's entire jail-health system instead of one or several isolated cases, he said. In legal terms, that means the jail's "general conditions of confinement" led to the damage suffered.

"It's a finding that they failed to meet the basic essential needs of an inmate" because of systemic problems, Mr. Tittle said.

Mr. Shepherd, 51, who testified during the trial, entered the jail in October 2003 on a burglary and drug charge and suffered the stroke in January 2004. In the seven weeks before his stroke, he received little or no treatment or medication despite high blood- pressure readings, Mr. Tittle said. Mr. Shepherd told the jail staff about his blood pressure medication upon being booked into the jail, the suit said.

He was taken to Parkland Memorial Hospital almost an hour after he was found on the floor of his cell, according to the lawsuit.

The charges against Mr. Shepherd were later dismissed.

Mr. Shepherd, who filed his federal lawsuit in 2005, uses a wheelchair and is paralyzed on his left side, Mr. Tittle said. He can only eat soft foods; his speech, hearing and sight are impaired; he is impotent and suffers from depression; and his wife must help him with everyday activities, the suit said.

With what we know about health care at the Dallas jail, I'd bet dollars to donuts Price is wrong the county will be "vindicated" on appeal. A report (pdf) from the feds issued this spring found some improvements, but overall said many of the same problems described in Mr. Shepherd's suit are still happening.

Indeed, given the details of the plaintiff's case and the clear culpability of the county, Mr. Price and the Commissioners Court might be better served spending money to improve jail health care instead of on appellate lawyers. When he makes comments like that it leads me to believe he's not serious about acknowledging or fixing the jail's problems.

To be honest, $1 million sounds like an awfully cheap payout considering what happened to this fellow and the permanent disabilities that resulted. How hard would it have been just to give him his high-blood pressure medicine, which was in the Sheriff's possession?

Plus, it's not like this is the first time this happened. As mentioned, last year Dallas County was ordered to pay damages for failing to provide adequate healthcare to three other plaintiffs; again from the Dallas News:

Tuesday's verdict – if intact after the county's appeal – will be the second six-figure payout in two years related to the jail's well-publicized problems in providing health care to its jail population.

In February 2007, commissioners agreed to pay $950,000 to the families of three mentally ill former inmates, one of whom died, to settle their civil rights lawsuit over jail medical care.

James Monroe Mims didn't get his medication for two months and nearly died after water to his cell was shut off for two weeks. Clarence Lee Grant Jr. died in his jail cell in 2003 after he did not receive any medicine for five days. And Kennedy Nickerson was found lying sick in the street after being released from the jail without medication or notice to his family.

Several scathing reports have criticized medical care in the Dallas County jail system, and the jails haven't met state standards since 2003.

The only reasons jail health won't be more of an issue in the hotly contested Dallas Sheriff's election are that it's unclear what if anything the GOP candidate might do differently, plus so much blame goes to the county commissioners court for failing to adequately fund jail health over the long haul.

Dallas County is presently in the midst of a self-manufactured budget crisis. The Commissioners Court has declared it won't raise taxes, then used the resulting projected shortfall to justify draconian cuts, mostly affecting services provided to the poorest among us. So unfortunately, in that context, major civil verdicts against the county may be the only way to get the Commissioners Court's attention and focus more resources on jail health on the front end.

UPDATE: Robert Guest adds that this is why Dallas should not be "using their jail to incarcerate those with outstanding traffic fines," noting that "To fill the coffers, Dallas launched the ill conceived "Operation Pay or Stay" program. The result is that one of the most dangerous jails in Texas, is now being used a debtor's prison." "Tarrant County has already had a traffic ticket arrest turn into a death sentence, wrote Guest. "It is only a matter of time before Dallas experiences a similar tragedy."

That Dammed Border Fence

From the moment Congress first proposed putting a wall along the Rio Grande on Texas' southern border to reduce illegal immigration, I thought it was not just a bad idea but an insane one. As far as I can tell, when it's finished the United States will be the first nation state in the history of the planet to wall off a major river and leave the river on the other side!

Anyone who's spent time along the border knows that limiting river access - whether for crops, livestock or recreation - will cause the locals big problems. Plus, by building the fence in a river basin, the project almost ensures problems with erosion, runoff and flooding, not to mention disrupting the environment.

Local officials and landowners in the Rio Grande Valley fought construction of the wall, but have not succeeded in stopping it. Elsewhere, we can already see what's in store along the Rio Grande. Via one of my favorite bloggers, Bryan Finoki at Subtopia: A Field Guide to Military Urbanism, I saw this report that:

A 5.2-mile border fence recently constructed along Organ Pipe Cactus National Monument's southern border in southwestern Arizona became a dam in a recent flash flood, monument officials say.

Writes Bryan:

Apparently, the new $21.3 million, 5.2-mile fence along the monument's southern border, basically turned into a dam during the storms on July 12th. The wire-mesh construction, meant to prevent crossers and vehicles but allow water to pass through, halted the natural flow of floodwater along the border when, according to a National Park Services report (pdf), “Debris piled up against the fence, including in drainage gates designed to prevent flooding, and the 6-foot deep fence foundation stopped subsurface water flow.” So, instead of flowing north to south, as I understand it naturally should, the floodwater carried laterally through the port of entry pooling 2 to 7 feet high and causing tons of damage to the ecology and nearby businesses.

What’s a crime is that none of this came as a surprise to anyone. The DHS had been warned of this sort of potential before they chose to ignore the severity of that discussion, and decided to build a fence regardless, even though they claimed the design would not hamper this flow in any significant way. You can read the full report here (pdf) outlaying the ecological and infrastructural damage that was caused by the border fence, and what can be expected in the future.

That was as predictable as the sunrise. And what will be any different, exactly, about Texas' fence? If the feds can't contain runoff on a flat plain, how in the world do they expect the fence to interact with the environment along an actual, large river in the event of a flash flood? Where will this fence divert runoff otherwise headed for the river? There's no telling, but it's a safe bet we won't find out until the fence is built, the first gullywasher hits, and 2-7 feet of floodwaters back up into some Texas border town as happened in Arizona.

See the full post including an excellent batch of links at the end from Subtopia.

Police interrogation a 'guilt presumptive' process

The raft of DNA exonerations nationwide has focused greater discussion in recent years on a handful of common sources of provably false convictions. While erroneous eyewitness IDs dominate among causal factors, more than a few erroneous convictions have resulted from false confessions.

While the fact of false confessions is inarguable (in Austin's infamous yogurt shop murders, for example, dozens of people confessed to the same crime), the mechanics of how that occurs are only just beginning to be understood. While some false confessors are mentally ill or seeking publicity, others succumb to pressure to confess by police interrogators.

Hoping to "to educate potential clients about police tactics and the psychology of the confession," Texas attorney and blawgger Stephen Gustitis examines new research on police interrogations from an article called Mourning Miranda by Charles Weisselberg analyzing training and tactics used by California police. (Others have commented on this writing here and here. ) Writes Gustitis:

Weisselberg started by distinguishing between an “interview” and an “interrogation.” An interview is non-accusatory. It's “free-flowing and relatively unstructured.” Its purpose is to gather information. An interrogation, on the other hand, is “accusatory,” conducted “in a controlled environment,” and involves “active persuasion.” Officers are trained and understand the difference between an interview and an interrogation. During an interview police establish rapport with a suspect and use verbal and non-verbal information to decide whether, in their view, a suspect is telling the truth. If officers become “reasonably certain of the suspect’s guilt,” they may initiate an interrogation. Consequently, an officer’s initial judgments about truth, guilt, and culpability determines whether the suspect will be interrogated. In contrast to interviewing, interrogation is a “guilt-presumptive" process.

Next consider the nine potential components, or steps, used in many police interrogations. First is the confrontation statement by the interrogator. Then the interrogator interjects a reason for the commission of the crime, usually a morally acceptable one. Then the interrogator prepares to overcome the suspect's denials. Steps four through six guide the investigator in overcoming the suspect's reasons why he would not, or could not, have committed the crime. In step seven the police offer a statement supporting the suspect's morally acceptable reason for committing the crime. And the final steps are take the oral statement and convert it into a written confession.

In a followup post, Gustitis further described common interrogation practices, declaring that typically:

police wanted to first isolate a suspect, allowing them to sit alone and in sparsely furnished surroundings. This increased stress and increased the person's incentive to free themselves from the situation. Then by confronting the suspect outright the police hoped to increase anxiety and induce a sense of hopelessness.

Investigators regularly confront suspects and emphasize to them the only question remaining open is "why" (and not "whether") they committed the crime. In other words, the police presume the person under interrogation is guilty. Additionally, some of the most common police tactics include appealing to the person's self-interest, confronting them with actual (or purported) evidence of guilt, undermining their confidence in denials, appealing to the importance of cooperation, offering moral justifications for committing the crime, and minimizing the seriousness of the offense.

The Miranda court recognized the prevalence and use of these police interrogation tactics and concluded isolation was one of the most significant aspects of these methods. They concluded custodial interrogations contained inherently compelling pressures that undermined a person's ability to make free and informed choices whether to speak to the police.

Weisselberg's description of interrogation tactics jibes closesly with that offered earlier this year by academic Richard Leo in his book "Police Interrogations and American Justice," who argued that police routinely use coercion, fraud and deception in ways that contribute to false confessions. Lying to suspects in particular can generate false confessions as well as other negative outcomes. Such practices are prominent features of the so-called Reid technique (see a description here) which forms the basis for most police interrogation training in the United States.

Recording interrogations would solve some but not all of these problems; many police interrogation techniques are based on inherently coercive approaches that lack scientific support. Particularly suspect is reliance on the interrogating officers' ability to detect deception that supposedly justifies use of more coercive techniques. Ironically, then, one of the main arguments against recording interrogations has been that police want to keep those suspect tactics secret for fear the public won't support them:

The F.B.I., in documents defending its policy [not to require taped interrogations], argued that taping was not always possible, particularly when agents were on the road, and that it was not always appropriate. Psychological tricks like misleading or lying to a suspect in questioning or pretending to show the suspect sympathy might also offend a jury, the agency said.

“Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.

That's not an acceptable reason to oppose taped interrogations, particularly in circumstances where a suspect has been isolated and read their Miranda rights. Just like cockroaches scatter when you turn on a light, my guess is that recording and thus exposing these tactics to scrutiny by judges and juries would, in the long run, result in their defenestration. At a minimum, recording would allow more comprehensive post-investigative analysis by researchers to identify unproductive approaches and best practices. Until then, for the foreseeable future, coercive tactics will remain a routine part of American police interrogation.

Charles Kuffner interviews Harris DA candidate C.O. Bradford

Charles Kuffner has an interview up with former Houston PD Chief C.O. "Brad" Bradford who's now the Democratic nominee for District Attorney. Bradford declared his support for a number of forward thinking ideas, including making the Houston crime lab independent from law enforcement, increasing use of personal bonds to relieve jail overcrowding, and letting police officers use new authority to issue citations instead of arresting for certain low-level offenses. Listen to the interview (mp3).

Kuff covered a lot of ground and got Bradford on the record about a number of subjects I'd not seen nor heard Mr. Bradford discuss, in particular the need to change the culture of the office and get away from judging success or failure solely on the basis of Ws and Ls in the courtroom, which he says is currently the main metric by which internal candidates for promotion are judged. Bradford also suggests creating a Conviction Integrity Unit modeled after the one famously created by Dallas DA Craig Watkins.

Kuff has only been interviewing Democratic candidates, so we may not see a comparable interview by him of Bradford's GOP opponent, former District Judge Pat Lykos. If Chuck won't mind the suggestion, this may be a good race to make an exception to the Dems only interview policy; it'd be good to get both candidates on the record regarding the topics covered in his interview.

Looking forward, AHCL over at Life at the Harris County Criminal Justice Center has promised previews of contested elections in Harris County related to criminal courts, so we'll surely be getting more bloggerly analysis on this race in addition to the usual MSM coverage as the November plebiscites approach.

Too fat to jail?

Not long ago we saw a fellow escape from jail by losing so much weight he could slip through an air conditioning duct. Now we get a tale from the opposite end of the spectrum: A half-ton woman accused of killing a toddler in Hidalgo County who's so fat she can no longer fit through the door. What's more, "The local sheriff says the woman needs extensive medical care, so jail isn't an option anyway."

It seems to me the only difference between being trapped in her bedroom and trapped in a jail cell would be Hidalgo County taxpayers picking up her health care tab. What do you say we agree to just leave her there and call it "house arrest"?

Education investments, not security spending, separates the United States from Third World status

Speaking today of education and crime, I saw a sad and unreal statistic from the Salvadoran Public Security Council which found that "El Salvador spends some 11% of its GDP on security, yet spends only 2.7% on education." Their crime problem is a lot worse than ours, too; for that matter, it's substantially worse than Mexico's.

These stark data remind me of a recent exchange in Grits comments. Reacting to this Grits post, someone wondered, given Texas' high incarceration rates, "Do we need any more proof that Texas is really just another third world country?" I replied that no Third World country could afford incarceration rates that high, declaring "Mass incarceration is a rich nation's hobby."

To judge by these data, I may have misstated things. I don't know comparable US stats, but as a proportion of GDP, one anticipates a much greater proportion of public expenditures in the United States go toward education as opposed to items associated with security (though it's hard to say what effect the wars in Iraq and Afghanistan, which are being fought with borrowed money, not directly out of GDP, had on that ratio).

For that matter, I've little doubt that those reversed spending priorities are a big reason why the United States has less crime and more economic prosperity than Third World nations that don't invest in education as heavily. Ideally the overall balance struck would decisively favor education spending. Particularly in the modern information-era economy, investments in society's human capital via education make everybody safer in the long-run with more overall bang for the buck than prisons and jails.

Read the full post from Mexidata.

Questioning impartiality of (particular) judges

Via Texas Lawyer - Two high-profile cases where defendants dispute the impartiality of the judge:

Recusal, round two: A convicted capital murderer gets another chance to disqualify the judge who presided over his trial. Senior reporter Mary Alice Robbins finds out why. ...

Death row inmate seeks depos: Charles Dean Hood has filed a petition in Collin County seeking to take the depositions of the judge and prosecutor for his 1990 trial, who he alleges were having an affair at the time. Senior reporter Mary Alice Robbins gets the documents.

Back to School: Fight Crime, Invest in Kids

As Texas kids head back to school today, it's worth raising the question of whether too much public debate is focused on crime and punishment and too little on investments in education and mental health care that might prevent more incarceration.

That's the gist of the "Fight Crime: Invest in Kids" initiative proposed recently by a national coalition of police, prosecutors and crime victims. I agree with Doc Berman that education and crime are too seldom linked in the public discourse. That's not just a "framing strategy," as Dan Filler put it it's a valid interpretation of the data that's become unpopular in recent years because of political arguments labeling its proponents "liberal" or "soft on crime." However, that doesn't invalidate the stance or reduce its import to mere clever political posturing. From the group's press release:

Research shows that high school dropouts are three and a half times more likely than graduates to be arrested and eight times more likely to be incarcerated. Nineteen of the top 25 largest U.S. cities have school districts where 40 percent or more of students do not graduate on time. Nearly 70 percent of all inmates in our nation's prisons failed to earn a high school diploma.

The law enforcement leaders are members of Fight Crime: Invest in Kids, a national anti-crime organization made up of over 4,000 police chiefs, sheriffs, district attorneys, and violence survivors. They called on Congress and state lawmakers to expand pre-kindergarten, one of the most effective strategies to increase graduation rates.

"If kids get strong start early in life, we can cut our dropout rate and improve our communities," Lynch said. "To help more kids get that strong start, we need to fund early childhood education programs and ensure that every child that qualifies is able to enroll."

The Fight Crime: Invest in Kids members released a report called "School or the Streets," showing that increasing graduation rates by 10 percentage points will prevent 3,000 murders and 175,000 aggravated assaults in America every year.

To the extent those estimates are accurate, failures by Texas public schools on a massive scale contribute mightily to the expanding prison population.

In May, former Secretary of State Collin Powell's organization, America's Promise, issued these data regarding dropout 4-year graduation rates in the largest Texas cities:

Dallas: 44.4%
Houston: 54.6%
San Antonio: 51.9%
Austin: 58.2%
Fort Worth: 55.5%

As Grits argued in reaction to that analysis, there are particular subgroups among dropouts who account for a disproportionate amount of crime and public safety resources:

Straight-up illiteracy is a key criminogenic factor. It's long been known, for example, that while dyslexics make up about 10% of students, they make up 30% or more of those in prison.

As far as reducing crime, an even more important subcategory are kids with incarcerated parents, who tend to be 6-8 times more likely than their peers to wind up incarcerated themselves. Making sure those kids stay in school and have real opportunities to succeed might be the single most important contribution society could make to reducing future crime.

Texas' massive prison system shows it does a good job of holding its citizens accountable (one in 21 adult Texans are in prison, in jail, on probation or on parole), but these high dropout rates show there's been little progress made holding schools accountable for their frankly lousy outcomes.

I spend a lot of time on this blog looking at the back end of the system's failures and how we manage those who've already violated societal rules. But there's little question reducing those massive dropout rates would reduce crime and systemic pressure on the front end better than anything that could be done after people have already offended. Worth contemplating, certainly, as everybody heads back to school.

Federal panel issues prison rape prevention recommendations

In reaction to the passage by Congress in 2003 of the Prison Rape Elimination Act, the Department of Justice in recent years has focused greater attention on documenting, preventing, and encouraging prosecutions of prison rape, gathering data on the problem comprehensively for the first time and setting up a review panel to recommend ways to prevent it. (See transcripts and testimony from their initial hearings.)

Reacting to their recommendations issued on Friday, the Houston Chronicle ("Report advises how to prevent rapes in prison," Aug. 22) reminds us that Texas has one of the worst documented problems with prison rape of any state:

Last year, an arm of the Department of Justice — the Bureau of Justice Statistics — made its first attempt at complying with the law by conducting a survey of randomly selected inmates at a limited number of facilities. The inmates were asked to report whether they had been sexually assaulted in prison in the previous 12 months.

At Estelle prison, 16 percent of the inmates who took part in the survey reported being sexually assaulted — the highest rate of any prison that took part in the study. ...

Clemens prison had the second-highest rate, with 14 percent of inmates reporting that they were sexually assaulted.

The three other Texas facilities rounded out the top 10 prisons with the highest prevalence of inmates who said they were sexually assaulted. Allred's rate was 10 percent, Mountain View's 9.5 percent and Coffield's 9 percent. Mountain View is a women's prison in Gatesville, about 40 miles southwest of Waco. Allred is in Wichita County, and Coffield is in Anderson.

Arguably reporting on prison rape is so poor that Texas might be receiving an unfavorable comparison with other states just because TDCJ is more likely to report sexual assaults, not because more necessarily occur here. But whether the problem is substantially worse than other states or merely better documented, Texas still must address it. On Friday, the federal panel issued the following recommendations :

• Pornography should be banned among inmates, especially those who have a history of sexual assault or are at risk of becoming sexual predators.

• Prison staff should receive more and better training about sexual assaults. Staff should be tested to make sure that they have comprehended sexual assault policies.

• See-through doors should be installed on closets, high-risk cells, laundry rooms and other areas where assaults might occur.

• Inmates should have access to a hot line that allows them to report assaults to a prosecutor or inspector general.

• Strip searches of inmates should be conducted only by corrections officers of the same sex. ...

• [I]nstall videocameras in areas where assaults are most likely to occur, including isolated areas of kitchens, laundry rooms, shower rooms and cells of inmates at risk of being victims or rapists.

• Those who investigate sexual assaults should be independent of the prison system.

• Prisons should reduce overcrowding and maintain proper staffing levels.

TDCJ spokeswoman Michelle Lyons told the Chronicle that "a number of the panel's recommendations are already TDCJ policy, including assessing newly arrived inmates to determine whether they are at risk of being raped or committing rapes."

For more information on this topic see the resource page from the National Prison Rape Elimination Commission.

Levin urges Corrections Committee to mimic Hawaii's HOPE program

At the House Corrections Committee hearing last week, Texas Public Policy Foundation researcher Marc Levin said the state should consider adopting elements of the HOPE initiative in Hawaii - which stands for Hawaii Opportunity Probation with Enforcement. This morning I ran across this 2-page fact sheet from USDOJ describing the program, and also this Wall Street Journal feature from July.

The HOPE program is similar to strong probation mechanisms used in drug courts, but with a much broader population of offenders. According to the Wall Street Journal:

HOPE is the brainchild of Judge Steven Alm, an energetic 55-year-old former U.S. attorney for Hawaii who drives a black Corvette. He was assigned to criminal court in 2004 and immediately faced a slew of motions to revoke probation. In every case, he recalls, the defendant had "pages of violations stretching back months or even years" yet had suffered virtually no consequences for any of them.

That is the reality across the U.S., Prof. Kennedy said. Probation, administered by a patchwork of state and local systems and often starved for resources, "basically teaches people to ignore" probation officers' warnings, he said, until violations accumulate to a tipping point. Then, offenders face dire -- and expensive -- consequences: in Hawaii, as much as 20 years in prison.

To Judge Alm, this system seemed as absurd as parents failing to respond to a child's persistent misbehavior and then suddenly kicking him or her out of the house. His idea: Instead of one severe sanction after many violations, mete out relatively minor but "swift and certain" sanctions for every violation.

The judge holds a "warning hearing" to explain the HOPE rules. Under regular probation, for example, offenders are usually drug-tested only when they meet with their probation officer, giving them time to wash out the drugs. In HOPE, probationers with a drug problem must call in every weekday morning to see if they are scheduled for a random drug test that day.

Virtually every violation results in immediate arrest, a hearing within 72 hours and almost certain jail time, varying from a few days for a first violation to a few months for subsequent ones. Participants who accumulate several violations risk having probation revoked and being sent to prison for years.

"I thought it would be counterproductive," recalled probation officer Sheri Shimbakuku. "How will I help them if they're in jail?" But she says HOPE probationers seemed much more receptive to help: "Boy, it was just different seeing their reaction to being in jail."

Flash incarceration has been used around the U.S. by specialized courts established to adjudicate drug cases, with demonstrated success. But the Hawaii program is one of the first to test the approach among a broader group of probationers. In a randomized, controlled trial of more than 500 probationers, researchers from Pepperdine University and the University of California at Los Angeles found HOPE probationers were less than half as likely as controls to miss probation-officer appointments or test dirty for drugs, even though the controls knew in advance when they would be tested and HOPE participants didn't. These preliminary findings are being announced Thursday, and full results are expected by year end.

Failure to update state crime database affects employment options for the unconvicted

Texas' statewide crime database is woefully incomplete, containing no information at all about outcomes on more than 30% of cases, reports the Dallas News ("Counties fail to update cases in state crime database," Aug. 23):

The state's criminal database, riddled with holes four years ago, has just as many gaps today.

Although officials in Dallas and other poorly reporting counties promised in 2004 to do better, the Department of Public Safety says counties in the most recent assessment submitted outcomes on just 69 percent of criminal charges – the same percentage as before.

"That's astonishing. That's leaving a substantial total number of criminals unreported in the system," said John Bradley, Williamson County district attorney. "That's the biggest threat to public safety that you can imagine, particularly in a post-9/11 time when we rely on databases to protect the public."

Angie Klein, manager of the DPS criminal history records bureau, attributed the counties' lack of progress to slow resolution of many felony cases, and glitches in big urban counties, which can bring down statewide compliance rates.

"It's hard to keep trained personnel," she said.

Failure to update the database has real-world consequences because it's used for employment screenings:

The DPS database also is used to screen schoolteachers and volunteers who work with children, and caregivers for the sick and frail. Gaps can affect background checks run by employers on job applicants and landlords checking on prospective tenants. Everyone from job applicants to people trying to adopt children or buy guns can be affected, Ms. Klein said. No one knows how many Texans didn't get a job because an acquittal or dismissal wasn't in the system, she said.

An increasing number, though, are venting. A surge of complaints from people, mostly job seekers frustrated that their acquittals or charge dismissals don't appear in the database, has forced DPS to double the size of an error resolution unit, to 20 employees, Ms. Klein said.

Reading that, one is reminded of the Rothgery case considered by the US Supreme Court this Spring out of Kerr Gillespie County. Rothgery's original detention was for being a felon in possession of a handgun, but he wasn't really a felon - the crime database failed to report the updated outcome that the charge had been dropped to a misdemeanor (see the comments). And so began a years long-journey that led Mr. Rothgery all the way to SCOTUS. But it ironically could all have been avoided with better record keeping.

One notices there's no lack of enthusiasm for the system to record every arrest and initial charge - the recalcitrance comes, apparently, in updating when charges are reduced or cases are dismissed. E.g., "DPS has only half of Dallas County's "dispositions" – what happens to a charge after prosecutors and courts step in – for 2001 and 2002, and two-thirds for 2003." So while the original charges are recorded and that data routinely stored, many counties aren't updating it when case outcomes favor the defendant instead of the state. No wonder people are upset and suing when the database later wrongly accuses them and keeps them from getting a job.

Point-counterpoint on underage drinking

The Dallas News this morning published an excerpt from this Grits post on the merits of lowering the drinking age, using it as a counterpoint for a longer column reprinted from a Chicago Tribune columnist Steve Chapman, who makes a claim I don't believe stands up to rigorous scrutiny:

It's true that in the old days, there was no college culture of clandestine, off-campus binge drinking. It was out in the open, right on the quad. Another difference back then: There was more of it.

By what measure, exactly, was there more underage drinking 25 years ago than today? After all, how can we really know since it's been effectively driven underground? Just because you don't see it on the quad doesn't mean kids aren't drinking back at their apartment, frat house or other off-campus setting. (Is "out of sight, out of mind" really the approach we want to take on this topic?) Drunk driving has declined across the board, not just for teens. And to the extent overall teen drinking has declined, how do we know it isn't just a substitution effect with marijuana and other drugs?

What's more, Chapman's analysis ignores data indicating binge drinking increased as a result of raising the minimum legal age. If more youth drank before the drinking age rose but a greater proportion drank irresponsibly after the law changed, that's still an ineffective law.

Neat use of mapping software by criminal justice blogger

Not a Texas topic, but I thought I'd point readers to a really cool use by a criminal justice blog of a Google Maps application over at the Chicago Syndicate to create the "Chicago Mob Infamous Locations Map." (See a larger version.)

That's a neat use by a blogger of free Google Map software, making me think perhaps I can find uses for the technique on Grits. A similar method could be useful, e.g., for tracking police corruption episodes on the border.

Hochberg: Create "warehouse" of publicly accessible criminal justice data

Rep. Scott Hochberg proposed an excellent idea at yesterday's House Corrections Committee as committee members were grilling witnesses trying to get to the bottom of data surrounding which counties sent how many offenders to state jail facilities and the related recidivism rates.

Office of Court Administration chief Carl Reynolds had suggested that the state needed a "systematic, ongoing" way to analyze criminal justice data along the lines of Dr. Tony Fabelo's now-defunct Criminal Justice Policy Council.

Hochberg said that every session there are "a whole raft of questions" being asked by the Lege and outside organizations but there's never any simple way to get at the answers. He suggested building "a repository of data that people could access to be researched without every request having to go" to each individual agency - some sort of "public data warehouse" of de-identified public data. "It's a drain on the agencies every time you have to go to them and go through a data request," said the Houston rep.

Hochberg said providing data to people outside the system helps solve the problem that you don't "find the things you don't know you're looking for" unless "you have that data out there and people are pawing through it." In particular, he said the same model has been successfull regarding data about public schools, resulting in helpful and insightful analyses by group's like Texas Appleseed, he said, who crunched the data in different ways and helped identify problems and solutions. Hochberg suggested the committee's interim report include recommendations regarding access to information.

From a blogger's perspective I love Hochberg's idea. In fact, if they're going to do it, I'd suggest the committee get assistance from researchers like Dr. Fabelo, UT-Austin's criminal justice data guru Bill Spelman or the Texas Public Policy Foundation's Marc Levin to identify what data and formats would be especially useful and probative.

There are many organizations and interests who participate in public policy debates on these subjects. Put information out there that's useful and I'll guarantee it would get used. For my part, if they create such a thing I'll certainly pledge to "paw through" the data.

Texas Criminal Justice By the Numbers

Just a few bits of telling data about Texas' criminal justice system compiled from prior Grits posts:

Proportion of Texas adults under control of the criminal justice system (in prison, jail, on probation or on parole): 1 in 21

Increase in Texas' overall population 1978-2004: 67%

Increase in Texas' prison population 1978-2004: 573%

Number of felonies on the books in Texas: 2,324

Number of Texas felonies involving oysters: 11

Percentage of TDCJ inmates convicted of drug offenses: 19.6%

Drug offenders as a percentage of total probation revocations: 37%

Percentage of state jail inmates incarcerated for less than a gram drug offenses convicted in Harris County: 50%

Percentage of Texas population in Harris County: 17%

Percentage of TDCJ pharmacy budget spent on HIV drugs: 48%

Percentage of Texas prison inmates who were clients of the indigent mental health system on the outside: 30%

Percentage of TDCJ inmates eligible for parole 66%

Texas prison staffing positions vacant: 3,040

Number of TDCJ staff fired for disciplinary infractions in FY 2007: 538

TDCJ prison guard pay ranked by state: 47th

Proposed TDCJ budget increase next biennium for the same prison population: 10.5%

Percentage of Texas drivers with no auto insurance: 25.5%

Proportion of drivers sentenced to pay "driver responsibility" fees who become scofflaws: 70%

Percentage of Texas adults with outstanding arrest warrants: More than 10%

Number of exonerations in Texas based on DNA since 2001: 34

Percentage of Texas cases solved by DNA resulting in exonerations: 3.3%

Percentage of Texas DNA exonerations where wrongful conviction was caused by a faulty eyewitness: 82%

Number of prisoners entering TDCJ for homicide in 2007: 849

Number of new TDCJ inmates in 2007 sentenced to death: 14

Federal judge delays Jeff Wood execution

Greg Moses at the Texas Civil Rights Review and the SaveJeffWood.com website are reporting that a federal judge has issued a stay in the controversial Jeff Wood capital murder case. Wood was scheduled to be executed tonight.

UPDATE: CBS News has an initial report declaring that the delay was "so Wood's attorneys could hire a mental health expert to pursue their arguments that he is incompetent to be executed," an issue that nearly kept him from being prosecuted in the first place. According to the Houston Chronicle:

Wood initially was found by a jury to be mentally incompetent to stand trial. After a brief stint at a state hospital, a second jury found him competent. After he was found guilty, he tried to fire his lawyers before the penalty phase. The trial judge denied the request but Wood's lawyers followed their client's wishes and called no witnesses on his behalf and declined to cross-examine prosecution witnesses.

Doesn't sound like he allowed his attorneys to put on much of a defense, does it? Whether it's evidence of mental illness, it's certainly not a rational act to restrict one's defense in a capital murder trial, particularly when, as in Wood's instance, he wasn't actually the trigger man; he'd helped plan the robbery but was sitting outside in the getaway vehicle when the murder occurred.

I've long ago given up predicting the outcome of capital appeals in Texas, so who knows how this case will turn out. But it's clear federal courts still don't have confidence that Texas is responsibly handling its death penalty cases, a fact which contributes to the extensive delays in carrying out executions.

MORE: See additional coverage from the Stand Down blog, and here's a statement issued by the Texas Defender Service:

WOOD EXECUTION HALTED BASED ON TEXAS STATE COURTS FAILURE TO PROVIDE DUE PROCESS ON ISSUES RELATING TO WOOD'S MENTAL ILLNESS

Austin -- Today, the Federal District Court granted a stay of execution in the case of Jeff Wood to allow the court to consider compelling evidence that Jeff Wood is too mentally ill to be executed. The Court held that the Texas state courts have not carefully reviewed the question of Wood's competence and that a stay of execution is necessary to ensure that Wood's mental health issues are fully presented and considered by the courts. ...

"We applaud the Federal District Court for upholding Jeff Wood's rudimentary due process right to have his competency evaluated," said Andrea Keilen, executive director of Texas Defender Service, who, along with attorney Scott Sullivan, are representing Mr. Wood.

The Federal District Court authorized an attorney and the assistance of mental health experts, pointing out that the Texas state courts had not complied with the basic due process that the United States Supreme Court required in another Texas case - that of Scott Panetti, a mentally ill death row inmate with a 20 year history of schizophrenia, who was permitted to represent himself at trial dressed in a purple cowboy costume.

In its 20-page order, the Court stated, "With all due respect, a system thatrequires an insane person to first make "a substantial showing" of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system."

Prosecutors have indicated they will not appeal today's decision.

AND MORE: See Judge Orlando Garcia's 20-page order (pdf). Judge Garcia found that although "evidence of petitioner's alleged incompetence now before this Court is far from compelling,"

Petitioner's motion presents non-frivolous arguments suggesting petitioner currently lacks a rational understanding of the connection between his role in the offense and the punishment imposed upon him.

Another money quote:

The initial constitutional deficiency with what transpired during petitioner's latest state habeas corpus proceeding is that petitioner was afforded neither court-appointed counsel nor expert assistance to challenge his own competence. Instead, the State of Texas insisted an arguably insane death row inmate proceeding without the assistance of court-appointed counsel was required to satisfy the threshold requirement of Article 46.05 ... [which involves] arcane pleadings so intellectually challenging they test the skill of even the most seasoned attorney.

Finally, one of the flaws in Texas statutes and their interpretation that created these constitutional defects is an issue that SCOTUS attempted to rectify in a recent bench slap against the 5th Circuit and the Texas CCA:

the Texas statutory definition of "incompetent to be executed" apparently applied by the state trial court during petitioner's most recent state habeas corpus proceeding suffers from the exact same constitutional defect identified by the Supreme Court when it struck down as too narrow two decades of Fifth Circuit precedent construing the Supreme Court's holding in Ford.

See the full opinion. (pdf)

Stories I'd blog about if I had more time

Quite a few news pieces caught Grits' attention recently that could each easily inspire its own blog post, but since I don't have nearly enough time to devote, let me just point readers to these criminal justice stories from the MSM:

• Experts question dozens of arson convictions, ABC News, Aug. 20

• Accomplice law led to execution set for today, Houston Chronicle, Aug. 20

• Texas adopts 'Blue Alert' for copkillers, Houston Chronicle, Aug. 18

• Dallas DA to start rejecting most cases without arrests, Dallas News, Aug. 14

• Many Dallas patrol cars out of service, Dallas News, Aug. 12

• State settles lawsuit over closure of Bastrop County boot camp, Austin Statesman, Aug. 13

• GOP lawmakers question AG over immigration authority, Dallas News, Aug. 20

• Does anti-addiction drug Prometa promise more than it can deliver?, Dallas Observer, Aug. 14

• US may ease police spying rules, Washington Post, Aug. 16

• 36 states release ill or dying inmates, USA Today, Aug. 14

• Sex offender laws: Protecting our kids or jeopardizing everyone's freedom, Christian Science Monitor, Aug. 14
  

• Defendants should have the right to forensic expertise, New Jersey Star Ledger, Aug. 14
  

• America's largest mental health hospital is a jail in downtown Los Angeles, NPR, Aug. 14

Highlights from TDCJ chief's testimony at House Corrections

The House Corrections Committee began its hearing this morning with testimony from Brad Livingston, E.D. of the Texas Department of Criminal Justice. Here are a few highlights:

The largest recent contract approved at the board level is telephone contract, said Livingston. Roughly 120,000 offenders will have access to around 4,000 phones which will use biometric identifiers and personal identification numbers to restrict inmates to making approved calls. It will take 7.5 months to install the phones. The rates are "quite low compared to what you'd see in county jails."

Two employees from the phone contractors explained there will be registration process to screen who inmates can call and a voice identification system will ensure the prisoner whose ID number is used is really the one speaking on the phone. Offenders can only make calls to people on an offender's visitation list.

Increased number of residential beds for probationers by 800, 3/4 of which are already in place. They also are receiving good feedback from judges to the extra $10 million per year authorized by the Lege for outpatient drug treatment, said Livingston. Funding was approved to add 1,000 beds to the In-Prison Therapeutic Community program, which he said have all been in place "for several months now." About 600 out of 1,500 new SAFP beds the Lege authorized are also online.

The new funding for an in-prison DWI treatment program has been a subject of debate with the Board of Pardons and Parole regarding who's eligible for the program. Livingston said those differences had been "worked out" but did not elaborate and quickly brushed past the issue, making me think there's still some behind the scenes contentiousness he preferred not to discuss.

Residential aftercare, said Livingston, has been an ongoing challenge because vendors haven't shown up to bid on contracts for so-called "Transitional Treatment Centers." The "vendor community" has not pursued these contracts. The current RFP, the latest of several, is "open ended" waiting for anyone who's willing to step up and provide the services. (See prior Grits coverage.)

Rep. Terri Hodge said there are hundreds of prisoners right now who've completed their IPTC or SAFP treatment requirements but have been refused parole because the TTC beds simply don't exist. She asked Livingston if offenders will just "sit there in prison" because contractors won't provide aftercare beds.

Livingston said alternatives he's considering could require "changing some mindsets" about what aftercare should look like. I have no idea what that means! To me, if private vendors don't exist to provide the services that leaves only two options: For the state to directly provide the services or to substitute more rigorous community supervision and treatment requirements for parolees. He later referenced the possibility of partnering with local CSCD's to provide intensive supervision and case management in lieu of expanding TTC beds. That approach might also assist with Rep. McReynolds concern that aftercare approaches are mostly aimed at urban needs and not so easily tailored to rural settings.

Livingston also briefed the committee on TDCJ's recent legislative appropriations request, taking the opportunity to pitch a proposed 20% pay hike aimed at remediating the agency's ongoing staffing crisis. Statewide turnover for guards is 24%, said Livingston, but before the hiring bonuses turnover in the first 12 months was 42%. Turnover for parole officers, he said, is about 20% per year.

Thanks to recruitment bonuses approved this spring, he said, for the first time in anyone's memory TDCJ's staffing actually improved over the summer instead of worsened. (Typically more staff leave in the summer months when the lack of air conditioning combines with low pay to make other opportunities look a lot more appealing.)

Madden raised a potential looming issue: When TDCJ raises pay for guards, won't COs at private prisons with with which the state currently contracts, so what happens when they become understaffed? Livingston said improving rates for contractors to factor in increased pay would be "challenging" and basically said, if not in so many words, it would be the contractors' problem to manage.

Relating to re-entry, a topic to be discussed later in the hearing, Livingston said the current budget proposes increases for outpatient substance abuse treatment which he says is the item most frequently requested in conversations with judges. He also encouraged the Lege to increase funding more mental health services.

Regarding state jails, Livingston said they were aimed primarily at property and low-level drug offenders and are not eligible for parole or good time. There are 20 state jail facilities (out of 106 TDCJ units). Thanks to additional funding last year, he said, 1,200 treatment slots have been added within existing state jails and are now online. He and Rep. Hodge also had a discussion about why the Department of Public Safety won't accept TDCJ ID cards to get a driver's license. (Perhaps a new DPS director will take a different position on that topic.)

With that, Livingston concluded his testimony. On, the committee goes, to discuss state jails.

Federal prisoners to get limited email access by 2011

Earlier this month, the Texas Department of Criminal Justice decided to join the other 49 US states in allowing most prison inmates regular access to telephones in the face of rampant cell phone smuggling by TDCJ guards. But the federal system is doing even more to reduce contraband flow and connect inmates with their families and approved contacts in the outside world, reported USA Today (Aug. 16): "By the spring of 2011, all 114 U.S. prisons are expected to have e-mail available for inmates."

The program, started several years ago, has reduced the amount of old-fashioned paper mail that can sometimes hide drugs and other contraband. Just as important, officials say, e-mail helps prisoners connect regularly with their families and build skills they can use when they return to the community.

For [inmate Melvin] Garcia, that means learning the computer.

"LET'S JUST SAY THAT MY PREVIOUS EMPLOYMENT DIDN'T REQUIRE IT :o)," he joked in a recent e-mail.

The system inmates use isn't like programs used in most offices and homes. Inmates aren't given Internet access, and all messages are sent in plain text, with no attachments allowed. Potential contacts get an e-mail saying a federal prisoner wants to add them to their contact list and must click a link to receive e-mail, similar to accepting a collect call from a lockup.

Once approved, prisoners can only send messages to those contacts — they can't just type in any address and hit send. And contacts can change their mind at any time and take their name off the prisoner's list. ...

The Federal Bureau of Prisons says the system pays for itself with some of the proceeds from prison commissaries. Inmates also pay 5 cents per minute while composing or reading e-mails.

Security, of course, is a concern. That's why the messages can be screened for keywords that suggest an inmate may be involved in a crime, or read by a corrections officer, just like paper letters. That can create some lag time between when messages are sent and received.

Without analyzing the program specifically, it would be impossible to tell whether inmates could abuse their e-mail privileges, said Bruce Schneier of the security firm BT Counterpane. Coded messages could be sent over e-mail, but that could happen just as easily over the phone, he said.

House Corrections to discuss technology, reentry and state jails

The Texas House Corrections Committee will meet this morning at 9 a.m. in the capitol to take up three interim charges that should generate a fascinating discussion:

The House Committee on Corrections will hear invited and public testimony on the following interim charges:

1. Explore the use of technology practices that improve efficiency, safety, and coordination of criminal justice activities on the state, local, and county levels.

2. Consider new strategies for meeting prisoner reentry challenges in Texas, including the evaluation of programs with documented success. This review should include the availability of housing and occupational barriers.

3. Provide a comprehensive analysis and study of the Texas state jail system, including original intent for use, sentencing guidelines, and effectiveness. Develop suggestions for changes and improvements in the state jail system.

You can watch the hearing once it begins at this link. See also an earlier Grits post on the committee's interim charges and links to materials from the Texas Criminal Justice Coalition which will be presented to the committee as part of its reentry discussion.

'Round the blogs

While I take care of other business today, let me refer readers to these Texas blogs which all have up interesting and worthy recent posts:

• The Dallas News Crime Blog was recently upgraded to include regular contributions from beat reporters and will be belatedly added to Grits regular links list. Give it a read.
  

• Mark Bennett and the blogger at Life at the Harris County Criminal Justice Center each have posts about lawyers on both sides of the bar saving lives outside the line of duty.

• Bob Libal at Texas Prison Bidness reports that private prison contractor Corrections Corporation of America is betting on increased immigration detention no matter who wins the election, counting on continued gridlock to prevent comprehensive reform.
  

Should the US lower the drinking age?

Were you 21 (or of legal age) when you took your first sip of alcohol?

Not me. Back when I began drinking, the minimum legal drinking age (MLDA) was still 19. Lawmakers raised it to 21 the year following my 19th birthday, so I could legally drink for a few months, then it became illegal again.

That's the official story, anyway. The truth is, I began drinking at age 16 and the law failed to affect my behavior one way or another. Illegal IDs were common in high school - I had one for a while - or else somebody's older brother would buy a keg from the next county over (Tyler and Smith County were and are "dry") and the kids would get drunk out in a dimly lit cow pasture or at somebody's rural lakehouse. While I'm not proud of it, I recognize that my personal history is hardly unique.

To be sure, such experience from my own callow youth inclines me to sympathize with the call by university presidents this week to lower the MLDA. My high school class was a virtual case study in the law's ineffectiveness. We were yo-yo'ed back and forth between drinking's legality and illegality, yet I knew no one who changed their behavior on that basis. There were no shortage of serious drinkers in my high school class, and for those who didn't drink it was a personal (often a religious) choice, not a fearful submission to state power.

To my mind, encouraging more widespread respect for law and the justice system - and discouraging an oppositional culture that disdains government authority - is the best argument behind lowering the drinking age. It's simply fiction that kids with a car and a driver's license can't get access to alcohol (though it's not as easy as buying illegal drugs, which don't have to come from a licensed distributor). Inevitably, from the perspective of youth themselves, there's a hypocrisy behind the actions of a government that says an 18 year old can vote and join the army but cannot legally drink alcohol. They're held accountable as adults when they screw up, but they're not treated as adults in the most common social settings.

For some, highway safety is the only relevant factor. A survey of studies in 2003 from the Centers for Disease Control estimated:

that changes in the MLDA result in changes of roughly 10% to 16% in alcohol-related crash outcomes for the targeted age groups, decreasing when the MLDA is raised, and increasing when it is lowered.

But experts dispute the role of the MLDA in that decrease compared to broader cultural changes. Road deaths due to youth drinking in Canada, for example, declined at similar rates to America even though they didn't raise their drinking age to 21. The group Choose Responsibly argues that:

This downward trend in drunken driving across the industrialized world suggests that something other than a change in the drinking age was at work. Thanks to successful public education efforts, attitudes toward drinking and driving changed over time. The “designated driver,” a term unknown in 1984, indicates such an attitudinal shift.

One also notices that cigarette smoking has declined over the same period, which argues that public health campaigns focused on education instead of criminalization - both for alcohol and cigarettes - have significantly impacted behavior. I don't doubt that cultural changes like the introduction of the "designated driver" reduced drunk driving. From my own experience, I doubt raising the MLDA did so nearly as much.

In general, I think we have too many laws and use criminal sanctions to attack what are essentially social problems, which is what's happened with the MLDA. The United States has a more widespread culture of addiction, including but not limited to alcoholism and binge drinking, than most other modern nations, which is why America makes up 5% of the world population and about 50% of global demand for illegal drugs. Setting the drinking age at 21 drives that culture underground during teens' formative years instead of intervening to change it. At least that was my experience.

The corruption from overcrimnalization of social problems affects everyone, not just those who violate the law. Even kids I knew in high school who didn't drink would never have ratted out those who did. The lesson taught by these statutes informs youth that some laws needn't be taken seriously, that it's okay to conceal "crimes" by others from authorities, and most importantly, that one's interaction with the law should begin by second guessing it based on your own values, only complying if you agree with its premise. Whether that's a meritorious view is debatable, but it's undebatably not in the government's interest to promote its widespread adoption.

Defying one law makes it easier for youth to justify defying another, perhaps with more serious consequences. I'm sure if I hadn't needed it to buy alcohol, I'd have never considered getting a fake ID in my teens. But because of underage drinkers, there exists an underground fake ID industry in every state with a massive customer base. That makes us all less safe because, as 9/11 showed, fake IDs can be used for a lot more devious purposes than buying a six pack.

In Grits' sidebar I've added a couple of poll questions for readers: Were you of legal age when you first took a drink, and should the drinking age be lowered? Be sure to register your opinion there in addition to, as always, the comment section below.

Mental health spending, TYC 'regionalization' highlight juvie corrections budgets for 2010-11

Let's point out a few highlights in recently issued agency proposals for state juvie corrections budgets that will surely frame legislative discussions in 2009. (For readers who may be interested in this level of detail, see the Texas Youth Commission's legislative appropriation request [LAR] for 2010-2011, and this LAR for the Juvenile Probation Commission.)

Right off the bat, in TYC's exceptional items (pdf) the agency proposes reducing staff size by 172 positions compared to the current budget, most of which can likely be accomplished through attrition. TYC also proposed pay raises for JCOs in its LAR, but not of sufficient magnitude to match what's been proposed in the adult system which currently has identical pay scales.

I was also glad to see the agency intends to continue requesting more funds for mental health services. According to the base budget request (pdf), after receiving a more than 200% increase in mental health services in 2009, from $1,143,556 to $3,513,862, TYC has requested another 20% bump to $4,536,707.

Indeed, IMO it would behoove the state to expand mental health spending across the board much earlier in the process. According to the Juvenile Probation Commission's LAR (p. 6 of the pdf), "According to TJPC data, approximately 26.5% of youth under supervision (19,567 youth) have a diagnosable mental health disorder These juveniles recidivate at a rate almost 50% higher than juveniles that are not mentally ill."

Juvenile probation budgets for mental health services are much smaller, though probation serves perhaps 97+% of juvenile offenders, not TYC. TJPC asked for a modest "increase of $6.5 million (over two years) to conduct mental health assessments, provide mental health services to youth referred to juvenile probation departments or placed in secure facilities." I'm glad to see it, but for my money even that figure should be increased - TYC's mental health services need and deserve the funding boost they've requested, but a truly coherent public policy would invest more heavily in juvie probation departments on the front end to keep kids out of a youth prisons in the first place. The same could be said for so-called alternative disciplinary systems in schools.

The biggest decision over the Youth Commission's next biennial budget will inevitably be what the Lege decides to do with the conservator's "regionalization plan." See the various options laid out here. The conservator and TYC administration favor Option 2, described as follows:

Construct 8 non-secure 24-bed Community Transitional Centers at $1.7 million per site:

• Houston area (3 sites)
• Dallas area (1 site)
• Amarillo area (1 site)
• San Antonio area (1 site)
• Austin area (1 site)
• Tyler area(1 site)

Acquire and renovate a secure 48-bed facility in Kerr County at an estimated cost of $6 million.

Acquire and renovate a 48-bed facility in Terry County at an estimated cost of $4-6 million.

Inevitably this strategy will mean downsizing or shutting down some existing TYC facilities, but the use of smaller halfway house style units and the shift to smaller settings closer to the students families in and of itself is a good idea.

In addition to that proposed new capacity, TYC just approved a 2-year contract with a Florida based company, Youth Services International (YSI), for just over $17 million to lease 132 beds in Colorado County at an old TYC unit at Eagle Lake 65 miles from Houston. The recently re-opened unit was shut down after its own bout with sex abuse scandals several years ago after Colorado County DA "Ken Sparks got a 2005 conviction against a female worker for improper sexual conduct with an inmate at a contract boot camp in Eagle Lake. He said the woman, who performed oral sex on the youth, received a sentence of three years of deferred adjudication, meaning she served no prison time," the Houston Chronicle reported last year. The same company that received the contract to run Eagle Lake, YSI, operated the boot camp at the time.

The regionalization plan has already become a source of contentious debate. In order to implement anything besides option one, TYC would need permission from the Legislature to go outside the scope of its bond authority, which authorized only construction of one 150 bed unit in Harris County, not several new, smaller units. Of the four options proposed, I agree with the conservator number two makes the most sense. But because so much funding is involved, the choice is a political decision, not one the conservator can make on the way out the door and expect it to stick.

Those interested in these agency budgets should look through their LARs for yourself and let us know in the comments if you find any interesting tidbits.

Ombudsman: Public schools failed many TYC youth

TYC independent ombudsman Will Harrell yesterday presented a copy of his office's recent report on education services (pdf) at the Youth Commission to an interim hearing of the Texas Senate Education Committtee. (See prior Grits coverage.) In his written testimony, Harrell said TYC's education difficulties originated in the public schools:

The Texas Youth Commission bears a great burden that can be traced back to failures of local school districts. But that is a challenge that the TYC must meet for the sake of public safety.

In broad terms, the OIO has the following major concerns about education in TYC:

• Inadequate intake, assessment and accountability.
• Inconsistent general education programs across TYC facilities.
• Disruption of education by punitive culture and policy which is compounded by race and special educational need.
• Inadequate special education services.

These issues, which are fully discussed in the attached report, are critical for two important but distinct reasons. First, as we point out in the attached report, educational attainment is one of the most effective means for reducing recidivism among delinquent youth. However, the population of students at the TYC does not represent the population of the typical Texas public school. The TYC is charged with providing education and special education services to a population of students comprised of approximately 40% special education students, and a majority of youth who are substantially behind their peers in all academic areas. The population of students at the TYC is not typical of an ordinary Texas public school, and the TYC requires a substantially different level of support than a typical public school district. Despite the fact that many of the youth committed to the TYC arrive with poor academic histories, the TYC education program can improve the basic academic skills of these youth and significantly improve their chances of successful reentry into their schools and / or communities. Providing these youth with essential skills in reading and mathematics, opportunities to obtain a diploma or GED, and vocational skills is critical for helping these youth to become responsible, civic-minded taxpaying citizens. Not only do these outcomes result in improved outcomes for delinquent youth, they also improve public safety.

Second, the youth at the TYC are coming from Texas public school systems, and most should be returning to these schools after release. However, many of the TYC youth have not been adequately supported by their public schools. Most do not have sufficient reading skills to access the high school curriculum, and many do not even have the requisite skills to read or complete a basic job application. Additionally, many of these youth have been repeatedly suspended or expelled, or have officially or unofficially dropped out of school. Furthermore, most delinquent youth both nationally and in Texas come from impoverished communities with schools that lack the financial and professional support necessary to adequately educate these youth. If the State is going to successfully rehabilitate these youth, the Texas leadership must identify and implement innovative and responsive public education programs to support these vulnerable schools and ultimately reduce the numbers of youth involved in the juvenile justice system.

Last week, Grits identified what I think would be a huge step toward discouraging schools from dumping kids with learning disabilities and behavioral problems into the juvenile justice system - charging schools the full cost of educating kids they send to so-called alternative schools for discipline. But as Harrell says, a lot more than that bureaucratic fix is needed. In addition to more resources for special ed programming, substantial investments to identify and teach kids with dyslexia would reduce crime, as would extra focus on ensuring the academic success for children of incarcerated parents. Spending extra resources to help kids succeed on the front end aimed at these special populations makes a lot more sense than waiting to incarcerate them on the back end, which costs far more and from which society derives far fewer benefits.

SEE ALSO: An interview with Harrell from KHOU and these documents related to TYC education services:

• Review of Education Programs for Students in Texas Youth Commission State Schools
• Ombudsman's Statement Regarding the Education Review (pdf)
• Review of Education Programs for Students in Texas Youth Commission State Schools (pdf)
• Conservator Richard Nedelkoff's Response Letter (pdf)

Why wouldn’t innocence 'presumed' by criminal courts be 'actual'?

I'm going to be posting some over at the Innocence Project of Texas' blog (regular readers know I began working for them as a policy consultant a couple of months ago), and wanted to point Grits readers to an item I wrote there about a case of first impression pending at the Austin Court of Appeals regarding whether cases overturned on direct appeal qualify for compensation under Texas' wrongful convictions statutes, see "Splitting hairs on innocence compensaton claims: If unconvicted defendants are presumed innocent, why isn’t that innocence 'actual'?"

The Austin appellate court declared only habeas appeals qualify for compensation, reversing a district court ruling that a defendant whose conviction was overturned on appeal because of insufficiency of evidence could pursue compensation under Chapter 103 of the Civil Practice and Remedies Code. (Here’s the opinion by a three judge panel (pdf); the defense has requested an en banc hearing of the full Third Court.)

At issue: "why shouldn’t the innocence that’s 'presumed' by criminal law be considered 'actual' innocence? Isn’t that a distinction without a difference?" See the full post.

BLOGVERSATION: Scott Greenfield at Simple Justice takes up the question.

House Corrections, TCJC focused on re-entry this week

On Thursday Aug. 21, the Texas House Corrections Committee will meet to gather information regarding three of their interim charges, one of which focuses on facilitating re-entry for ex-prisoners. The Texas Criminal Justice Coalition sent out an email to supporters today containing links to some of the re-entry related materials they'll be presenting to the committee. Wrote executive director Ana Yañez Correa:

On Thursday, August 21, 2008, TCJC will present the findings of an extensive survey of re-entry professionals, titled Practitioners' Perceptions of Prisoner Re-Entry Challenges , at a House Corrections Committee hearing. This hearing will take place at the Capitol in room E2.016 at 9:00 A.M, and it will will address the following interim charges: (1) the use of technology practices that improve efficiency, safety, and coordination of criminal justice activities on the state, local, and county levels; (2) strategies for meeting prisoner re-entry challenges in Texas, including the evaluation of programs with documented success, and the availability of housing and occupational barriers; and (3) an analysis of the Texas state jail system, including original intent for use, sentencing guidelines, and effectiveness, as well as suggestions for changes and improvements in the state jail system.

We will be providing invited testimony on Interim Charge 2. For a preview of what we will be presenting, download the following documents:

• Practitioners' Perceptions of Prisoner Re-Entry Challenges (126 pgs)
• Executive Summary (16 pgs)
• TCJC Testimony (13 pgs)

We would also like to take this opportunity to thank all who offered feedback to us in regards to prisoner re-entry challenges, which provided the basis of our report. We hope that our findings will assist policy-makers in their efforts to stop the cycle of offending by reducing barriers to re-entry and investing in programs and services that promote success for individuals and families.

To learn more about our re-entry program, please log on to www.criminaljusticecoalition.org/tools_for_re_entry.

"It's a dog, it's OK. You can get another one"

Sometimes a few casual words accidentally reveal remarkably callous attitudes in the justice system that participants would never admit to in public.

The classic example may be Texas Court of Criminal Appeals Judge Sharon Keller refusing a last-minute appeal by a condemned appellant with the spurious bureaucratic excuse, "We close at 5." (Even Keller's fellow CCA members criticized her unilateral action in the press).

The national media has latched onto another Texas case where the casual utterances of a law enforcement officer revealed a remarkable lack of empathy for those he's policing. After pulling over a driver speeding to the emergency vet with his dying dog, a San Marcos officer detained the vehicle for 15 minutes on the side of the road, allowing the animal to expire.

The money quote from the officer: "It's a dog, it's OK. You can get another one. Relax." Replied the driver, "It's not just a dog; it's my family." Reported ABC News:

Though Stephens' supervisors found him not guilty of misconduct, they did agree he handled the situation poorly.

"His world was collapsing. And what the officer says to him, basically, is, 'I don't care,'" said San Marcos police department chief Howard Williams.

While I don't think the officer should be terminated over the incident - after all, the driver was allegedly going 100 mph when pulled over - neither do I think he demonstrated much empathy or ability to exercise discretion in an emergency situation.

The dog lover in me would like to see the officer submitted to this authority for retribution, but realistically a better outcome would be retraining or even re-assignment to animal control for a few months. By correctly identifying the officer's error - i.e, reacting to the driver's personal crisis with the message, "I don't care" - then in the same breath declaring the officer did not commit "misconduct," the Chief's statements imply that his department tolerates such attitudes or at least refuses to formally discourage them, which is an unfortunate message to deliver to the public via the national press.

BLOGVERSATION: For a sense of the public reaction, see related posts and comments from Urban Grounds, PetitUSA Blog, the Raw Story, the Dallas News MetroBlog, and Ravings of a Semi-Insane Madwoman. Also, when I last checked there were 1,207 comments reacting to the story on ABC News' website.

UPDATE: TalkLeft adds this pearl of wisdom, though I'm not sure I'd endorse the advice:

Moral of the story: if your dog (or other family member) needs immediate medical attention, don't stop for the police. No jury will convict you of eluding under those circumstances, and your family member is more likely to survive if you don't stop.

TCLEOSE needs more power to investigate police corruption

The Sunset Commission and the Texas Legislature should take to heart two recommendations from the agency staff report (pdf) the Commission on Law Enforcement Standards and Education (TCLEOSE) to improve police accountability and oversight statewide.

First, TCLEOSE asked for its investigators' authority to be expanded (p. 84):

Peace officers of TCLEOSE are empowered to investigate and enforce violations of the Occupations Code 1701, but no other provisions of the Penal Code, which includes such violations as official misconduct, and impersonating a peace officer. ...

Limiting TCLEOSE investigators to violations of 1701 means that, when TCLEOSE investigators discover penal code violations, violations of the Private Security Act 1702, or any other violations of the law other than violation of 1701, TCLEOSE investigators must solicit and obtain timely cooperation from a fully empowered peace officer. Many peace officers find these requests from TCLEOSE troublesome because they have their own priorities and demands, and some do not like the idea of investigating fellow officers. Regardless of the reasons, TCLEOSE investigations and investigators are left with the task of convincing other officers of the importance of investigating their own profession.

It's surely absurd that investigators at the state peace officers' licensing agency cannot look into criminal allegations themselves but must rely on "convincing other officers of the importance of investigating their own profession." Indeed, it's precisely because local cops "do not like the idea of investigating fellow officers," which after all is a pretty common phenomenon, that TCLEOSE investigators should be empowered more broadly.

Similarly, I was encouraged by TCLEOSE's suggestion that the Legislature should create an "integrity unit" to investigate police misconduct in Texas (p. 87):

Because the State of Texas licenses peace officers and jailers, many Texans are of the impression that the state investigates complaints of integrity and alleged wrongdoing. When they look at the state government, they often call, write, or e-mail TCLEOSE with their allegations. If it is an allegation for which we have jurisdiction, i.e., for potential violations of the OC Section 1701, then we investigate, determine the validity, and provide feedback to the complainant. If we do not have jurisdiction, we refer the matter to other agencies such as a local district attorney, a sheriff’s department, a local police department, the DPS rangers, etc. Unfortunately, we find that many of the complainants have already spoken to local authorities and were dissatisfied or found themselves ignored. Perhaps Texas should have an “umbrella” integrity unit at the state level to investigate allegations of police corruption.

I think both these suggestions are good ideas. In an era when revelations about police corruption related to drug crime and Mexican cartels have become a weekly occurrence in Texas, it's time for the state to address the problem of police corruption more directly. Not only would doing so reduce crime overall, if Texas doesn't take this steer by the horns IMO it will be impossible to ever seriously threaten the operation of multinational drug cartels. I recently saw a new law review article making the same point about corruption while arguing for prosecution of so-called police "testilying," arguing that:

the collateral benefits of such increased policing of the police far outweigh the drawbacks. In fact, increased policing of the police would not only have the collateral consequence of reducing crime across the board. It would also benefit the police themselves by leading to safer and better policing.

Let's hope the the Legislature accepts these two TCLEOSE recommendations and beefs up the agency's authority to investigate police corruption in 2009. One imagines the police unions will fight the idea (as they have in the past), but it's really in their interest to clean up the profession - the vast majority of good officers out there don't benefit from protecting bad cops.

For all the hype, few actual abuse cases coming out of the Great Eldorado Polygamist Roundup

At the height of the Great Eldorado Polygamist Roundup, the state claimed 466 kids were abuse victims and dozens of fundamentalist Mormon men were suspected of sexual abuse charges. When the rubber met the road, though we've only seen "four removal requests and last month's indictment of six FLDS members on sexual abuse-related charges," reports the San Angelo Standard Times, while 66 child custody cases have been dropped. Of the six men indicted, one was a doctor accused of failing to report alleged abuse, and one was FLDS prophet Warren Jeffs who was already incarcerated in Arizona. There are still no complaining victims in any of these cases.

The hard truth about the Great Eldorado Polygamist Roundup is that despite all the tough, hang-em high rhetoric and demagoguing by state and local officials, the massive police action probably made it harder, not easier to identify or prevent abuse within the group. It caused Eldorado polygamists to circle the wagons to protect their innocent brethren, and made kids more fearful of the state than of their religious leaders, which means they'll be less likely to speak out when bad things happen.

Part of the problem with the state of Texas' approach to the raid was that officials took the wrong example as their model. They thought they were dealing with another David Koresh like in Waco, but really the better comparison was the Short Creek Raid in 1953 on the Utah-Arizona border. The Arizona Republic on Saturday offered an excellent analysis comparing the Texas raid with its historical antecedent out west, reaching these conclusions:

It's hard to see your way in polygamist country, and the most dangerous pathway through this, says Utah Attorney General Mark Shurtleff, is the one that came before.

Arizona and Utah officials have carefully worked to carve exit routes from Colorado City for those who want to leave. They established the Safety Net Committee to help domestic-violence victims, and on the road into Colorado City, a large billboard now advertises a "safe talk" hotline.

But "if they fear us more than they do their abusers, they're never going to seek help," Shurtleff says. "It's this fear of government they've been taught from the cradle - 'See what happened in '53? If you seek help, they'll come and take everybody.' We keep telling them, 'No, no, no. If someone needs help, we'll handle that one case. There won't be a raid.'

"And now the polygamists are saying, 'See, we told you, we told you it would happen again,' " Shurtleff says.

There's another force at work here, too, a kind of unlikely glory that comes each time the police knock on the polygamists' doors.

Nothing makes a religion like a martyr. The Bible leans on the stories of those who put faith first, who sacrificed their freedom and their families, who laid down their lives for the Lord. Through all their persecution, the polygamists talk of nothing but strength.

"The outside pressure from the government only reinforces their convictions," says [FLDS researcher Ken] Driggs, "reinforces the belief that 'We are God's chosen people, and we are going to be persecuted for living God's laws.' "

In the polygamists' darkest hours, they say, the light shines more brightly on the pathway to God.

In other words Texas blew it, however this handful of prosecutions turns out. Just like in the aftermath to the Short Creek debacle, if there are actual abused kids among the FLDS, Texas ' actions made it more difficult, not easier, for them to get help - and not just in Texas but in other locales.

BLOGVERSATION: Read a different take at Ron's Insanity.

Dallas County scrounging for 'loose change' on jail costs but ignores potential savings from jailing fewer people

The Dallas News in a column titled 'Hits and Misses' (Aug. 16) labeled as a miss this suggestion from Dallas County for making ends meet on the backs of jail inmates:

It sounded appealing, this idea to charge Dallas County jail inmates $25 a day, room and board, on misdemeanor offenses. The problem is, state law provides no consequence for failing to pay – except, we presume, more jail time. When we first heard about this a few months ago, we asked around. The consensus was that it would cost more to hire the people required to collect a jail fee – and chase down deadbeats – than the fee would generate (i.e., a net loss). We applaud the county for looking under every seat cushion for loose change, but this is one idea that should stay buried.

Dallas County already has $200 million in outstanding fines it hasn't collected, so I can't imagine how anyone thinks they can squeeze jail costs out of folks cycling in and out of the jail. Not to mention probation and other fees and costs already put a substantial financial burden on ex-offenders that's a significant barrier to successfully completing community supervision; this would just add to the problem instead of relieve it, worsening public safety for the sake of the short-term bottom line.

If Dallas County commissioners are really that desperate, there are plenty of ways they can reduce jail costs without resorting to strategies that worsen crime and recidivism. For example, at a symposium in San Antonio in February focused on jail overcrowding (see Grits coverage), Marc Levin of the Texas Public Policy Foundation:

suggested that county commissioners could "designate misdemeanors that are non-jailable in that county, which also eliminates indigent defense costs." (See his power point presentation.) No county has taken advantage of that authority, yet, but it's a good idea.

He's referring to the B misdemeanors for which the Legislature last year gave police officers discretion to issue citations instead of arrest in HB 2391. But that's not the only category of arrests which the county could designate as non-jailable.

Class C misdemeanors may make up a bigger or at least significant share of discretionary jail use. I was surprised to learn recently that the majority of discretionary arrests by the Austin Police Department were actually for Class C misdemeanors which carry a punishment only of a fine, not jail time. As I wrote on Grits in reaction to a recent analysis of APD arrest practices by the newly formed group Austin Public Safety Solutions:

... 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.

Of those nearly 16,000 optional arrests, said the report (pdf), 9,902 were for for Class C misdemeanors. The US Supreme Court declared in 2001 in Atwater v. City of Lago Vista, a Texas case, that arrests for fine-only offenses were not per se unconstitutional, but nor were they required. In Austin last year, 9,902 people were arrested and taken to jail for offenses so small-time that a judge could not legally sentence them to incarceration, even if they receive the maximum sentence possible. I don't know if those numbers are similar in other cities, but it wouldn't surprise me.

Given that reality, and since officers have discretion to issue citations instead, if the commissioners court named many of these offenses "non-jailable," as Levin suggests, it would have a big impact. Add to those Class Cs the categories of offenses where HB 2391 gave officers new discretion, and all of a sudden that adds up to big-league cost savings considering how much of the county budget is devoted to the jail.

Necessity is the mother of invention, so when counties are strapped they tend to embrace creative solutions on jails that they wouldn't otherwise consider - some good, some bad. Dallas County shouldn't solve its budget crisis by nickel and diming every department or piling onto the backs of the poorest among us, but by revamping outdated and wasteful uses of the jail. Though the paper says they're "looking under every seat cushion for loose change," by ignoring these options they're doing so while looking past the big stack of money in the middle of the room.

Forensic Science Commission will investigate science behind Cameron Willingham's capital arson conviction

The Texas Forensic Science Commission met in Houston today and voted to take on their first independent investigation involving an alleged wrongful conviction stemming from flawed forensic science - the case of Cameron Willingham, executed for an arson crime in which the arson investigators on the case later admitted they'd relied on flawed science for their conclusions. Reported AP:

A state panel has voted to investigate whether a man executed for setting a fire that killed his three daughters actually started the blaze.

The Texas Forensic Science Commission on Friday agreed to review investigators' conclusions that Cameron Todd Willingham set a fire at his family's home in Corsicana two days before Christmas in 1991. He was executed in 2004.

The commission's decision came after the Innocence Project, a legal group that specializes in overturning wrongful convictions, requested the case be reviewed. Trial evidence suggested an accelerant was used to start the deadly blaze. But the Innocence Project says experts in a report it commissioned concluded the fire was not intentionally set.

This is the first investigation to be conducted by the commission, created in 2005 to look into allegations of forensic misconduct.

For more background on the Cameron Willingham case, see this excellent Chicago Tribune feature analyzing forensic errors and this independent peer review (pdf) of the science in Willingham's case.

More than 800 people are in Texas prisons over arson charges, and dozens if not hundreds of older arson convictions were based on forensic science that's no longer considered valid. Thus the Forensic Science Commissions review of the Willingham case has two-fold importance. Their investigation could lead to proving for the first time that Texas has definitely executed an innocent person - a matter of great dispute among death penalty abolitionists and proponents - and going forward their findings could lead to re-evaluating many other cases where shoddy forensic science led to false convictions in arson cases.

MORE: Read a reaction to the FSC's decision and a prior post on the case in a DailyKos diary from the son of one of the investigators who participated in the above-mentioned peer review. At Talk Left, see also the discussion in the comments between defenders of the original conviction and the Kos diarist. See also coverage from the Houston Chronicle.

See prior related Grits posts:

• College to develop screening processes for vetting old arson cases for bad forensic science
  
• Many arson convictions based on invalid science
• Arson convictions may be next venue for innocence claims

TBCJ finally approves expanded prisoner phone access

AP brings word that the Texas Board of Criminal Justice yesterday finally passed new rules, discussed earlier on Grits here, allowing most TDCJ inmates more liberal access to telephones in prison. Now the contractor just has to install phone infrastructure in Texas' 106 prisons, no small task but one which should be completed within the year. TDCJ originally had hoped the phone installation would be complete by next month, but those deadline have long ago passed. Said AP:

The Texas Board of Criminal Justice has voted to allow prison inmates to use telephones on a prepaid and collect-call basis.

The action Thursday ends the nation's last ban on regular phone use by state prisoners.

Embarq, a Kansas-based communications company, was awarded a seven-year contract to put the phone service into place.

About 120,000 Texas inmates will each be allowed to purchase up to 120 minutes of phone time a month. The privilege will not be extended to an estimated 36,000 inmates with disciplinary problems or gang affiliations, or those on death row.

Currently, most state prisoners are allowed only one five-minute collect call every 90 days.

The new system will allow calls of up to 15 minutes.

Texas is the last U.S. state not to give prisoners regular phone access.

State officials have long feared that "allowing the inmates to have access to telephones could allow them to continue their criminal enterprises outside the prison walls," said Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice.

"There also was a concern that they also would be able to contact their victims. But technology has advanced to a point where those concerns are really no longer valid."

Embarq's proposal includes technology that will allow prison officials to monitor and record calls, except those between inmates and their attorneys.

Calls will be limited to friends and family on the prisoner's approved list of visitors. Calls to victims or their families will be prohibited.

Inmates or their families can prepay for telephone calls at rates of 23 cents for in-state calls and 39 cents for out-of-state calls. Collect calls will be 26 cents and 43 cents, respectively.

International and cell phone calls will not be allowed.

A spokesman for Embarq said the system will be phased in at more than 100 prisons over the next year.

The Texas Legislature approved phone service for prisons last year, with proponents calling the easily granted and retracted privilege "a marvelous tool for discipline." Fees from prisoners and families will pay for the system and generate additional revenue streams for the state:

The company, which handles prison phone contracts in five other states, will keep 60 percent of the Texas revenues generated, with the remainder to be divided between the state's general fund and the Crime Victims Compensation Fund.

This is good news that TDCJ is finally moving forward. Texas may be the last state in the union to offer phone access to well-behaved prisoners, but for my money, better late than never.

Smith County voters ask commissioners, "What part of 'no' don't you understand?"

In East Texas, the "What part of 'No' don't you understand?" Committee formed this week to oppose Smith County jail bonds for the third year in a row. Tyler attorney Jeff Weinstein is the PAC treasurer and another lawyer, Ken Good, produced much of the research on the group's new website. Here's the announcement of the committee's launch.

The voters of Smith County have voted against three separate bond proposals to build a new jail. In 2006, the voters defeated two proposals. In 2007, the voters defeated another proposal. For some reason the Commissioners Court has yet to get the message. The voters of Smith County do not want to build a jail. They have said no to a remote jail. They have said no to a downtown jail that was not integrated with the rest of the county’s facilities and they have said no to a downtown jail that was integrated.

At every turn the Commissioners Court has proven that it is deaf to the wishes of the public. The Commissioners Court has been focused on its own personal agenda and not what the public wanted. This was prominently on display when the Commissioners Court decided to give itself a 40% raise over three years after the first bond election failed. As the public uproar against the raises rose louder and louder, the Commissioners Court dug in their heels and refused to listen. This is the moment we no longer trusted this group of commissioners. ...

This committee was born out of a complete frustration with this Commissioners Court. It appears that they do not trust the public and we know that we do not trust this commissioners court. It is time for us to take back our County Government. It is time to clean house. It is time to elect people who will listen to the voters and not develop secret plans behind our backs. We say enough is enough. We say “What part of NO don’t you understand?” The Commissioners Court has had its say in this election. It is now time for the citizens to respond.

They've even created a blog as part of the site, with an RSS feed and everything!

The last Smith County jail bonds went down by a 68-32 margin. This time they're asking for less money for a smaller project, so that might help proponents a little, but factors mitigating in favor of the opposition are more compelling - particularly the likelihood of a high turnout in a presidential election and the school district putting $125K in bonds on the same ballot.

I'd earlier predicted Smith County is headed for a jail bond rejection hat trick, and nothing I've seen since has convinced me voters will buy into this jail after they've rejected three versions before it. Grits' prediction: Somewhere between 60% and 2/3 of Smith County voters will reject the jail bonds. Again. And then commissioners will put it on the ballot again next year.

NPR Profiles Dallas DIVERT Court

Dallas County's DIVERT Court - one of the oldest drug courts in Texas led by Judge John Creuzot- was the subject of a flattering feature on NPR this morning by Wade Goodwyn that's well worth a listen. Goodwyn described the case of a young woman who failed a drug test while on probation, reporting that in response:

This is where the differences between the philosophy of DIVERT Court and the rest of the Texas criminal justice system become particularly apparent. Instead of kicking Stephens out of the program and sending her off to prison, Creuzot sent her to 45 days of intensive inpatient drug treatment.

Stephens says that changed her life.

Understanding just how close she was to a life of oblivion, Stephens dropped her know-it-all attitude and got serious about recovery. She's been sober ever since, with the drug tests to prove it.

Creuzot says what's different about DIVERT Court is the intense judicial oversight.

"A person who relapses on drugs needs further treatment. Our responses are research-driven," he says.

The statistics back him up. Two studies by Southern Methodist University show that DIVERT Court cuts the recidivism rate by 68 percent over the regular Texas criminal justice courts. For every dollar spent on the court, $9 are saved in future criminal justice costs.

Creuzot says the next step is to expand these courts to include perpetrators of property crimes and to raise the possession limits. Currently, if you're busted with two grams of cocaine, for example, that's too much to qualify. Creuzot would like to see DIVERT expanded beyond first-time offenders.

Creuzot operates his court on the principle that "repetition is the next door neighbor of repentance," and it's hard to argue with results he's produced. Indeed, the DIVERT Court's success and that of other "problem solving courts" has made them cause celebres among quite a few fiscally conservative Republicans looking to stem growing prison and jail costs, reports Goodwyn:

The courts have been so successful that even the tough-on-crime, Republican-dominated Texas Legislature approves.

Rep. Jerry Madden (R-Plano), chairman of the corrections committee, says that instead of worrying about the expanding outflow from prison, he wants to choke off the inflow with DIVERT-type courts.

"We have 157,000 people in the prisons of Texas — that's a lot," he says.

The expanding prison population is a financial red stain spreading across the state's books like the Andromeda Strain, he says. Each new maximum security prison costs Texas taxpayers $300 million to build and $40 million a year to operate.

State officials estimate that unless changes are made, Texas will need 17,000 more prison beds just four years from now. Releasing prisoners on parole is politically untenable — which makes "diversion" an increasingly appealing way to avoid what's looking like a $2 billion invoice.

See Also: Judge Creuzot's website, an evaluation of DIVERT Court recidivism results (pdf), and the cost-benefit analysis by SMU professors (pdf) that found the $9 savings for every dollar spent.

DOJ: Research shows trying juveniles as adults increases recidivism

A couple of readers pointed me to this week to a New York Times editorial making "The Case for Juvenile Courts" (Aug. 13), which argued against state laws allowing juveniles to be tried as adults for serious crime:

This country made a terrible mistake when it began routinely trying youthful offenders as adults. This get-tough approach was supposed to deter crime. But a growing number of government-financed studies have shown that minors prosecuted as adults commit more crimes — and are more likely to become career criminals — than ones processed through juvenile courts.

The editorial takes as a starting point this recent publication from USDOJ, "Juvenile Transfer Laws: An effective deterrent to delinquency?" (pdf), which provides a good summary of the research surrounding whether transferring youth to adult correctional systems reduces recidivism. According to DOJ (p. 6):

In sum, to date, six large-scale studies have been conducted on the specific deterrent effects of transfer. These studies used large sample sizes (between 494 and 5,476 participants), different methodologies (natural experiment across two juris-dictions, matched groups within the same jurisdictions, or statistical controls), multiple measures of recidivism, and were conducted in five jurisdictions (Florida, New Jersey, New York, Minnesota, Pennsylvania) having different types of transfer laws (automatic, prosecutorial, or judicial).

The strong consistency in results across the studies is all the more compelling given that they used different samples and methodologies, thereby providing a degree of convergent validity for the findings. All of the studies found higher recidivism rates among offenders who had been transferred to criminal court, compared with those who were retained in the juvenile system. This held true even for offenders who only received a sentence of probation from the criminal court.

Thus, the extant research provides sound evidence that transferring juvenile offenders to the criminal court does not engender community protection by reducing recidivism. On the contrary, transfer substantially increases recidivism.

Prison privatization ginning up local controversies

It's surprising how many acrimonious local debates are going on right now in Texas over jail and prison privatization. Yesterday I mentioned that McLennan County is lurching toward building a private local jail in Waco in the face of strident opposition, and now I find news of a group in Nacogdoches gearing up to oppose a private prison there that's also backed by local leadership. To judge by a report from the Longview News Journal ("Nacogdoches group plans to step up prison protests," Aug. 13), some folks there are pretty unhappy with the project:

Burton Byrum, a retired business manager for a computer company, drew applause from the crowd when he urged the group to supplement their "passive" protests — such as bumper stickers and signs — with more active demonstrations.

"We've got to affect NEDCO, and the only thing they understand is dollars and cents," he said.

Byrum proposed that COPS members remove their savings from Nacogdoches banks and transfer all their money to banks in Lufkin, such as Angelina Savings, Capital One, Huntington State Bank and Texas State Bank.

The group is also targeting the city and county commissioners, and COPS is going to request a discussion item on the agendas of city and county commissions. Some group members also proposed a boycott of all businesses owned by commissioners.

That's quite a grassroots protest! Their group name, I thought, was pretty clever. It's COPS, which stands for Citizens Opposed to the Prison Site. While the purely NIMBY aspects of the opposition I think are unfortunate, a great deal of the debate in Nacogdoches has centered around whether private prisons benefit or retard the economy and what it may do to the local culture.

Meanwhile in Corpus Christi, the commissioners court is struggling to disengage from their own past experiment as incarceration entrepreneurs. Nueces County two years ago lost a longstanding federal contract to house prisoners locally because the federal marshals said jail conditions had deteriorated beyond their minimum standards.

The loss of their sole customer created a revenue hole in the county budget, and shows how making local government dependent on private prison revenue can easily backfire. One day the money's there, the next day it's not. (Expect the same thing to happen with immigration detention if comprehensive reform is ever passed.)

Now the Nueces jail has passed inspection, but a majority of commissioners don't want make the same mistake of paying to build extra jail space just to re-enter the contract, reports the Corpus Christi Caller Times ("County may not seek to house federal prisoners," Aug. 14):

"Would it make more sense to make room by coordinating with our district judges and whoever puts people in jail, for them to quit putting people there, to make space," [Commissioner] Ortiz said. "If there is room for them, whoever puts them in jail will put them in jail just because there is room for them."

Sheriff Jim Kaelin said late Wednesday that there is no quick way to move state and local inmates out of the jail so that he can move federal prisoners in.

"I don't believe I can house additional inmates without that pod," Kaelin said. "We have done the math. I am at capacity now. I am already working with the courts now, to get as many people as possible out."

Many of the misdemeanor cases already have been moved out of the jail, Neal said. The current population is mostly felony-related, with roughly 750 felons in the county jail Wednesday.

"They are the ones you can't just move out," Neal said.

While Ortiz said the police and judges putting people in jail should slow down, Cazalas said he does not support bringing federal prisoners back because he is unwilling to redo the pod or "kick 50 people back out on the street" who are currently in jail, to accommodate the federal prisoners.

"Long term with the growth in the population here as well, some future court is going to have to contend with the size of our current capacity," he said. "Do we want to put ourselves in the position of focusing on the revenue piece?"

For the record, the Caller Times story overstated the number of felons in the Nueces County Jail. The actual number was 576 felons as of July 1 (pdf), and of those 101 were state jail felons, which are low-level drug and property crimes, not really "the ones you can't just move out." The majority of felony defendants in the jail (332) as of July 1 were awaiting trial, as were 107 misdemeanor defendants.

So if judges in Nueces County or local police agencies wanted to do so (it's not really in the commissioners court's hands), they could take Mr. Ortiz up on his offer to reduce the number of jail inmates to free up room for the federal contract. But the majority on the court is right that such an arrangement should be viewed as an extra, only worth entering into when capacity exists - it would be unwise to make entrepreneurial investments just to get such a small-time contract.

The Caller Times story is full of grave talk about cutting "meat" in the county budget if this revenue stream goes away, but we're talking about a small tax hike at most to make up the difference, plus simply touting the contract total ignores how much Nueces would have to spend to house and guard the prisoners. After all, earlier this year the same reporter was congratulating the Sheriff for reducing staffing costs at the jail, but those costs go back up if they expand to house federal prisoners.

Too often Texas counties have viewed jail privatization as a source of "free money," as in Corpus, without paying attention to related monetary and opportunity costs as well as unintended consequences. In that regard, it's good to see such projects receiving more local scrutiny.

Texas prison guards may get 20% pay hike - TDCJ requests 10.5% overall budget increase

Texas prison guards would get a 20% pay hike if TDCJ officials have their way, reports the Austin American Statesman ("Big raises sought for prison workers," Aug. 14):

Brad Livingston, the prison system's executive director, said the proposal would raise starting pay for correctional officers from $26,016 to $30,179 and the maximum salaries from $34,624 to $42,242. Livingston said the increase would cover staff from correctional officers through wardens.

For parole officers, starting pay would increase from $32,277 to $37,441, and the maximum salary would go from $36,363 to $43,636.

Saying the proposal "will fundamentally address the officer career ladder for the long haul," Livingston said the goal is to continue to reduce the agency's critically high vacancy rate and "reward our employees for their dedication to providing public safety."

Texas prisons have been short of guards for several years, so short that officials within the past year have had to close parts of some prisons. Without proper staffing, convicts have to be kept confined to their cells more than they should be, programs have to be suspended, and conditions inside prisons generally become more undesirable — for guards and convicts.

The shortage of correctional officers reached a crisis point 11 months ago, when the agency had 3,978 vacancies. Livingston said that through July, the shortage had been reduced to 3,040, thanks to a beefed-up recruitment program and incentive pay.

Board Chairman Oliver Bell predicted that the pay increase will help reduce the vacancy rate even more. It will help "retain our current staff, recruit new officers and overall would send a positive message to our employees that we value their dedication to protecting the safety of the citizens of Texas."

Although legislative leaders greeted the proposal warmly, they said it will have to be considered with all the other demands that will face state budget writers come January.

The grand total for proposed raises - $453 million and change. And that's not the only proposed increase stemming from Texas' jam-packed, understaffed prison system:

In addition to the raises, the agency's $6.6 billion, two-year legislative appropriation request also includes an additional $181.1 million for convict health care, $30 million to buy additional video surveillance and contraband screening gear and metal detectors to beef up security, $22 million to make a former Veterans Affairs hospital in Marlin usable for convict health care and more than $10 million to expand treatment programs.

The proposal includes no money for new prisons.

That amounts to nearly $700 million in new expenditures for the prison system, or a growth rate of 10.5% over the last budget. What's more, that assumes a de minimus expansion for treatment programs, but more will be needed to reverse long-term incarceration trends that made the prisons so full in the first place.

It's hard to tell whether even this large a pay hike will resolve TDCJ's 3,000 guard shortfall. Most prison units are in rural areas where the labor market remains limited, and no amount of pay changes the fact that Texas prisons are un-air conditioned in the summer and a distasteful work environment year round. But we already know Texas can't adequately staff prisons at current pay rates, so Livingston deserves kudos for proposing a radical solution.

One factor not mentioned in the press coverage: Last year the Legislature linked Youth Commission employees pay to guards at TDCJ to stop the drain of staff from that agency, so if TDCJers get this raise there will probably be an added expense from bringing TYC up to par.

There will be those who chafe at spending so much on prisoner health care, one suspects, at a time when a quarter or more Texans don't have health insurance. But considering the size of Texas' prison system, we'll probably still be underspending after the increase. If one day the feds step in and force the state to fully live up to its constitutional obligations on inmate healthcare, those costs could balloon very quickly like they have in California.

Texas has long enjoyed an artificially low overall cost per inmate compared to other states and these proposed increases are just beginning to address those historic deficiencies. It's not so much that base costs have increased, but Texas must also pay the piper for obligations the Legislature shortchanged for many years.

The other options, of course, for those who dislike the expense, would be to criminalize less stuff and incarcerate fewer people.

Judge Updates Tyler Jail Vote History

Today the Smith County Commissioners Court is scheduled to set yet another jail bond vote for the November election, making the third such request to the voters in just three years. The last two proposals failed ignominiously at the ballot box, but commissioners hope a scaled down version billed as "Phase One" will pass muster, even though $125 million school bonds will appear on the same ballot.

It takes a lot of chutzpah to lose jail bond votes by such wide margins then put the thing back on the ballot. With Lorrie Morgan, local jail opponents wonder "What part of 'No' don't you understand?" Much of the disapprobation stems from opposition to rising local tax and fee burdens, combined with a continuing backlash against commissioners for voting to raise their own salaries. The county projects the new jail will boost property taxes more than 8% just to pay for the building, not including staffing costs and expenses from housing prisoners.

I received an email this week from Tyler District Judge Cynthia Kent who graciously responded from her vacation - at her oldest son's wedding, in fact - so I appreciated her taking time out to contact me. She'll have more to say on the subject of the jail, she declared, upon returning from her holiday, but in the meantime sent along the following historical timeline regarding Smith County's jail. The first part was published last year in the Tyler Morning Telegraph, and the last portion the Judge herself added, updating the timeline all the way to the setting of today's hearing.

JAIL TIMELINE
Oct. 1855: The Smith County grand jury finds “spiritous liquors are kept and sold by a good many citizens” and recommends building a jail.

Aug.1856: Commissioners plan for jail that “shall contain two prison rooms and a suitable apartment for the jailer” not to exceed $8,000.

Feb. 1880: Because of overcrowding, the county stops accepting Tyler’s prisoners.

June 1880: A company is hired to build a jail on East Erwin for $11,239.

July 1881: Commissioners order the sheriff to repair “the hole in the wall of the new jail made by the escaping prisoners.”

Feb. 1915: The grand jury cites unsafe and unsanitary jail conditions.

July 1915: Commissioners accept a bid to build a new jail on Spring Avenue for $45,000. This jail serves needs for nearly 40 years.

Feb. 1954: Work begins on a courthouse on the square which will have jail space on the top two floors.

1973: Plans to add a seventh floor to the courthouse for more jail space is rejected.

1977: Texas Commission on Jail Standards (TCJS) cites the jail for non-compliance.

1979: Plan for a courthouse annex that includes jail space is abandoned.

May 1981: After a class action suit is filed on behalf of inmates, U.S. District Judge William Steger takes over supervision of the jail.

June 1982: Voters reject an $11.5 million jail plan.

July 1982: Steger appoints a jail task force and tells them that “since the people have spoken by their vote, it therefore is incumbent upon the Court to take action to seek a solution.”

Jan. 1983: Voters approve an $11 million plan to build a 264-bed jail on Elm Street, projected to meet needs for 20 years.

Sept. 1985: On the day the jail opens, it is full. Within two years, it is in trouble for overcrowding.

June 1988: Commissioners accept a $1.33 million bid to build a 246-bed minimum security jail just north of Tyler.

July 1989: Commissioners enter a 15-year agreement with the U.S. Marshals Service to house up to 50 federal prisoners in return for $100,000 in federal funds for jail improvements.

1994: A 192-bed medium security expansion at a site north of Tyler is opposed by some residents who unsuccessfully sue to block it.

Sept. 1997: Steger ends his supervision, saying the jail meets standards.

Jan. 2002: The jail is again cited for jail overcrowding.

Nov. 2002: At the Smith County Jail Committee’s first meeting, Sheriff J.B. Smith warns that TCJS could force prisoners be sent to other counties.

Nov. 2002: Jail Committee recommends a $40 million, 1,500-bed criminal justice complex be built north of downtown. No action is taken.

Nov. 2003: With inmate population 100 over capacity, TCJS warns the county to take immediate steps to alleviate overcrowding.

December 2003: The jail fails another inspection due to overcrowding.

May 2004: After TCJS mandate, the county starts sending inmates to Bowie County, at a cost of $40 per day, per prisoner. The cost is estimated to be upward of $1 million per year.

May 2004: A new Jail Committee recommends an $85 million, 1,464-bed criminal justice complex be built. Commissioners say that could lead to as much as a 40 percent tax rate hike and look into privatization.

June 2004: Commissioners hire a consultant who says the county could save money by letting a private firm build and run a jail.

March 2005: The Jail Committee reviews proposals from private firms who want to build the jail, but also examine the traditional design-bid-build route.

April 3, 2005: Commissioner Don Pinkerton dies in his sleep the night before he is to propose building a new jail in the traditional manner, to be run by the county. The price tag was to be between $50 and $60 million for a 912-bed facility.

May 2005: Regrouping with a new member of the court, commissioners turn back to the privatization option.

July 6, 2005: Commissioners vote to hire the private firm Corplan to begin the design phase for a $53.8 million “criminal justice center,” to include a jail.

July 12, 2005: Upon learning of legal trouble Corplan has in Willacy County, involving bribes to county officials, Smith County commissioners reject Corplan’s proposal and start over with a new Request for Proposals.

Oct. 2005: Citizens concerned that commissioners planned to move the jail outside of downtown form the Master Plan Resource Committee to demonstrate the viability of a downtown location. Local experts in real estate, development, design and land use volunteer their time to develop two options for commissioners to consider. When Option South and Option East are presented in court, commissioners respond with a polite “thank you” and no questions.

Nov. 2005: A new round of RFPs results in commissioners tapping Lee Lewis Construction and Wiginton Hooker Jeffrey Architects to build a new jail.

Jan. 4, 2006: Commissioners pick a remote site, near the northeast corner of Loop 323, for the new jail.

Jan. 23, 2006: Faced with public opposition to the remote site and a very vocal call for a downtown jail, commissioners agree to examine a “downtown option” as well.

Feb. 2006: The private firms designing and pricing the remote and downtown facilities report back with price tags of $73.4 million and $90.9 million, respectively. The downtown price is eventually scaled back to $83 million.

March 2006: Commissioners opt to put both facilities on the May 13 ballot — each proposition will require a majority of “yes” votes to pass. Commissioners begin a series of sparsely attended public hearings.

April 2006: The No No Committee forms to oppose both jail bond proposals; members cite a lack of trust in commissioners and the lack of a master facilities plan.

May 13, 2006: Voters soundly defeat both jail propositions; the downtown jail failed 36.56 percent to 63.44 percent, while the remote jail failed 13.58 percent to 86.42 percent. Even though the “yes” votes were split between two options, more people voted against any new jail (6,378) than for a new jail (5,413).

June 2006: Commissioners put together a new, broader jail committee — including members of “No No” — to try to get the jail expansion efforts back on track. Meetings break down, and by the end of the month the group is disbanded.

July 2006: A new, smaller committee is formed, though critics refer to it as County Judge Becky Dempsey’s “Yes Ma’am Committee.” It meets throughout the summer to hammer out details for a new jail bond package. Incoming County Judge Joel Baker declines to serve on the committee.

Nov. 2006: The new committee, formally dubbed the Smith County Buildings Task Force, recommends that a jail plan be developed in conjunction with a master facilities plan, and that the firm Carter Goble Lee be picked to develop both. Commissioners agree, and the county begins negotiations with CGL on the price and scope of the work.

Feb. 2007: Judge Baker, now on the court along with new Commissioner Bill McGinnis, agrees that negotiations with CGL should continue, and that a May bond election is not a realistic goal.

Sources: Tyler Paper, The Chronicles of Smith County, Smith County Historical Society, local attorney Randy Gilbert. Reporter Kenneth Dean covers police, fire, public safety organizations and Roy Maynard covers county government and politics for the Tyler Morning Telegraph. They can be reached at news@tylerpaper.com

Tyler District Judge Cynthia Kent adds these updates to the timeline:

November 2007 - Jail Bond proposal on ballot for a $125 million jail and court support building - Proposal fails by 68% of the vote

Spring 2008 - Judge Joel Baker, Commissioner Jo Ann Fleming, State Senator Kevin Eltiffe, and private businessman Ben Curtis meet together privately without posting any public meeting notices and put together a $59.6 million proposal jail bond plan for building an additional 694 jail beds in Smith County.

August 2008 - Judge Joel Baker and Commissioner Fleming go public with the formulated plan after Mr. Ken Good files an open records request for any materials submitted to Texas Jail Standards Commission for approval of a new proposed jail in Smith County.

August 2008 - Judge Joel Baker and Commissioner Fleming hold several hastily called private and public meetings (without posting any open meeting agenda notices) to present what Commissioner Fleming called "Phase One of the Commissioner's Jail Plan" to be put on the ballot in November 2008, calling it a "Bare Bones Jail."

August 10, 2008 Judge Baker issues a public notice that on Thursday, August 14, 2008 the Smith County Commissioners will hold a meeting to vote on calling a November 2008 Jail Bond Election.

A couple of items here jumped out at me, particularly the prohibitionist origins of Smith County's first jail. To this day Smith is a dry county - you must drive about 30 miles from Tyler to either Kilgore or Coffee City to get to the nearest liquor store - so it's pretty interesting to learn that the very first Tyler jail was built because officials learned that "“spiritous liquors [were] kept and sold by a good many citizens."

Equally interesting to me, though William Wayne Justice was the Tyler-based federal judge best known for overseeing Texas' state prison litigation in the infamous Ruiz case, it was the late Judge William Steger, the first modern GOP gubernatorial candidate in Texas and a conservative stalwart, who similarly supervised the Smith County Jail via court order for 16 years (1981-'97) following a class action lawsuit by inmates.

History teaches us, said Hegel, that man learns nothing from history. In 1983, Smith County voters approved a new jail that officials said would meet the county's needs for 20 years, but it was full on the day it opened two years later. Judge Kent predicts the same thing will happen if Smith County builds another jail now and urged commissioners to learn from that experience, proposing instead a long list of alternatives to reduce jail overcrowding. But that good advice apparently won't stop the commissioners court from plowing forward, irregardless of history or voters' clearly expressed preferences in the last two jail elections.

McLennan Commissioners back on private jail track after raucous debate

In Waco, McLennan County's on-again, off-again private jail plan is back on after a contentious, 3-2 commissioners court vote yesterday, reports the Waco Tribune Herald ("McLennan County Commissioners approve hiring company to build additional jail," Aug. 14).

Commissioner Joe Mashek argued McLennan County didn't need three jails, that they should simply take over the facility downtown presently operated by a private prison company. “It was the rush and the big hurry in the way we did it that I don’t like,” Mashek said. “When the jail standards commission tells us that we will only need room for 1,200 prisoners by 2015 and we have jails that hold 1,261 inmates now, why are we building a new jail?”

Good question.

Another good question was raised this week by our friends at the Combined Law Enforcement Associations of Texas (CLEAT), the state's largest police officers union, which accused the Sheriff of promoting the privatization scheme because of a personal financial motive:

The company’s McLennan County contract, which pays [Sheriff Mike] Lynch $12,000 above his county salary of $88,000 to oversee the downtown jail, expires Oct. 1. ...

[CLEAT legislative director Charley] Wilkison said he will ask Texas Attorney General Greg Abbott to investigate whether Lynch violated the Texas Public Information Act by failing to respond to CLEAT’s open-records requests for all correspondence between Lynch and CEC officials.

He said he also is seeking state and federal investigations about whether Lynch lawfully and ethically can accept money from the private vendor or whether it is a conflict of interest when he helps decide the fate of the jail system.

“The sheriff has taken $91,000 of personal money that goes into his bank account, and then he says: ‘I am still able to decide. I am still OK deciding whether it is in our best interest to privatize.’ That old dog won’t hunt. Nobody here believes that.”

Wilkinson and I have disagreed over the years more often than we're on the same page, but from my own analysis I tend to agree with the CLEAT stalwart about the current cause of McLennan's jail overcrowding problems:

Wilkison also charges that county officials should come up with more efficient ways to clear out the jail, especially of nonviolent first offenders. ...

“We think inmates are being kept in jail to create an artificial public safety crisis so the hue and cry for a new jail can come and the new jail can be privatized and built by CEC,” Wilkison said.

Certainly it's true McLennan County has not aggressively pursued incarceration alternatives or jail diversion programs, instead fixating solely on prospects for more jail building. They don't necessarily need a new jail, but some commissioners really, really want one.

Finally, I was interested and curious to see that the vendor chosen, private prison operator CEC Corp., promised to house inmates at an astonishingly low rate of about $25 per day, about $15-20 below what it cost most counties and other contractors to operate a jail. Likely they're hoping to make up the difference by housing high-dollar federal immigration detainees, but that's a speculative bet on the future, not a sure thing. I have to wonder if the $25 per day figure is a real, sustainable number or if it will increase once the jail is built and the charges become a fait accompli.

Unlikely Allies: Victim's daugher, convicted murderer, team up to challenge Williamson DA in DNA testing request

I meant to mention this last week when the story came out, but a Williamson County case shows how the vicissitudes of DNA testing can make for some awfully strange allies. Reported the Houston Chronicle ("Lawsuit seeks DNA test in two murders," Aug. 6):

The daughter of a 1980 murder victim and a man convicted of killing his wife in 1987 have asked a federal court to force Williamson County to release evidence from both crimes for DNA testing.

Pat Stapleton, 75, who discovered her mother's battered body, says she hopes the results lead to Mildred McKinney's killer.

Michael Morton hopes the tests will help overturn his life sentence in the death of his wife, Christine.

Both women were beaten to death in the ransacked bedrooms of their Georgetown homes, which were about a half-mile apart. Both were attacked so severely in their beds that blood splattered nearby walls. And both bodies were covered by household items — the 73-year-old McKinney by a reclining chair, small table and vacuum cleaner, and Morton by a suitcase, bedding and a wicker basket.

"I'd like to know that whoever is responsible is in prison or has been executed, and that all this can end," Stapleton said.

Morton spent years asking state courts to allow DNA testing in his case but has not been able to force Williamson County to make evidence available from the McKinney murder.

Lawyers from the Innocence Project in New York say they hope filing a lawsuit in federal court will break the impasse.

The Innocence Project, which helped file the lawsuit, would cover costs of testing.

"For more than three years, the local prosecutor has fought DNA and fingerprint testing that could prove Michael Morton's innocence and finally solve both of these crimes," said Innocence Project Co-Director Barry Scheck. "Patricia Stapleton and Michael Morton come from very different backgrounds, but they have a common goal to use science and every available law enforcement tool to finally reveal the truth in these cases and find justice for their loved ones."

In an era when we've seen so many DNA-based exonerations, I can't imagine Williamson DA John Bradley's justification for not acquiescing to DNA tests, particularly when the victim's family is demanding it. His office doesn't even have to pay for the procedure.

Mr. Bradley is one of those prosecutors who routinely waves the Victim Rights flag whenever he wants to justify whatever egregious legal overstep he's most recently undertaken. But when victim interests might cause him to investigate whether his office made a mistake, suddenly he's not so pro-victim after all.

In perhaps the gravest irony, demonstrating Mr. Bradley is simply out of touch with the issue, the prosecutor opined that "the public might want to remain skeptical of a defendant who to this day doesn't accept responsibility," ignoring the fact that the defendant is claiming the DNA will prove actual innocence! Why should he "accept responsibility" if he didn't do it?

I don't know how the DNA test will turn out and have no way of knowing whether or not Mr. Morton committed the crime. If he did, the DNA should prove it once and for all. But there's just no excuse for a District Attorney simply not wanting to find out, especially when untested evidence exists and the victim's family isn't satisfied they got the right guy.

More at Eye on Williamson County.

Feds: Dallas jail healthcare still not up to snuff

I'm not sure how I missed a new report (pdf) from the feds last month about improvements and deficiencies at the Dallas County jail, but the story by Kevin Krause at the Dallas News ("New report finds Dallas jail improved but still falling short on health care," July 22) contains a good analysis of what's been accomplished at the jail and the mainly healthcare related shortcomings USDOJ says they still need to address. Perhaps most disturbingly:

Mentally ill inmates are inappropriately locked in their cells for 23 hours a day, because of staffing shortages and lack of space for "out-of-cell time," according to the report.

In the mental health category, other problems reported were a difficulty in tracking patients, lack of privacy, inadequate staffing and a lack of adequate space to conduct mental health evaluations.

That said,

The report highlighted several areas of improvement, including jail maintenance response times, the cleanliness of laundry, and a training program to help jail guards recognize and respond to health emergencies.

In addition, there is now excellent leadership of health operations, the jails are on a "steady foundation of funding," and clinical staffs are of high quality, the report said.

However quite a few areas still needed upgrading; here's Krause's summary:

• Difficulty tracking patients' medical needs.

• Lack of privacy during medical screening.

• Lack of follow-up for inmates returning from the hospital.

• Inadequate fire safety systems in all five jails, including broken or inadequate alarm systems in four jails.

• Slow response to inmate sick calls.

• Use of dirty mattresses that can no longer be cleaned and should be thrown out.

• Improper use of chemical cleaning agents by inmates.

• Lack of dedicated sanitation officers.

Inevitably these criticisms of the jail will be thrown into the political fire this fall, and rightly so, though I'm not sure Republican Lowell Cannady would do any better - he's a former Dallas police supervisor and Irving police chief who's never worked in a jail and brings no experience in correctional health to the table.

It's little secret that Dallas County Republicans view Sheriff Lupe Valdez as the weakest down-ballot candidate they have a chance to unseat; if she's vulnerable, it's because of how she's managed the jail. She's been there a full term and it's time to own the problems; after four years she can no longer blame them on her predecessor, even if they did exist before she got there.

In such a high-turnout election with a popular Democratic presidential candidate above her on the ballot, I personally think Valdez's vulnerability may be overstated. But the stakes are high on many levels and if more voters split tickets locally because of the Sheriff's race, GOP leaders hope they can stifle Democratic gains among Dallas judgeships from the 2006 election, possibly even creating an electoral roadmap for challenging popular District Attorney Craig Watkins in 2010.

One problem with this blame game in the Sheriff's race is that funding from the county commissioners court - not any decision the Sheriff makes - remains the primary barrier to fixing problems like inadequate staffing to manage mentally ill inmates.

Dallas isn't the only Texas jail facing similar problems managing mentally ill or sick offenders in the face of staffing shortages, but they're the only one with the USDOJ looking over their shoulder waiting to force them to fix things with a court order. The Supreme Court has long declared counties are constitutionally required to provide healthcare to those in their jails. If Dallas won't pony up for adequate carceral health care services, I wouldn't be surprised when one day soon a federal judge steps in and takes the decision, not to mention control of the cost, entirely out of their hands.

Judge seeking employment options for felony probationers

Austin District Judge Charlie Baird believes probation works better than prison for many offenders, but says the key for their success is getting and keeping a job. Reports Steven Kreytak at the Austin Statesman ("Judge takes active role in lives of probationers," Aug. 13):

Judge Charlie Baird says that for the more than 1,800 people on probation in his court to turn their lives around and stay out of jail, they need a job.

But getting one is not easy for people with criminal records, said Baird, a second-year state district judge in Travis County who thinks, sometimes to the dismay of prosecutors, that probation, and not prison, is appropriate in many cases.

Baird last week began the county's first in-court effort to link people on probation with counselors who could help them find jobs. On Aug. 6, he called to court about 25 people he had previously sentenced to probation and ordered them to meet with City of Austin counselors in rooms adjacent to his courtroom. Most of them had been convicted of drug crimes; none was a violent offender, Baird said.

"The best anti-crime program is a job," Baird said.

When people come before him because of parole violations, he said, "the dominant factor is they don't have steady employment. That leads to depression, drugs, drinking too much, hanging with the wrong crowd."

Judge Baird essentially is undertaking a one-man experiment in stronger probation practices, using probation instead of incarceration for most offenses but intervening more directly in individual cases so probation doesn't become a joke:

Baird often calls probationers back to court after they have violated the conditions of their probation but rarely sends them to prison. Most violations are minor, such as failing to pay probation fees or meet with a probation officer, he said. He uses those settings to speak with the probationers, asking them about their lives and what they need to be successful. He looks them in the eyes and calls them by name.

He sometimes offers a reward — cutting the term of their probation or the fees they must pay — for successes such as getting a high school equivalency certificate or a job.

He has asked friends if they would be willing to hire ex-offenders. And last year, he began sending a few people from his court to a City of Austin program designed to help people transition out of poverty. The program offers job training and counseling and seeks to solve other problems such as a lack of transportation or presentable clothing.

Martin Harris, director of the federally funded program, offered to take counselors into the courthouse so probationers would associate the program with their sentence and feel compelled to follow through. Baird plans to host counselors and probationers once a month for several months to see if the effort makes a difference.

This blog has long considered finding employment for probationers a huge barrier to reducing crime and recidivism. Indeed, if I had my druthers, employment status of their charges would be a primary outcome measure by which probation officers are evaluated and departments are funded - same goes for parole.

That said, employment alone is not a silver bullet for every offender, and Travis County has been investing in other evidence based approaches that complement Judge Baird's job hunt.

Geraldine Nagy, director of the Travis County adult probation department, said employment is "an important piece to the puzzle" and lauded Baird's efforts. She said some of her probation officers are being trained as employment counselors, but her department puts much of its resources toward what she considers the most effective ways of reducing future crime: substance abuse treatment and classes designed to alter anti-social thinking.

A 2006 report by the Washington State Institute for Public Policy says drug treatment reduced by 12.4 percent the recidivism rates of offenders with a history of drug involvement. The report, which combined the results from almost 300 studies done since 1970, says programs designed to alter criminal thinking reduced recidivism rates from 8 percent to 31 percent, depending on the type of offense committed.

Employment training and job assistance for offenders reduced recidivism rates 4.8 percent, "a modest but statistically significantly reduction," the report says.

Here's the Washington State report on recidivism and probation programs (pdf) the article referenced. I was interested to read those statistics and a little surprised the recidivism reduction from employment appears lower than other approaches. But IMO such analysis would be misleading if it caused officials to think finding employment isn't as important as other strategies, because at the end of the day finding and holding a job is the key to stability and normalcy.

Here's hoping Judge Baird's employment experiment succeeds swimmingly and that other jurists follow his lead.

Schools vs. Jails on Smith County ballot this November

The Tyler Independent School District voted today to put nearly $125 million in school bonds on the November ballot, reported the Tyler Morning Telegraph, while Smith County commissioners on Thursday are expected propose yet another jail bond on the same ballot after jail proposals overwhelmingly failed in each of the last two years.

After two blistering defeats, expect this third jail bond proposal to have a particularly rough ride. I'm hearing through the grapevine that opposition is already organizing behind the scenes, and there are rumblings of possible litigation because the jail plan was concocted behind closed doors, possibly in violation of the open meetings act.

Not only that, the Presidential election will likely spawn exceptionally high voter turnout, which bodes particularly well for jail bond opponents. Indeed, if we may judge from the primaries, Sen. Obama's presence on the ballot could dramatically boost turnout in minority-dominated North Tyler precincts that overwhelmingly opposed jail expansion the last two times.

Putting the school bonds on the same ballot are like a gift from God to jail opponents. Voters who're concerned with rising tax burdens may view the two proposals as a choice, not a checklist. Assuming the school bond package is palatable (and I know nothing about it beyond today's newspaper coverage), maybe jail bond opponents should consider running with the slogan, "Schools Not Jails." If that choice becomes explicit - especially given the last two landslide jail bond failures - I think I can guess which way Smith County would go.

Do Limestone and McLennan Counties need three jails apiece?

Counties currently looking to build speculative jails to generate revenue should look to Limestone County to see the Catch-22 that decision places them in. Reported the Mexia Daily News on July 22 (pronounced "Ma-Hay-Uh' for you foreigners):

“The Limestone County jail population continues to soar. The population this year is exceeding all expectation,” County Judge Daniel Burkeen said this week.

Part of this is due to growing jail populations per capita everywhere. And part is likely due to the fact that Limestone County is growing. The result is increasingly expensive for the Limestone County taxpayer. Limestone County’s jail is less than half the size needed to hold the current jail population, much less any additional growth, the Judge explains.

“Last year we optimistically increased the budget for housing inmates outside our jail from $300,000 to $400,000,” pointed out Judge Burkeen. “We are already well over that number, and the fiscal year isn’t over until the end of September. We are looking at having to budget between $800,000 and $1,000,000 for the next year. Our jail population now stays well above 100 inmates.”

The extra inmates are a double whammy for Limestone County. Many of the male inmates are housed at Limestone County Detention Center, a source of revenue for the county. So each inmate housed there takes up a revenue bed, costing the county around ten dollars per inmate per day in revenue. “As Bell County Judge Jon Burrows and others around the state have noted, paying to house inmates elsewhere will ‘bleed a county to death’,” Burkeen emphasizes.

So how did Limesone County wind up here? By making the same mistake years ago that Judge Burkeen wants to pursue now - building an entrepreneurial jail.

In Waco, McLennan County commissioners face a similar dilemma over whether to build more jail space when the county already owns a second jail being leased to a private contractor. McLennan commissioners recently rejected the idea of a new private jail, but still must decide whether to build a new one or take over currently leased beds. The same can be said of Limestone County as McLennan, to quote the Waco Tribune editorial board:

This is not because we don’t have the space. It’s because commissioners saw a better use for the downtown jail eight years ago. That purpose has been eclipsed.

Both counties built jails in the past on the speculative assumption that incarceration rates would continue to increase at the same rates as in recent years, a betting position that was bolstered substantially by the current boom in private immigration detention beds. Admittedly, for the last thirty years that's been a pretty sure wager. But immigration policies can change and high incarceration rates in the United States are an anomaly compared with the rest of the world, not a long-term inevitability.

For tiny Limestone County to ship prisoners elsewhere or build a third jail when they could just use the two they've got defies common sense. And if long-term trends don't go just the way they expect, the economics of the deal may not turn out as sweet as described, either.

Counties should focus on the jail cells they need and stop trying to become mini-private prison entrepreneurs. It not only creates bad incentives for government actors but it's a riskier financial proposition today than it was 10-15 years ago.

Fort Worth seeks to reduce homelessness while Austin just wants to cover it up

Cities spend a lot of money because of homelessness, whether it's to lend a helping hand or to sweep the problem under the rug.

Two Texas cities - Fort Worth and Austin - are taking decidedly different approaches to the problem. In Fort Worth they're pursuing long-term strategies. Remarks J.R. Labbe at the Startlegram:

Fort Worth, which is "home" to about 80 percent of the county’s homeless population, has a realistic plan for dramatically decreasing the number of the chronically homeless within a decade.

"Directions Home" is not pie-in-the-sky. It’s not, as naysayers and folks with hearts the size of chickpeas continually complain in anonymous voicemail messages on my office phone every time I write about this topic, a waste of time, money and energy.

Major urban cities across the United States have demonstrated that it’s possible after they developed and adopted 10-year plans based on providing permanent supportive housing — a place to live that comes with the health and social services needed for people to regain their dignity and their purpose.

It also costs less than the way most communities approach the challenges — perpetuating lives of misery by giving "those people" free meals and clothing, but not the security and services necessary get off the streets permanently. This approach results in everyone paying the costs of expensive emergency response, medical bills and, too often, jail time.

Retail giant Walmart and the United Way are backing the Fort Worth project with charitable donations, but:

Now the ball bounces into the Fort Worth City Council’s court. On Tuesday, it begins the hard task of adopting a 2008-09 budget. Money’s tight this year, and the council has tough decisions ahead. But Moncrief left little doubt during Tuesday’s celebration of the plan’s adoption, which featured the nation’s homelessness czar Philip Mangano as the keynote speaker, that he intends to push his council colleagues to approve the $3 million earmarked for the first year of the 10-year plan.

In Austin, by contrast, which enjoys the stereotype if not always the reality of being a much more liberal city than Fort Worth, city leaders prefer to throw good money after bad pursuing short-term aesthetic goals instead of long-term economic ones. The Daily Texan reported:

The Downtown Area Command will use about $150,000 in overtime funds to employ 24 additional officers per week until the end of September as part of the new Downtown Quality of Life Enhancement Initiative, said APD Commander Chris Noble. ...

"[The initiative is] not about taking care of people; it's not protecting their rights," [Debbie Russell of the ACLU] said. "It's simply about cleaning up the streets and making downtown more valuable for incoming residents to move in and to drive up the prices so that everybody is priced out."

During the first three days of the initiative, Noble said there had been 80 arrests made up of misdemeanor citations and custody arrests. Among the arrests and citations were six for drug paraphernalia, one for public intoxication, five for sleeping in a public place and 14 for sitting on the sidewalk.

Austin may be a "liberal" town considering only a few hot button culture war questions, but when it comes to aiming the community's criminal justice machinery at harassing the least among us, no city in Texas has Austin beat. If you're homeless and are sitting on the sidewalk or sleeping in a public place, after all, it could well be because you have no place else to sit or sleep. "Out of sight, out of mind" is the goal of Austin's policies, while Fort Worth actually seeks to improve the situation for the long-term, not just waste taxpayers' money on a short-term publicity stunt.

Especially considering a significant proportion of homeless people who routinely commit petty crimes are mentally ill, simply banishing the problem won't resolve it. Indeed, given federal disability protections the approach may even have straight-up civil rights implications. More important than liability, though, the strategy won't solve the problem. More arrests and tickets can't reduce homelessness, but actual homes can - particularly when coupled with help finding a job and case management to address chronic physical and mental health problems. That's why IMO Fort Worth's approach is more likely to succeed.

The Directions Home initiative in Fort Worth began with a $125,000 corporate donation. By contrast, the $150K for police overtime in Austin will be frittered away in a couple of months with nothing to show for it but an overcrowded jail full of petty misdemeanants. Not only that, the extra spending comes at a time when the city is cutting library services and raising garbage fees to pay for extra police raises. That makes little sense.

In Fort Worth they're making an investment in solutions, while Austin's policy prioritizes appearances over substance. But hey, at least Austin has the highest paid cops in the nation to go out and harass folks for sitting on the sidewalk - that's gotta count for something, right?

Private Prison Tents in West Texas?

Bob Libal at Texas Prison Bidness has several excellent recent posts up that deserve Grits readers attention:

• More Private Prison Tents in West Texas?

• Questions Remain About Conditions for Texas Detainees Evacuated After Hurricane Dolly

• No New Private Jail in McLennan County: Will County Take Back CEC/Civigenics Jail

• Waco Tribune Editorializes Against New Jail

Relatedly, a couple of readers emailed to ask what happened to the links to other blogs in Grits sidebar. The answer is that I was updating them last week for the first time in way too long and royally screwed up the html - inexplicably so, by all appearances. I haven't had time to go back and figure out what went wrong, but will get 'em back up as soon as I can.

Prosecution of "replaceable" cartel smugglers fail to reduce I-35 drug trafficking

Guilty pleas last week by drug traffickers working for Los Zetas, the enforcement arm of the Gulf Cartel drug trafficking organization, offer rare insight into the mechanics of drug smuggling up and down the I-35 corridor, the Dallas News reports ("Traffickers used I-35 buses to get drugs to Dallas, court records show," Aug. 11):

Raul Castillo, 31, and Jorge Rodriguez, 21, pleaded guilty a week ago in Laredo federal court to charges that they moved up to 600 kilograms of cocaine a week to Dallas between March 2007 and February.

After they were arrested this year, the two Laredo men admitted to federal agents that they worked for Miguel Treviño Morales, a fugitive who is the reputed commander of the Zetas in Nuevo Laredo, Mexico.

Authorities say that locally, a kilogram of cocaine goes for about $25,000, meaning these men are responsible for well over a half-billion dollars worth of narcotics moving up I-35. ...

Mr. Castillo and Mr. Rodriguez both face up to life in prison and more than $4 million in fines.

Five other men also have pleaded guilty in the case: Roberto Camacho, 22, Arturo Palencia, 21, Gustavo Fabian Chapa, 22, and Rene "Rana" Garcia, 29, all of Laredo; and Eduardo "Negro" Carreon-Ibarra, 24, of Nuevo Laredo. Some of them admitted taking part in murders and attempted murders in South Texas.

Court records do not link the five to Dallas-area activity. Two other people allegedly worked with Mr. Castillo and Mr. Rodriguez on the Dallas connection, but their names remain sealed while authorities try to arrest them.

According to court papers, Mr. Castillo and Mr. Rodriguez admitted that they used El Conejo and Turimex passenger buses, as well as tractor-trailers, to transport the drugs from Laredo to Dallas.

When tractor-trailers were used, the men told authorities that they would meet the northbound rigs at a truck stop near Waxahachie. They would take the drugs to a nearby warehouse to a man identified in court papers only as Guero.

Using buses is more complicated, the man told authorities.

Once an El Conejo bus crossed the border into Laredo, the men would wait for it to exit I-35 about four miles inside the city and stop at a restaurant to let passengers eat, court documents say. While everyone was inside the restaurant, Mr. Rodriguez and an accomplice loaded the bus with suitcases brimming with bundles of cocaine.

Mr. Rodriguez and Mr. Castillo would then follow the bus in separate vehicles to Dallas. Mr. Rodriguez would then take the bundles to a stash house in Irving.

When they used Turimex buses, the men would first put cocaine-laden suitcases in a Nissan Xterra, then leave it, locked, at a bus station in Laredo. They would leave the vehicle's keys in the fuel door, and, according to court papers, a Turimex employee – not named in court papers – would move the bags into the buses. ...

Mr. Castillo admitted to transporting drug-sale proceeds from Dallas back to Laredo. He said the money went to someone known as El Dentista, who took the money over the border to Mr. Treviño Morales, the reputed Zeta commander.

The Webb County Sheriff's Department caught the men in February taking $870,000 to Laredo, authorities say.

This news follows on the heels of revelations last month that a Collin County deputy constable was working as a snitch for Los Zetas. Last year authorities claimed to have arrested Los Zetas' Dallas-area cell leader and more than 30 others affiliated with the Gulf Cartel, but obviously that didn't slow down the organization, which continued to ship up to 600 kilograms of blow per week from Laredo to Dallas before and after last year's arrests.

Despite the massive amounts of dope involved, the federal prosecutor doesn't appear sanguine about the effectiveness of making these cases:

Jose Angel Moreno, the Laredo federal prosecutor on the case, said it's unclear whether cases like this make a big dent in drug trafficking.

"Everyone is replaceable in these organizations," he said. "We keep chasing them."

Barry Scheck on eyewitness ID best practices

In its coverage of last week's initial meeting of the Court of Criminal Appeals' Criminal Justice Integrity Unit, Mary Alice Robbins at Texas Lawyer described a presentation by national Innocence Project co-director Barry Scheck regarding best practices for eyewitness ID procedures:

The meeting also featured a presentation by Barry Scheck, co-director of New York's Innocence Project, on the use of a computerized photo lineup program. With the high-tech software program, photo lineups can be downloaded onto a laptop computer that law enforcement can take to a witness in the field, Scheck said.

Scheck said the computer makes an audio or video recording as the witness goes through the photo array so there will be some form of documentation of the identification procedure. Also in the computer is information about the witness, he said. That includes the witness' name, his or her description of the suspect, the distance the witness was from the suspect at the time the crime was committed, and whether the witness was under the influence of drugs and alcohol.

For those law enforcement agencies that prefer less high-tech procedures, Scheck suggested the folder method. With that method, the person administering a photographic lineup places each photo in a separate folder, Scheck said. The witness then looks at the photo in each folder separately.

The discussion above referenced Scheck's advocacy of "blind administration" of lineups, including his low-tech "folder method" for performing a random, blind photo lineup. Some agencies have said using blind administrators could add onerous staffing demands, but Scheck said that using either a laptop or the "folder method" could meet the blind administration requirement without additional staff. (See the national Innocence Project's web page on eyewitness misidentification.)

Scheck also told the CJIU about several best practices that are cost free and merely need to be mandated in the law. Chief among those is telling the witness that the perpetrator may or may not be in the lineup. This reduces error, he said, without reducing accurate IDs and costs nothing. Similarly, witnesses should be asked to describe their level of certainty in the identification in their own words, and officers should avoid admonitions to witnesses like, "you have to be sure." Scheck also encouraged audio or preferably video recording of lineups.

Another key, free best practice: "Fillers" chosen for the lineup should be matched to the original witness description instead of finding fillers who look like the suspect. For example, if a witness said the suspect had blue eyes but the person police pick up has green eyes, only blue-eyed fillers should be used for comparison. (See comments for the correction.)

Most of these reforms are free and do not reduce the rate of accurate IDs, said Scheck.

Scheck also advocated using "sequential" lineups instead of photo arrays, but acknowledged that more research needs to be done to definitively prove which is better. Recent research questions whether "sequential lineup advantage is dependent on lineup composition and suspect position," while other researchers insist it's the best way to go. More significant research projects currently underway may soon answer the question definitively, he said.

Related Grits coverage: New CCA "integrity unit" shows shift in establishment opinion about innocence reforms.

Christian activist encouraging re-entry success through Prison Entrepreneurship Program

My brother, who is a Baptist pastor in Shreveport, emailed over the weekend to tell me how impressed he was with Prison Entrepreneurship Program (PEP) founder Catherine Rohr, whom he'd heard speaking at a Christian leadership conference in Illinois. The Texas-based nonprofit trains convicts to become entrepreneurs when they re-enter the free world, posting astonishingly positive success rates. So I was pleased to see the Christian Post providing coverage of her talk ("From Wall Street to Prison," Aug. 10):

“When I got to the prison, I saw human beings,” Rohr said during an interview broadcasted at The Leadership Summit in South Barrington, Ill., on Friday. “I was so inspired by their potential.”

After seeing what was going on there, Rohr began flying back and forth between New York and Texas to teach business classes at the prison, but she realized it wasn’t enough.

“I felt like I had to do more – to build a solution that left them with no excuse to fail after they got out,” she recalled.

According to statistics, 1 out of 15 Americans go to prison at least once in their lifetime, and over 50 percent of released prisoners get right back into prison within three years. Rohr admitted that, at first, she thought perhaps the problems lied within the criminals themselves.

“Then I started to realize that maybe society has to contribute to this problem,” said Rohr. “These men are released from the prison with $100 … and all they know is their old gang homeboys. And they try getting a job and at the very top of the application is the felony check box.”

Rohr argued that society’s attitude toward them contributes to the problem. And she realized that teaching classes on a monthly basis would only get the inmates’ hopes high but could not provide practical help after they were released from the prison.

This led Rohr to establish the Prisoner Entrepreneurship Program (PEP), a one-of-a-kind program that turns formal criminals into legit business men.

And so far, the results of her program have been astonishing. PEP graduates have a 98 percent employment rate and a less-than-5 percent return-to-prison rate. People who have been convicted for deadly crimes are now in the business world, serving the society.

“But one of the statistics that I’m most proud of is that these guys have been takers,” the 30-year-old PEP CEO continued. “Now 70 percent of our graduates are donors back to PEP.” ...

Regarding the future of the program, Rohr said she hasn’t considered expanding PEP just yet. But she hoped to find leaders to come to Houston, where PEP is currently based, to be trained and open similar program at different locations.

Over the last four years, PEP had 380 people graduate from the program. Some of the graduates – one of them just released four hours before the interview – were present at some of the locations where the Leadership Summit was broadcast live to share their brief testimonies about how God has turned their life around and how they are living the new lives that God has given them.

Rohr concluded her interview by urging leaders to remember their callings.

“Here at the conference, we say [words] like ‘I’m going to give you my everything, Jesus.’ How come that doesn’t happen more often?” she posed.

If Rohr had not followed God’s will, she said she would probably be in New York making some 100 million dollar deals.

“And how lame would that be compared to what I do now?” she asked.

Make schools pay full freight for JJAEP placements

Last week the New York Times opined that Texas schools as well as the Youth Commission bore responsibility for educational failures of kids in the juvenile justice system, declaring too many schools were "dumping" their problems via the disciplinary process into so-called "alternative education programs" (JJAEPs). So I was pleased to see a story from my hometown suggesting a possible fix to reduce unnecessary placements in the justice system. Via the Tyler Morning Telegraph ("TISD, juvenile board, seek JJAEP compromise," Aug. 8):

Prior to the 2007-08 school year, the county went from charging school districts $75 a day per student to place these "discretionary" students into the program to $203 a day per student - a cost superintendents have said they can't afford. County officials, though, have said that the county can charge the districts the actual costs for each student, and that rates have gone up considerably since they were last adjusted 10 or more years ago and it now costs $203.47 per day per student.

School districts must pay for "discretionary" students, while the state pays for "mandatory" students that the program is required to accept by law.

No new "discretionary" students were sent to the program this last school year after the higher cost was imposed.

That's a telling and positive outcome; merely charging the school district actual costs of placing kids reduced the number of discretionary placements to zero. What's more, Tyler operated under that scenario for a full year with no ill effects, so to my mind that's a successful outcome that should be replicated. Indeed, give me my druthers and I'd like to see the Legislature require accurate calculation of JJAEP costs and insist that schools pay the full freight, relieving locals from such dilemmas.

Unfortunately, in Tyler the debate over what's best for kids is being suborned to goals of revenue maximization.

During Thursday's discussion, it was suggested that the juvenile board might be willing to agree to charge districts the daily rate of $125 per student if the districts would agree to place their "mandatory" students in the program for the maximum amount of 90 school days.

The average for placing those students there has been 38 school days, officials said.

County Court at Law Judge Floyd Getz, a member of the juvenile board, said those "mandatory" placement students really ought to be in the program for 90 days. Officials also said the county will receive more money from the state if those students are placed there longer.

Boosting the length of stay for "mandatory" JJAEP placements just to increase revenue (to make up for loss of income from "discretionary" kids) amounts to throwing these youth under the bus for a few extra dollars.

JJAEP funds shouldn't be distributed on a per-kid basis at all, IMO, because it creates a financial incentive for the county to maximize the number of kids sent there. But if Texas is going to operate them that way, school districts should pay the full freight, not just dump their costs and problem kids on the juvenile justice system. Accurately setting the price for discretionary JJAEP placements would go a long way toward reducing them.

'Charter member' of Dallas DNA exoneree club still struggling to fit in

The Dallas News yesterday published the sad and telling story of David Pope, the "charter member" among Dallas' DNA exonerees who was released from prison in 2001 after spending 15 years inside for a rape he did not commit. Like many exonerees, he's struggled to reintegrate and still suffers from the damage done by his wrongful conviction.

Evidence retention failures thwart pursuit of innocence claims

On Tuesday, Texas witnessed its 34th DNA-based exoneration since 2001, this time again from Dallas County which is one of the only jurisdictions in Texas that saved old biological evidence. Such evidence only exists in about 10% of violent crime cases anyway, so DNA alone won't help most innocent offenders. But what about cases where DNA evidence existed but wasn't preserved?

USA Today this week published a pair of interesting stories focused on an issue made more immediate by the large number of recent DNA-based exonerations around the country - the failure of many jurisdictions to preserve DNA evidence ("DNA not saved in half of states," Aug. 6):

Evidence preservation has been the key to freeing more than 200 wrongfully convicted prisoners, says the Innocence Project, a group that works to free the innocent based on DNA testing.

Preserving DNA also has helped secure convictions. "We're becoming more successful in identifying perpetrators in cold cases than we were when we didn't have this technology," says Scott Storey, district attorney in Jefferson County, Colo.

The USA Today piece lists Texas as among states that retain biological evidence, but that's a) relatively new and b) inconsistently applied. District clerks control such evidence in Texas post-conviction, and no analysis of their evidence collection and retention practices has been performed to my knowledge. Who knows how different jurisdictions are handling it? Texas does not require district clerks to keep biological evidence that wasn't admitted in court, which may result in potentially exculpatory evidence being destroyed. And in some places like Harris County, prosecutors make an end run around evidence preservation requirements by insisting on evidence destruction a condition of plea bargains.

A companion story in USA Today ("In lieu of DNA evidence, exoneration proves tougher," Aug. 6) questioned whether the relatively small number of cases with DNA might thwart efforts to prove most innocence cases post-conviction. The story quoted Jeff Blackburn of the Innocence Project of Texas (for whom, I should remind readers unaware of the possible conflict, this writer is a paid consultant):

Jeff Blackburn, chief counsel for the Innocence Project of Texas, fears Texas cases dependent on DNA could "run out" within a year. Of the 700 cases his group believes have potentially credible claims, 225 would be heavily weighted on the outcome of DNA analysis — if the material exists. The rest involve issues such as witness identification problems and coerced confessions.

Some advocates' concerns over the availability of DNA have injected tension into a movement to free the wrongfully convicted.

Barry Scheck, co-director of the Innocence Project, a national group whose work relies almost exclusively on DNA testing, says enough cases exist to sustain a decade's worth of potential exonerations. His group says the DNA caseload has increased from 141 in 2004 to 278 this year.

"These cases are not slowing down," he says, adding his colleagues "are not looking hard enough." He says DNA cases will decline eventually — but not yet.

Just because DNA cases may slow down, though, that doesn't mean false convictions will have ceased, only that their causes will have been exposed by a serendipitous case study generated by this new technology. Unscientific eyewitness ID practices, false confessions, mendacious informants, forensic errors, prosecutors withholding exculpatory evidence, and a handful of other key systemic flaws will continue to convict innocent people after old DNA cases run out if they're not addressed by the Legislature or the courts.

With proper evidence preservation going forward, perhaps some new technology we can't even imagine today will provide another window into justice system errors. Given society's recent experience with DNA proving innocence in old cases, it's worth hanging onto the evidence to find out.

NY Times: Texas not providing federally guaranteed education to disabled kids in TYC

"Texas has both a moral and legal obligation to remake a system that is crippling, then writing off, the state’s most vulnerable children," the New York Times editorialized yesterday in reaction to the recent Ombudsman's report (pdf) on carceral education at the Texas Youth Commission, analyzed earlier by Grits here. Noting that "more than 40 percent of the students in custody have been identified as having disabilities that make them eligible for services and protections under the federal Individuals With Disabilities Education Act," the Times opined that:

The State Legislature will need to do at least two things if it hopes to correct these problems. First, it needs to require localities to provide disabled children with the school services they are entitled to under federal law, instead of just dumping them onto streets. Then lawmakers must strengthen the educational programs within the juvenile system itself by hiring better-trained employees and providing stronger central oversight.

The point about holding public schools accountable as well as TYC is a good one. TYC will be rightfully blamed for longstanding failures in education once kids are incarcerated - particularly the fact that, as the Times said, "Children are routinely asked to essentially teach themselves through “self-directed reading” — even though a substantial percentage have limited reading skills." But those kids were already many grade levels behind their peers in school before they got to the Youth Commission. Too often, as the Times put it, school districts are "dumping" their problems rather than beefing up services for disabled or emotionally disturbed kids.

The Dallas News earlier this year reached the same conclusion, editorializing that Texas had "inadvertently constructed a pipeline to youth prison." They argued that:

An increased investment in our schools, especially at the elementary level, can pay huge dividends further down the road because it's in those formative years when things start to go wrong, experts say. An upfront investment in prevention can ultimately reap huge savings – and salvage lives – down the line.

Instead, Texas favors a disciplinary-referral program that targets children – even in pre-kindergarten – to be removed from classrooms for misbehaving. A 2005 Texas A&M study found that the single most important predictor of future involvement with juvenile justice is a history of disciplinary referrals in school.

The Texas system puts certain kids – particularly blacks and Hispanics – on a fast track for disciplinary referrals. Since 2003, Texas school districts have isolated thousands of students in disciplinary referral, including 500 pre-K and kindergarteners, and 2,100 first-graders. Are we setting these kids up for shame, inferior education, failure and a possible life of crime?

So the mechanisms by which kids are functionally ousted from school at increasingly early ages, and for increasingly less serious offenses, had already been identified and been the subject of vocal criticism. The new Ombudsman's report, as the Times rightly points out, builds on that critique to add that disabled and emotionally disturbed kids predominate among those "dumped" by the schools into alternative disciplinary programs and ultimately into the juvenile justice system.

Whether such systemic flaws violate individual kids' federally guaranteed right to education, I don't know, but the Times is right the Ombudsman's report raises the possibility that they could. Certainly TYC isn't meeting those minimum standards, but something tells me that, for the most part, the school district these kids came from weren't doing so, either.

Sex toys, guns walked away from Houston police evidence room

After more than 30 guns went missing from the Houston PD property room, General Counsel Craig Ferrell said this spring that ""We feel all the holes in security have been closed and the property room is safe."

Unfortunately, Mr. Ferrell spoke too soon. Now we learn that $50,000 worth of sex toys seized from an adult video store also went missing from the property room. In February, the federal 5th Circuit Court of Appeals ruled Texas' statute (pdf) banning sex toys unconstitutional, and in May an attorney for the store requested the return of the items in writing.

From these incidents it's clear a comprehensive outside audit of the HPD property room is long overdue. HPD said this evidence was destroyed, but there was no destruction order so if that happened somebody violated department policy. Just as likely, the items could have been stolen, just like the guns discovered missing earlier this year. What else is missing from the Houston PD evidence room, one wonders, that they just haven't identified?

Legislators critique TYC restructuring plan, demand new spending audit

State Senator John Whitmire and Rep. Jerry Madden want the state auditor to take another crack at analyzing the Texas Youth Commission's problems, the Austin Statesman reports ("Audit demanded, Nedelkoff off," Aug. 7):

A day after blasting the Texas Youth Commission for continued financial mismanagement, two key legislative leaders this afternoon requested a full state audit of all spending by the still-troubled agency.

“The Texas Youth Commission is continuing a pattern of, what appears to us, a willful disregard for the spending parameters set by the Legislature,” Sen. John Whitmire, D-Houston, and Rep. Jerry Madden, R-Richardson, said in the letter to Auditor John Keel.

“TYC was placed into Conservatorship due to gross fiscal mismanagement. We want to ensure that gross fiscal mismanagement is not continuing.

The letter continues: “Instead of spending money retaining and attracting new JCO’s, TYC has chosen to increase central office personnel. In addition, we have seen evidence that large salary increases are being given to executive staff members. Yet today, our juvenile correctional system sits without a functional classification system or proven treatment and educational programs.

“We understand that they are continuing to spend millions of dollars worth of capital improvements on facilities that were recommended for closure by your office utilizing funds to continue their operations that were not appropriated for that purpose.”

While Sen. Whitmire criticized TYC for "spending money out there like a drunken sailor," the Statesman editorial board today offered a more measured analysis of the situation with which I mostly agree:

This week, the agency released a proposed "regionalization" plan that would shrink, but not close, several units, while opening new lockups and halfway houses. The plan includes a major facility, costing as much as $25 million, to be built in the Houston area and to house 150 youths.

As Nedelkoff reasonably points out, "A significant number of youth and their families live in or near large urban areas. However, TYC facilities are rarely located within reasonable traveling distance from those urban areas."

Sen. John Whitmire, a Houston Democrat who is chairman of the Senate Criminal Justice Committee, criticized the plan with a pointed remark: "Twenty-two percent of their beds are vacant right now, and they're proposing to build a bunch of new units run by the state? That's crazy."

The commission, Whitmire said, should have recommended closing some units in "remote, rundown rural areas" and put more emphasis on developing community-based programs rather than locking up youths.

It's going to take legislators, though, to take on the job of actually closing Youth Commission units in rural areas. They are there because some lawmakers over the years pushed to get them to provide at least some state job opportunities for constituents in high unemployment areas.

Nedelkoff is right to want youths whose offenses are serious enough to lock them up kept closer to home — even if society is quite willing to ship them to the wilds of West Texas. It's one thing to give up on a 35-year-old lifelong criminal. We shouldn't quit on a 15-year-old yet.

Still, the agency and the Legislature remain too much at odds. The worst abuses done to offenders may have been stopped, but reform is a long way from complete.

Here's the bottom line: TYC isn't using all its capacity, but if it actually shifted to a regionalized system with smaller facilities, it would still require new building. TYC has lots of capacity but nearly all of it's designed on the adult prison model that the Legislature has been urged to move away from.

So when Nedelkoff speaks of building 8 new halfway houses, for example, that to me doesn't seem inconsistent with expert advice the Lege received from other states and Governor Perry's blue-ribbon panel on TYC reform last year. I'm less convinced of the need for building larger lockups, like a proposed 150-person facility. If new money will be spent on construction it should go to build the types of smaller units we want to move toward in the future.

Even if responsibility for these youth ultimately shifts to the counties, new construction of smaller, regional facilities will be necessary because they just don't have capacity at the moment to handle the load. So I don't necessarily think Nedelkoff is moving entirely in the wrong direction, though I don't agree with all of the plan. But it's painfully obvious he's not done the legwork necessary to convince the legislative leadership they need to undertake this shift. Since Mr. Nedelkoff will be leaving soon, that Sysiphian struggle will fall to someone else.

State troopers would need 52% pay raise to match Austin police

Texas state troopers would require a 52% pay hike to put them on par with Austin, whose police are the highest paid in the nation taking into account cost of living. The state auditor has proposed boosting trooper pay 9-14% to keep them competitive with big-city departments. That would be a significant increase, assuming it can make it through the legislative appropriations process, but even that won't come close to equalizing pay scales. Reported the Houston Chronicle ("State troopers could be in line for pay raises," Aug. 7):

Texas should spend $50.2 million to make state trooper pay competitive with large city and county law enforcement departments, the state auditor recommended Wednesday.

The bulk of pay raises would go to the Texas Department of Public Safety, which has 80 percent of the state's 4,339 law officers. The proposed salary hikes would take the maximum base pay for a veteran trooper from $57,773 to $66,367, an increase of 14.9 percent.

Under the new salary schedule proposed by State Auditor John Keel, troopers with less than four years of service would see pay rise from $45,100 to $49,109, an increase of nearly 9 percent.

So not only did Austin's massive recent pay hikes for police wreak havoc on its own city budget,they're driving budget-busting salary hikes in other jurisdictions and now for the state. Here are comparable pay rates for DPS and big city Texas police departments, again from the Chronicle:

HOW THEY COMPARE

Law officers at the Texas Department of Public Safety and other state agencies earn less than their counterparts in some city and county departments. Here are the rankings based on maximum base pay.

• Austin: $87,787

• Fort Worth: $75,067

• Dallas: $71,273

• San Antonio: $61,764

• Harris County: $58,052

• Houston: $56,893

• El Paso: $55,612

• Texas DPS: $57,733

Source: State auditor's report

DPS salary hikes are being proposed because "trooper vacancies and morale are under scrutiny." But with pay rates still so far below Dallas, Fort Worth, and especially Austin - even if they get the proposed increases - a state troopers gig no longer looks like a step up employment-wise from local Texas police departments.

If state troopers can't retain employees at those salary levels, it's no wonder the state can't recruit enough prison guards who may make half that much.

Rothgery Ramifications: 'Investigate your defendant before arresting him'

The Rothgery case decided by SCOTUS this spring established that the Sixth Amendment right to counsel attaches for defendants at their bail hearing, but the full implications of that change have yet to be realized or even fully understood.

Though bar exams were last week, this question from the Texas District and County Attorneys Association message board would have made a good exam question:

Ok, here is the problem. Defendant arrested. Law enforcement for various reasons can't interview him that night. Defendant is magistrated that morning (15.17 hearing) and fills out a request for ct. appointed counsel.

Police detective contacts jail and is told thad defendant did not have counsel so he interviewed the defendant, on video, where he was marandized waived and confessed.

Now in the post Rothgery rule - can I use this confession or am I toast?

Attorneys on either side of the criminal bar should definitely read the whole string. The first commenter interpreted implications from the new SCOTUS decision the same way I would, declaring "Once the guy requested counsel, the cops should not have approached him and questioned him."

A Collin County prosecutor, however, disagreed and thought there were circumstances when police could get away with questioning defendants who'd requested counsel, declaring:

I don't think it makes a difference that he requested counsel at the 15.17 hearing. That is still nothing more than attachment. Until he has an attorney, there is no one for the police to speak to other than the defendant, and the Supreme Court has said the defendant can waive the right if he does not yet have an attorney. The question then becomes how long is that window? In some counties, the magistrate may pick someone of the list or wheel in the very next moment. In other counties it may take longer. It is a perilous situation that can be avoided in many instances by investigating first and arresting last.

"Perilous" perhaps understates the gravity of the situation described by this ADA. I'm not an attorney, but I know that after a person has received a Miranda warning, if they ask to have counsel appointed police cannot keep coming back again and again asking questions just because a judge hasn't appointed them a lawyer yet. Similarly, it seems both untoward and constitutionally deficient to try to sneak in one last interrogation session AFTER a defendant requests a lawyer.

Further possibile implications from the Rothgery change were identified by another commenter from Weatherford:

After speaking with our local appellate nerd (and I mean that in the nicest way possible--really Eddy), our conclusion is that one of the biggest changes that we need to school our local law enforcement officers on is this:

After a Defendant has been arrested and magistrated, if we want to interview him after he makes bail that we would be required to obtain an affirmative waiver of the Defendant's right to counsel (which we would do by having our officers give them the Sec 38.22 warnings), despite the fact the Defendant is not in custody.

I'll betcha most police agencies haven't yet caught on to that important change in the law!

A judge ultimately threw out the confession that launched the TDCAA string, we ultimately learn - a decision that aligns with state appellate court rulings on the subject from San Antonio, Houston and El Paso.

Bottom line, said the Collin County prosecutor, "All this really points to the critical need to investigate your defendant before arresting him. (emphasis in original)" Gee ... there's an original thought! I can see where that might be a good idea, can't you?

Prior related Grits posts:

• Rothgery '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?
• 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

Activists offer 'Sunset' recommendations for Commission on Jail Standards

Read recommendations regarding the Texas Commission on Jail Standards to the Sunset Advisory Commission from Bob Libal at Texas Prison Business and from the Texas Jail Project. In particular, I couldn't agree more with this suggestion from Libal:

Substantially enhance the ability of the Commission to successfully oversee jail facilities by adding at least two inspectors to Commission staff, and ehancing oversight of medical and mental health issues in jail facilities – possibly by dedicating one inspector to exclusively oversee mental health and health-related issues in jail facilities.

New CCA "Integrity Unit" shows shift in establishment opinion about innocence reforms

There was a time not so long ago when the Texas Court of Criminal Appeals didn't think too highly of post-conviction DNA evidence, but not anymore. Yesterday, on the heels of Texas' 34th DNA exoneration since 2001, the Texas Court of Criminal Appeals held the first meeting of a new "Criminal Justice Integrity Unit" created to identify and promote reforms aimed at preventing false convictions identified through DNA exonerations. (Conflict alert: I attended the event in my capacity working for the Innocence Project of Texas.)

The actual meeting was held in the same chambers where the CCA hears oral arguments. It was an odd little event - more focused on presentations (two by Barry Scheck from the national Innocence Project) than process - but presumably yesterday was just an introductory affair. The CJIU will meet again on Sept. 25 and between then and now Judge Barbara Hervey, who chaired the group, said she'd be calling members privately to hand out assignments.

Declaring "we know the criminal justice system needs reform," Judge Hervey said that "first and foremost the goal of this unit is to educate," citing so-called Fund 540 grant money the CCA controls that pays for training judges. She suggested several times, however, that the group would make specific legislative suggestions, and intimated that some of her colleagues - four of whom attended - were already further along toward supporting some of the most important proposals than court observers might expect.

Hervey rattled off several issues - including eyewitness ID, recording interrogations, funding innocence clinics, making it easier to file innocence writs in non-DNA cases and a couple others - while acknowledging the major task would be narrowing down the agenda to something do-able. Judge Hervey also promoted a "pet" idea to create a mobile oversight lab to travel around doing surprise spot checks at Texas forensic labs, suggesting the Forensic Science Commission would be an appropriate entity to operate such a mobile unit and be the official custodian of results.

In his opening remarks, Sen. Rodney Ellis cited these data regarding the first 33 Texas DNA exonerations:

• Erroneous eyewitness ID: 82%
• False or fraudulent forensics: 18%
• Junk science (testifying to untrue science): 24%
• Unreliable informant testimony: 15%
• False confessions: 9%
• Prosecutors withheld exculpatory material: 12%

San Antonio District Judge Sid Harle raised an important issue regarding evidence preservation, particularly biological evidence of the type that has spawned so many DNA exonerations. He surveyed judges from every jurisdiction in Texas and found that all but one jurisdiction was following current law - the court reporter is custodian of most evidence until appeals are over, then the district clerk stores it after that and sets their own retention policies. However, said Harle, most jurisdictions had the district clerk instead of the court reporter hold biological evidence even pending appeal.

From this discussion, it seems likely that many district clerks are ill equipped for preserving biological evidence and most aren't doing so for any length of time. The reason so many DNA exonerations have happened in Dallas is simply that the evidence was kept. Harle also said District Clerks may not retain or have policies for handling biological evidence that's not admitted in court. In most jurisdictions they toss it, regardless of the fact that ten years or even ten weeks from now some new technology may be invented, like DNA testing, that allows a more probative review of the evidence.

Barry Scheck, co-director of the NY Innocence Project, gave two notable presentations that I may discuss later in more detail - one on how innocence commissions operate in other states (and related entities in the UK and Canada) and one on the ins and outs of current research on eyewitness ID reform.

Finally, I thought Rep. Jim McReynolds hit the nail on the head when he declared that what we're seeing in most innocence cases are "system errors," or places where existing process safeguards failed to adequately protect the innocent. Eyewitnesses who wrongfully accused someone did not intentionally do so, for example, nor did scientists who testified to forensics later proven to be "junk" act in bad faith. However 20/20 hindsight tells us that there simply weren't enough checks and balances to prevent wrongful convictions. More are needed.

The event had a positive vibe, if an indeterminate agenda. Some of the topics and solutions discussed ran counter to the direction the Court of Criminal Appeals has been headed this last decade, and one took away the feeling that an emerging consensus could be forming even within those august chambers around the need to fix some of this stuff. This time next year, perhaps we'll look back and think of yesterday's meeting as a tipping point for establishment opinion and a precursor to successfully addressing some of these topics in the 81st Texas Legislature. Time will tell.

DNA overturns another bad conviction in Dallas based on faulty eyewitness testimony

Texas 34th DNA exoneree, Stephen Phillips walked out of a Dallas courtroom Monday completely cleared in the ten rapes for which he'd been convicted. His case arguably provides the most compelling example yet regarding flaws with historic eyewitness identification techniques and police tunnel vision. Reported the Dallas News:

Mr. Phillips fought his convictions for years but made little headway until the Innocence Project championed his cause. Attorney Barry Scheck said the Phillips case was “one of the worst cases of tunnel vision we’ve ever seen. Police seized on Steven Phillips as a suspect and refused to see mounting evidence that someone else actually committed these crimes.”

Mr. Phillips was identified by 10 different victims, many of whom had described the attackers striking blue eyes. Mr. Phillips’ eyes are green and his wife and two other relatives testified that he was with them when the crime occurred.

As in every DNA exoneration, not only was an innocent punished but the guilty party was never prosecuted for the crimes. The real offender, a man named Charles Goodyear, died in prison in 1998 serving time for an unrelated offense.

Phillips case compellingly demonstrates the need for requiring use of best practices in police lineups. One of the oft-ignored requirement is that fillers for a lineup should be chosen based on the witness description, not because they look like the chosen suspect. I have to wonder if the lineups shown to witnesses had included five blue-eyed people and Phillips with green eyes, would he still have been chosen? One also wonders if a "blind" administrator might have avoided tainting eyewitness testimony and been less likely to steer witnesses toward the wrong man? The Fort Worth Star Telegram added a little more background on the case:

Phillips was convicted of rape and burglary in two trials in 1982 and 1983 for charges stemming from the same crime. He was eventually linked to nine similar crimes that took place in spring 1982 in the Dallas area, according to the Innocence Project.

The crimes were committed by someone wearing a hood who forced women — sometimes in large groups — to strip and perform sexual acts at gunpoint.

Although Phillips argued that the victims had misidentified him — and his former wife provided an alibi — the juries convicted him anyway, giving him two 30-year sentences. Afraid of getting a life sentence for the other crimes because he was getting "smashed in court," Phillips said he took a plea bargain in the other cases.

"Once they got it started, they could not turn off the machine," Phillips said. "The truth had already slipped away."

Phillips’ request to have the DNA retested was denied by the Dallas DA’s office in 2001. But current Dallas County District Attorney Craig Watkins agreed to re-examine the scientific material in 2007.

Open Thread

I'm off this morning to spend most of day at the first meeting of Court of Criminal Appeals Judge Barbara Hervey's newly created Criminal Justice Integrity Unit, discussed earlier by Grits here and here. Until I return, use this as an open thread to let me know what criminal justice topics your tracking that deserve Grits readers attention.

Waco won't privatize local jail

Just to update a topic Grits has been tracking recently, the McLennan County Commissioners voted against privatizing their local jail.

UPDATE: The Texas Commission on Jail Standards meets in Austin tomorrow (Thursday, Aug. 7 - here's the agenda) and will hear an update on McLennan's appeal of a TCJS remedial order that's driving commissioners' push for expanding jail capacity.

See prior, related Grits posts:

• Commissioner wants off jail privatization train
• 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

Medellin postscript

By a 5-4 vote, the Supreme Court allowed Jose Medellin's execution to move forward last night despite opposition from the World Court and the Bush administration.

I hope Medellin's death will bring the victims' family closure - whatever that means. But since his execution cannot bring back their lost loved ones, I doubt seriously those painful memories are "closed" for the victims' family and friends any more this morning than at this time yesterday. Such indescribable loss can never be cured IMO via mere retribution, however satisfying the idea may seem to contemplate. The promise of "closure" to me is one of the cruelest aspects of the modern death penalty advocacy - executions may accomplish many things but "closure" for victim families is rarely one of them. Some tragedies just haunt you forever.

Given that the only possible enforcement for Vienna violations would be action by the United Nations Security Council, in which the United States has a veto, it's hard to predict what will happen going forward. The legal debate over Medellin may end here for now, waiting to be renewed the first time some American is held incommunicado overseas and our government complains their Vienna rights were violated.

You can almost hear future officials from some corrupt government telling the United States "I'm sorry Mr. Ambassador ... local authorities made the decision to violate your citizens' rights, so even though we have a treaty saying she could speak to the consulate, they didn't tell her she could do so and we have to abide by their decision. Our hands are tied." That's essentially what last night's SCOTUS decision said to the rest of the world. "We may enter treaties, but we'll pick and choose when we will abide by them.

In what strikes me as an oddity, the SCOTUS majority offered an unsigned per curiam opinion while we're treated to four different dissents (see the opinions here). Though we obviously know which five approved of the opinion, apparently nobody wanted their name on this one.

The court had held 6-3 earlier this year that Texas was not bound by the Vienna Convention - a 45 year old treaty guaranteeing foreign nationals arrested will be told of their right to notify their country's consular authorities - because Congress had not passed enabling legislation. Justice John Paul Stevens sided with the majority in the earlier ruling but switched to a dissent because he felt Texas has not lived up to its responsibility. This paragraph of Stevens' summed up my own views on the question:

As I explained in my separate opinion in March, the cost to Texas of complying with the ICJ judgment “would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced” this petitioner. 552 U. S., at ___ (slip op., at 5) (STEVENS, J., concurring in judgment). “On the other hand, the costs of refusing to respect the ICJ’s judgment are significant. The entire Court and the President agree that breach will jeopardize the United States’ ‘plainly compelling’ interests in ‘ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.’ ”

The most interesting and extensive dissent came from Justice Breyer, who was also part of the earlier minority on Medellin:

In my view, several factors counsel in favor of delay. First, since this Court handed down Medellín, Mexico has returned to the ICJ requesting this Nation’s compliance with its international obligations; and the ICJ has asked that the United States “take all measures necessary to ensure that [the Mexican nationals] are not executed” unless and until they “receive review and reconsideration consistent” with the ICJ’s earlier Avena decision. See Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2008 I. C. J. No. 139, ¶80 (Order of July 16).

Second, legislation has been introduced in Congress seeking to provide the legislative approval necessary to transform our international legal obligations into binding domestic law. See Avena Case Implementation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July 14, 2008).

Third, prior to Medellín, Congress may not have understood the legal need for further legislation of this kind. That fact, along with the approaching election, means that more than a few days or weeks are likely necessary for Congress to determine whether to enact the proposed legislation.

Fourth, to permit this execution to proceed forthwith places the United States irremediably in violation of international law and breaks our treaty promises.

Fifth, the President of the United States has emphasized the importance of carrying out our treaty-based obligations in this case; this fact, along with the President’s responsibility for foreign affairs, makes the Executive’s views of the matter pertinent.

Sixth, different Members of this Court seem to have very different views of what this case is about. In my view, the issue in this suit—what the majority describe as the “beginning premise”—is not whether a confession was unlawfully obtained from petitioner. Cf. ante, at . Rather, the question before us is whether the United States will carry out its international legal obligation to enforce the decision of the ICJ. That decision requires a further hearing to determine whether a conceded violation of the Vienna Convention (Texas’ failure to inform petitioner of his rights under the Vienna Convention) was or was not harmless. Nor do I believe the majority is correct insofar as it implies that Congress has had four years to consider the matter. See ibid. (“Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in Medellín v. Texas”). To the contrary, until this Court's decision in Medellín a few months ago, a member of Congress might reasonably have believed there was no need for legislation because the relevant treaty provisions were self-executing. It is not realistic to believe Congress could act to provide the necessary legislative approval in
only a few weeks’ time.

Breyer's final point - that people disagree what the case is really about - strikes me as a fundamentally true statement not just about the court but the public debate surrounding the whole case. Like Breyer, I was startled to see the majority's reference to challenging the confession as the only valid reason to allow review of the consular notification requirement. That's not correct at all from my perspective, and clearly Breyer's - the reason to hold such a hearing is because the United States agreed to abide by the treaty, not because of any specific aspect of Medellin's case in particular.

This sets an odd precedent going forward - that states are not bound by federal treaties without specific enabling legislation. I wonder how many other treaties this might implicate where states are now free to violate agreements the President entered into on the nation's behalf? What does it mean when the federal government undertakes international treaty obligations that states intentionally violate? Given the Supemacy Clause, it's hard for me to understand how a single state can initiate such a dispute with foreign nations in violation of treaties that the US Consitution makes "the supreme Law of the land."

Finally, Julian Ku over at Opinio Juri identified an oddity in Texas' final pleading to SCOTUS in which the Lone Star State promises to give future defendants hearings as mandated by the ICJ, but out of "comity" not because of any legal obligation. Ku notes:

it is not clear from the brief whether Texas is also undertaking to give the type of “review and reconsideration” required by the ICJ. I have to assume that there is some difference between what Texas thinks “review and reconsideration” means via the Vienna Convention, and what the ICJ thinks, since it is executing Medellin with the claim that he got all the review and reconsideration required. But plainly, the ICJ does not believe Medellin’s habeas hearing satisfies the “review and reconsideration” requirement. And since the ICJ is the institution that basically invented this requirement, why shouldn’t their views on what “review and reconsideration” means prevails?

I agree with Ku that when Texas promised "review and reconsideration," they weren't remotely promising to comply with the ICJ ruling but with their own Texas version of cursory review to be pulled out of the black-robed behinds of the Court of Criminal Appeals at some future date. IMO we shouldn't read too much into this promise.

This was a bizarre and complex case: I can't think of a single other instance where a state's actions violated a US treaty and it was allowed to stand by the federal courts at the end of the day. Yesterday's execution and the subsequent treaty violation it spawned will be the subject of intense debate and international controversy for many years, I'm sure, plus one suspects it may also show up as the topic of more than a few exam questions about international law.

See more coverage compiled at the Stand Down blog.

Proposed Court of Criminal Appeals rule change would punish last-minute appeals as "untimely"

The Texas Court of Criminal Appeals has proposed a rule change that would move up the deadline for last-minute habeas appeals in death penalty appeals to 48 hours before the execution date. Here's the full text (pdf) of the proposed rule change:

MISCELLANEOUS RULE 08-101
Procedures in Death Penalty Cases Involving Requests for Stay of Execution and Related Filings in Texas State Trial Courts and the Court of Criminal Appeals

1. Time Requirements for Habeas Petitions or Other Motions. Inmates sentenced to death who seek a stay of execution or who wish to file a subsequent writ application or other motion seeking any affirmative relief from, or relating to, a death sentence must exercise reasonable diligence in timely filing such requests. A motion for stay of execution, or any other motion relating to a death sentence, shall be deemed untimely if it is filed less than forty-eight hours before 6:00 p.m. on the scheduled execution date. Thus, a request for a stay of execution filed at 7:00 p.m. on a Monday evening when an execution is scheduled on Wednesday at 6:00 p.m. is untimely.

2. Special Requirements for Untimely Petitions or Other Motions. Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely motion requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request or motion. Counsel is required to show good cause for the untimely filing.

3. Sanctions. Counsel who fails to attach a sworn detailed explanation to an untimely filing or who fails to adequately justify the necessity for an untimely filing shall be sanctioned. Such sanctions include, but are not limited to, (1) referral to the Chief Disciplinary Counsel of the State Bar of Texas; (2) contempt of court; (3) removal from the list of Tex. Code Crim. Proc. Art. 11.071 list of attorneys; (4) restitution of costs incurred by the opposing party; (5) any other sanction allowable under Tex. R. Civ. P. 215.2.

I'm sure in part this rule was proposed to prevent any future embarrassment like that endured by the CCA last fall when Judge Sharon Keller refused to accept a last-minute pleading with an execution just hours away because, "We close at 5." I'm no attorney, much less a capital appellate specialist, so I have little understanding of what practical implications this may have on the process beyond just moving the deadline up 2 days. I do know a fairly significant portion of those last-minute appeals succeed, at least temporarily, which is why you see execution dates so frequently set then delayed.

I don't particularly have a dog in this fight but I'm sure at least some Grits readers have whole packs of hounds they're ready to unleash on the topic. Without having heard any arguments against the rule, it doesn't seem wholly unreasonable to limit last-minute capital filings filings in the 2 days before an execution, though the penalty laid out in section 3 is pretty harsh - particularly since the highly public blunders that cause the court to change the rule were all of the judges' making, not defense counsel. Essentially the same faction of judges has been in charge of the court and its rulemaking for the last 14 years.

What do you think of the new rule? Are the penalties appropriate and commensurate with penalties for other miscues by attorneys? Will it solve the problems associated with last minute appeals or just move the timeline up? What about in a case like Charles Hood's where an execution date is struck down by one judge and reinstated hours later (for the same day) by another? You can say such a filing would be "adequately justified," and I'd certainly agree personally, but I don't wear the black robe. If CCA judges with a jaundiced, "pro-prosecution" view are deciding whether the filing is necessary, the rule could become subject to politicization and abuse.

I don't know the answers to these questions and hence don't really know what I think about it, but welcome Grits readers insights and opinions about whether it's the right move.

1 in 4 Texas drivers lack insurance: Using criminal penalties to require coverage simply doesn't work

In the national healthcare debate during the Democratic primary this spring, a key difference between Barack Obama and Hillary Clinton's health plans emerged. She favored requiring citizens to purchase health insurance themselves, providing penalties if they did not comply. Obama said her solution was unworkable, that some people didn't have health insurance because they could not pay and it would do no good to punish them.

The same dilemma Obama described exists today en masse on Texas roadways. Texas law requires drivers to have insurance, but in practice, for a variety of reasons, about 25% of drivers don't have any according to a recent test by the Department of Public Safety in Austin. Reported AP last week ("Sizable number of Texas drivers lack insurance," July 29):

A 60-day pilot project testing the new TexasSure program, which allows law enforcement personnel via computer to verify coverage status when they stop a motorist, focused on Travis County. During the test which is expected to end soon, Texas Department of Public Safety troopers stopped and ticketed uninsured drivers.

So far, 25.5 percent of 5,012 drivers stopped in Travis County and small portions of nearby Williamson and Hays counties since June 2, did not have auto insurance.

"The numbers show that Texas has an even larger number of uninsured drivers than we had realized," said Mark Hanna, spokesman for the Insurance Council of Texas, in a story Tuesday in the online editions of the Houston Chronicle and the San Antonio Express-News.

The Council has been monitoring the state's new auto insurance verification program.

"Troopers tell us that some areas of the state may have more than half of their drivers uninsured, and that's scary news for everyone else on our roadways," Hanna said.

This spring, the minimum amount of liability insurance Texas drivers are required to have, increased for the first time in 22 years. Hanna said he didn't think the higher requirement was a factor in the lack of coverage because the effect on premiums was "minimal."

During the pilot project, drivers who said they were insured but weren't carrying proof of insurance weren't issued citations if troopers, using the new technology, validated their insurance coverage.

DPS plans to issue a report of its findings when the pilot is completed.

A portion of the vehicle registration fee is paying for a $7 million contract with HDI solutions Inc.

Those ticketed for no insurance who are truly impoverished quickly slide down a slippery slope from which it can be nearly impossible to extract oneself. They face the immediate impound of the car they likely need to get to work, with an expensive impound fee to get it back. Then, of course, the no-insurance ticket is expensive - typically several hundred dollars - and it also triggers a separate fee owed to DPS of $250 per year for THREE Years (ironically called the Driver Responsibility Fee). If you don't pay, you can't renew your driver license. A traffic stop while driving without a license, of course, also results in a huge ticket and another fat DPS fee.

The result of these expensive and draconian measures has been utterly predictable: Today more than 10% of adult Texans have an outstanding arrest warrant, most of them for failing to pay tickets or the misnamed DPS Driver Responsibility Fee. This "solution" is only going to make matters worse--more impoverished people getting more tickets and more fees they can't pay while officers spend more time impounding cars and getting these otherwise peaceful citizens off the roads while spending even less time making the public safe from actual criminals.

My own preferred solution to the crisis of uninsured drivers is as simple as it is unlikely to pass in Texas anytime soon: Use the gas tax to implement pay at the pump insurance for minimum liability so that every driver becomes automatically covered via no-fault insurance on terms more closely regulated by the state. As an added bonus, since companies would all be paid the same for every driver, they would be forced to compete on quality of service instead of striated pricing schemes.

Obama was right that Hillary Clinton's forced insurance plan wouldn't have worked had it been implemented. How do we know? We've already witnessed the identical failure in the auto insurance arena.

Dumping Debra and Donna: Counties should reduce pretrial incarceration if they can't afford health costs

Over the last decade or so, even as crime has declined, most Texas jails have gotten fuller mostly because of a dramatic expansion in pretrial detention - in particular requiring bail instead of releasing offenders on personal recognizance bonds. Indeed, for reasons I cannot explain, this pattern constitutes a statewide trend even though the decisions behind it are all made by local judges. According to Dr. Tony Fabelo, overall jail populations in Texas increased 18.6% between 2000-2007, while the number of pretrial detainees increased 49.2% over the same period.

With this decision, though, comes all the costs resulting from jail overcrowding - particularly health care for inmates.

In two ugly cases this year in Henderson County, a judge refused to offer a female defendant a personal bond, then while incarcerated they became sick unto death. Reports the Athens Review ("Second inmate dies after jail release," Aug. 1):

Like Debra Lee Newton, Donna Carroll, 49, of Mabank was released from jail on a personal recognizance bond a few days before she died earlier this month.

The cases of the two women are similar in some respects.

Both were handled by area police on drug charges. Both became ill while in the Henderson County Jail. And both were released on $5,000 personal recognizance bonds once it was determined they needed major medical attention.

Both also died within several days of being released from Henderson County Sheriff’s Department custody.

While Newton’s body was disposed of without an autopsy being performed, Carroll’s body was autopsied.

The difference?

Carrol’s death was “unattended” at her home in Mabank. State law requires that all such deaths undergo autopsy.

Newton died at ETMC as a patient of the hospital.

The article goes on to speculate that health problems related to meth abuse may have caused these women's deaths, but there are policy concerns that won't be satisfied with that explanation.

In the case of Debra Newton, she'd been in the jail two months before a judge released her on a personal bond and deputies took her to the local hospital where she later died. So even if drug abuse caused her problem, she'd presumably been off drugs and under the jail's care for two full months. If either a) she was able to get drugs in the jail or b) the Sheriff did not provide adequate health care, the county may still be at fault.

Finding another, similar case makes me think the county simply has too many people in its jail to provide adequate health care. These women had not been sentenced, they were being held pretrial on drug charges because they could not make bail and a judge denied them personal bonds. Then, when healthcare costs became too dear, probably the same judge decided they were safe to release on their own recognizance, conveniently eliminating the county's obligation to pick up the tab for their health care.

When judges require bail for low-level offenses, they're undertaking costs to the taxpayers that can easily rise if the person gets sick or must stay in jail many months awaiting trial. Counties unwilling to meet their obligation to provide health care to inmates shouldn't incarcerate so many of them prior to sentencing. But once they do, they're the county's responsibility when they get sick; jailers and judges can't just dump sick inmates at home or in the local E.R. and wash their hands of the matter.

Alexandr Solzhenitsyn, R.I.P.

The greatest and most effective prison reform advocate on the planet died yesterday at the ripe old age of 89. Russian novelist Alexandr Solzhenitsyn was perhaps best known for his literally and literarily awesome nonfiction tome, "The Gulag Archipelago," described in an early obituary as:

a monumental account of the Soviet labor camp system, a chain of prisons that by Solzhenitsyn's calculation some 60 million people had entered during the 20th century. The book led to his expulsion from his native land.

In his acceptance speech for the Nobel Prize (he could not attend the award ceremony for fear the Soviets would not allow him to leave), Solzhenitsyn recalled his own prison experience:

in the midst of exhausting prison camp relocations, marching in a column of prisoners in the gloom of bitterly cold evenings, with strings of camp lights glimmering through the darkness, we would often feel rising in our breast what we would have wanted to shout out to the whole world — if only the whole world could have heard us.

The great writer's idiosyncratic criticisms of the United States left him as ignored in America after the fall of Communism as he was celebrated before its demise. But it's hard to overstate his impact on global politics, literature, and especially on how the world viewed prisons during his lifetime. This anecdote from the same International Herald Tribune obituary gives at least a sense of his contrarian influence at the height of the Cold War:

One story, a short novel, was "A Day in the Life of Ivan Denisovich," an account of a single day in an icy prison camp written in the voice of an inmate named Ivan Denisovich Shukov, a bricklayer. With little sentimentality, he recounts the trials and sufferings of "zeks," as the prisoners were known, peasants who were willing to risk punishment and pain as they seek seemingly small advantages like a few more minutes before a fire. He also reveals their survival skills, their loyalty to their work brigade and their pride.

The day ends with the prisoner in his bunk. "Shukov felt pleased with his life as he went to sleep," Solzhenitsyn wrote. Shukov was pleased because, among other things, he had not been put in an isolation cell, and his brigade had avoided a work assignment in a place unprotected from the bitter wind, and he had swiped some extra gruel, and had been able to buy a bit of tobacco from another prisoner.

"The end of an unclouded day. Almost a happy one," Solzhenitsyn wrote, adding: "Just one of the 3,653 days of his sentence, from bell to bell. The extra three days were for leap years."

Solzhenitsyn typed the story single spaced, using both sides to save paper. He sent one copy to Lev Kopelev, an intellectual with whom he had shared a cell 16 years earlier. Kopelev, who later became a well known dissident, realized that under Khrushchev's policies of liberalization, it might be possible to have the story published by Novy Mir, or The New World, the most prestigious of the Soviet Union's so-called thick literary and cultural journals. Kopelev and his colleagues steered the manuscript around lower editors who might have blocked its publication and took it to Aleksandr Tvardovsky, the editor and a Politburo member who backed Khrushchev.

On reading the manuscript, Tvardovsky summoned Solzhenitsyn from Ryazan. "You have written a marvelous thing," he told him. "You have described only one day, and yet everything there is to say about prison has been said." He likened the story to Tolstoy's moral tales. Other editors compared it to Dostoyevski's "House of the Dead," which the author had based on his own experience of incarceration in czarist times. Tvardovsky offered Solzhenitsyn a contract worth more than twice his teacher's annual salary, but he cautioned that he was not certain he could publish the story.

Tvardovsky was eventually able to get Khrushchev himself to read "A Day in the Life." Khrushchev was impressed, and by mid-October 1962, the presidium of the Politburo took up the question of whether to allow it to be published. The presidium ultimately agreed, and in his biography "Solzhenitsyn" (Norton, 1985), Michael Scammell wrote that Khrushchev defended the decision and was reported to have declared: "There's a Stalinist in each of you; there's even a Stalinist in me. We must root out this evil."

The novel appeared in Novy Mir in early 1963. The critic Kornei Chukovsky pronounced the work "a literary miracle." Grigori Baklanov, a respected novelist and writer about World War II, declared that the story was one of those rare creations after which "it is impossible to go on writing as one did before."

R.I.P., Alexandr Solzhenitsyn.

Jose Medellin and the rule of law

The question of whether to execute convicted killer and Mexican national Jose Medellin has generated many false arguments in recent weeks regarding the rule of law, frequently IMO turning the idea on its head.

Barring an unlikely last-minute intervention by the Board of Pardons and Parole and the Governor, Texas will execute Medellin this evening for the double murder of two Houston teenagers. The Lone Star State has executed people for far lesser crimes - even people convicted under the "law of parties" who weren't directly responsible - so if the only issue were whether Medellin deserves to die, I doubt I'd waste space on Grits about him.

However, Medellin's case implicates much larger issues regarding America's place in the world and Americans' safety when traveling abroad that I do care a lot about, particularly since I love to travel.

Why are those crowing about the rule of law unconcerned when America violates our treaties and soils the nation's reputation and good word? In a ridiculous column published in the Houston Chronicle August 1, Dallas attorney Cameron Kinvig offers up one of the more absurdist examples of (what's passing for) conservative commentary on the subject:

those espousing the "internationalist" perspective seem all too willing to thwart justice, destroy sovereign rights and otherwise thumb their noses at the proper (and unabashedly domestic) rule of law, so that the United States can somehow make friends in the international legal community. This movement is counter to the constitutional principles upon which this country was founded, and must be stopped. Indeed, to place the laws of the state of Texas up for review by any and every international body that wants to opine certainly would be contrary to the system of independent federalism governing our legislative and judicial systems.

Instead, and in the words of Randy Ertman, father of Jennifer Ertman: "The world court don't mean diddly. This business belongs in the state of Texas ... the rest of them can go to hell."

For starters, if Kinvig or perhaps his spouse or one of his children were ever arrested in, say, Central America or Southeast Asia, I wonder if he would be satisified when, upon asking to speak with the American consulate, he were told the American government "can go to hell"? If his own rights were at stake, or his family's, would he be so cavalier about the importance of nations abiding by their treaties? I sincerely doubt it. It's easy to act like a jerk when somebody else's ox is getting gored; less so when it's you and yours.

Kinvig's caricatured depiction of a so-called "internationalist" perspective similarly begs credulity. How are internationalists the ones "thumbing their noses" at the rule of law? Did the United States not enter into the Vienna Convention willingly many years before Medellin was even born? Doesn't the US Constitution obligate us to abide by treaties freely entered into and ratified like this one?

The US Supreme Court held that the Vienna accords did not give Medellin an individual right, but instead created an obligation for Congress to establish that right under federal law, something that had never been deemed necessary since the treaty was enacted in 1963. However that doesn't mean that Medellin needn't have been notified of his consular rights, just that the United States failed to comply with its treaty obligations by not ensuring those rights.

In other words, to say Medellin needn't have been notified, one must embrace the idea that the United States can and should knowingly violate an existing treaty. That's just wrong. The federal government is still obligated by the rule of law to protect Medellin's Vienna rights, which is why the Bush Administration including Secretary of State Condoleeza Rice are calling on Texas to stay the execution until Congress can fulfill its SCOTUS-articulated duty. This isn't really about "making friends," but whether America's word can be trusted by other nations.

The Supreme Court ruled that states aren't bound by the treaty and that gave the state of Texas a narrow time window in which it could legally carry out Medellin's execution under US law. But Texans are also Americans. The United States of America is bound by Vienna requirements and our nation's failure to fulfill them still violates US international obligations, regardless of domestic legalities. Medellin's execution will amount to a breach of treaty, even if the feds can't force Texas (for the moment) to comply.

If the United States doesn't intend to abide by treaties, we should not enter into them. But when we do, those obligations constitute the "rule of law" just as much as other types of statutes. Those who say so-called "internationalists" would "thumb their noses" at the rule of law need to find a mirror. Somehow the phrase "internationalist" has morphed into meaning, "people who think the United States should not violate longstanding treaties."

Typically, those baying most loudly for an immediate death sentence portray US treaty obligations as mere flights of fancy, as Kinvig did when he referred to the:

banal musings of an international court seeking to impose its will, and arguably its moral compass, on nonconsenting sovereign governments

How exactly is the United States a "nonconsenting sovereign government" when we willingly signed onto the treaty? The International Criminal Court wasn't just "musing" on the topic - they were using mechanisms our government agreed to to tell the United States to do what it said it would do 45 years ago in Vienna. The feds agreed; Texas said "F-You."

I would prefer that consular notification questions had come up regarding a case with a less hot-button underlying crime, because the issues would be the same if Medellin were convicted of shoplifting. But tonight's execution date raises the stakes and simultaneously makes the violation of Medellin's Vienna rights an irreversible act. The whole episode reminds me of a remark from H.L. Mencken that popped up recently on my "Quote of the Day" feed:

“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

- H. L. Mencken, 1880 - 1956

That's exactly the dilemma here. Those who think rights for everyone shouldn't be abrogated find themselves reduced - in this case as in so many others - to advocating for the rights of a scoundrel, which description surely fits Jose Medellin.

One of these days these boots are going to walk all over your attorney-client privilege

Bill Baumbach at the Collin County Observer has the scoop on the story of the Judge who issued a search warrant for a defense attorney's files in a high profile murder case. Most alarming is news that officers removed documents from the attorney's files that do not correspond to any item the warrant ordered them to seize. Reported Baumbach:

Judge Mark Rusch issued a search warrant, stipulating that a court "Master", Eric Higgins would be present. The warrant also required all evidence seized to be turned over to Judge Rusch for his "in camera" inspection.

The warrant specifically required the police to seize:
"a. Letters, cards and envelopes written at and/or sent from the Collin County Jail by inmate Mark Bell, to his spouse, Linda Bell..."
"b. A shoe box and
c. Men's boots."

The return inventory of items seized, however listed:
1. "Six envelopes containing handwritten letters"
2. "Sealed orange and white box"
3. "Multiple paged stapled document"

No boots were found, no timecard was ever mentioned and even more troubling was the seizure of the "Multiple paged document" not listed in the warrant. ...

Visiting Judge Gary Stephens will hear testimony on conflicting motions by the State and the defense in a hearing scheduled for August 5. As of now, the defense has asked for the recusal of Judge Rusch, and for suppression and return of seized evidence. The State has asked for Keith Gore to be dismissed as defense counsel, so the DA can call him as a witness.

So the boots weren't found and the defense attorney wasn't lying when he told the court he didn't have them. Oops! It really seems like a misstep by police when handling so delicate a matter as a search warrant for defense counsel's files when they seize documents wholly unrelated to the warrant. Once police have seen this material, how can you un-ring that bell?

Those interested in the case should see especially the "notes and links" at the end of Bill's article, including the search warrant affidavit, and this earlier Grits post.

Darrington guard collaborated with ex-inmate smuggling blow into Bayou State

Yikes! From the "What was she thinking?" department, here's a story of prison guard corruption I didn't read in the Texas papers, via Drug War Chronicle:

In Lake Charles, Louisiana, a Texas prison guard was arrested Monday night after Louisiana state troopers found 1.2 pounds of cocaine in her vehicle during a drug dog search after a traffic stop. LaQuatta Felder of Houston works at the Darrington Penitentiary in Rosharon, Texas, and was traveling with a former Darrington prisoner, Joseph Harris. Both were booked into the the Jefferson Davis Parish Jail for possession with intent to distribute cocaine.

Felder refused consent to a search her vehicle so troopers brought in a drug dog, which signaled on the 1.2 pounds of blow, according to a TV news report. Splitting the take from retailing 1.2 pounds of cocaine would provide incentive enough for corruption, but one suspects there may also be some low-rent love story at the root of this sordid tale.

Opponents of Amarillo halfway house misunderstand their own safety interests

As Texas lurches toward reinvigorating its carceral drug treatment programs after draconian budget cuts eliminated most of them in 2003, gaps in services and NIMBY opposition to transitional treatment centers threaten to stymie some of the legislatively mandated programs, particularly the drug treatment program SAFP (pronounced Safe-P), which stands for Substance Abuse Felony Punishment.

Part of the SAFP program requires a three-month stint in a halfway house before final release, but TDCJ has been unable to find contractors willing to provide that service.

Even when someone is willing to establish and run a new halfway house, NIMBYism frequently crops up to threaten the project. In Amarillo, reports the Globe News' John Kanelis, halfway house up for a vote at a city commission meeting on August 11:

has drawn opposing fire from neighbors, which is the least-surprising - and most distressing - aspect of this debate.

Few people doubt the need to provide a transition for convicts back into civilized society - just don't put 'em anywhere near me!

The Panhandle Truth Squad this spring editorialized against the NIMBYs from their perch as Panhandle populists, calling the movement to oppose the facility evidence Amarillo is a "city without pity."

But IMO what's needed is not "pity" but informed, rational self interest. Amarilloans who oppose the halfway house simply misunderstand where their real public safety interests lie.

What do they think happens if TDCJ can't build any halfway houses, anywhere? Will those prisoners simply "go somewhere else"? Hell no. They'll just be released directly on parole with LESS supervision than they'd see in a halfway house! In that context, opposition to such a facility can only be described as mind bogglingly foolish, stemming from a complete failure to understand their real public safety interests. By opposing this facility, they're really making a de facto argument, if never an explicit one, for releasing drug offenders on regular parole without initial close supervision at all.

So would Amarillo be safer if SAFP released offenders directly without such program? I've seen no data, but Kanelis quoted a local probationer who'd been through a similar facility in Odessa describing his experience and residents' interaction, or lack thereof, with their neighbors:

Brian is adamant about many points concerning the halfway house, especially the control it exercised over its residents.

He was released from the Odessa residence on Sept. 11, 2006 and has lived in Amarillo ever since. Brian is still on probation, but once he completes his sentence successfully, his felony conviction will be removed from his record.

He credits the treatment he received in Odessa, along with SAFPF, for saving his life.

The concerns of residents who oppose the treatment center in Amarillo are misguided, Brian said.

"You don't leave the house except to go to work," he said. Brian worked nights loading trucks for a chain of stores. "I left at 9 each night for work and would return in the morning," he said. He had to attend three Alcoholics Anonymous meetings each week; moreover, the Texas Department of Criminal Justice bused him to the meetings.

"We had lights out at 10 each night," he said, "and we couldn't play loud music."

His point simply is this: The neighbors of the proposed AWARE residence in south Amarillo "won't ever see the people" who live in the house.

Oh, what about the perceived threat to neighbors by residents who fall of the drugs-and-booze wagon?

Brian stifled a chuckle, and then said, "The people who mess up aren't going to stick around. They're going to try to go home - wherever that may be. They would be long gone."

Brian would get weekend passes while living in Odessa. He would come home to spend time with his parents.

And when he returned to Odessa? He had to provide a urine sample to be tested for drugs. "If I came up dirty, then my probation would be revoked," he said. Happily, he stayed clean then and is staying clean now.

Would opponents of this facility prefer if Brian had come straight home to Amarillo without this more intensive level of supervision when he first left prison? If he went immediately back to work for his father's Amarillo business (where he is today and in any event would be inevitably), would the city's residents be more or less confident he was prepared to responsibly exercise his new freedom?

I'm guessing if you asked them in the abstract, everyone opposing this facility would say they want offenders closely supervised upon release, they just don't want them in their neighborhood. The tragically ridiculous and ignorant part of that stance is that the folks in such facilities were their neighbors before they were drug offenders - when they get out, back to your neighborhood is where they're headed, anyway - just with less supervision.

If I were Jewish, this would be a good moment for use of the word, "Oy!" - it expresses a sentiment that doesn't quite have an English equivalent. Sometimes the stupidity is so visceral, it hurts!

TDCJ's 'meanest day'

TDC Director W. J. Estelle Jr. called Aug. 3, 1974 the “meanest day in the history of our agency.” That's an awfully mean day. The Huntsville Item published a column this morning by Lyndol Richardson commemorating the lingering trauma to the town caused by a deadly, 11-day hostage episode 34 years ago stemming from an escape attempt gone bad:

the siege ended with the deaths of two Windham School District employees, two of the hostage-takers and two hostages. A Catholic priest, who volunteered himself in exchange for some or all of the hostages, lay injured along with the last living convict abductor.

Harris County voters won't see jail bond vote this November; Tyler will

While Smith County (Tyler) voters will vote on proposed jail bonds in November for the third time in as many years, in Houston the Harris County Commissioners Court wisely declined to subject voters to a second jail bond election this November, suggesting they may ask again next May or even sometime beyond that. Reported the Houston Chronicle ("Jail bond issue likely to miss ballot," Aug. 2):

Although a bond proposal was discussed at last week's meeting and is on the agenda for Tuesday's session, County Judge Ed Emmett and two commissioners said Friday they are not ready to bring a new measure to the electorate. Voters rejected the original $245 million plan last November by a 51-49 margin.

Emmett and Commissioners Sylvia Garcia and Steve Radack each had their own reasons for wanting to delay a vote, from desiring further studies of the overcrowding issues at the jail to complaints over the city of Houston's contributions to the joint project.

But the reality is the county would have a difficult time getting the bond approved in an election where black and Hispanic voters are expected to head to the polls in droves amid intense scrutiny of the local criminal justice system, political analysts said.

Opposition from those groups was one major reason the proposal failed in 2007, they said.

"At this point, it is difficult to imagine how the county would sell the bond to the voters," said Franklin Jones, a Texas Southern University political scientist.

A second loss at the polls would seriously hamper the county's ability to move forward with building a facility the Sheriff's Office has deemed crucial for dealing with mentally ill inmates and those staying behind bars a short time.

"The worst thing we could do is to hurriedly put it on and get defeated a second time," Garcia said. "I think that would hurt us in the long term."

The biggest barrier to Harris County jail building isn't having enough time to convince the voters about the plan, of course, but how to time the vote for an election cycle that will have low turnout, particularly in black and Latino-dominated areas of Houston which killed the jail bonds last year. The same voters will likely come out in force for Barack Obama which would ensure jail bonds defeat. Similarly, even next May such voters may have stakes in city elections that drive them to the polls. Look for commissioners to put the proposal on a ballot next November or beyond in a low-turnout election when no major candidate races are in the mix and conservative voters in the western part of the county hold more sway.

In Tyler, they've already suffered through the ignominious blunder of losing unpopular jail bond elections two years running, but apparently stubborn officials there plan to keep trying until they get what they want.

Stratfor: Bioweapons an unlikely means of terrorist attack

News this week of the suicide by a US bioterrorism scientist just before his indictment for the 2001 anthrax attacks caused me to dredge up some old research and writing of mine from before the launch of this blog on the topic of emerging bioterrorism threats. At the time, I worked for ACLU of Texas and there weren't too many security experts speaking out who publicly agreed with my layman's assessment: that the risk from expanded research into obscure, deadly bugs, sometimes ones the scientists themselves genetically engineer, outweighs the chance that Al Qaeda would successfully attack us that way.

Several years later I'm glad to see expert assessments changing to recognize the hard truth: We have met the bioterrorism threat and it is us. At Stratfor, an Austin-based private intelligence firm, Fred Burton and Scott Stewart offer an essay on the free part of the site ("Busting the anthrax myth," July 30), in which they declare:

We must admit to being among those who do not perceive the threat of bioterrorism to be as significant as that posed by a nuclear strike. To be fair, it must be noted that we also do not see strikes using chemical or radiological weapons rising to the threshold of a true weapon of mass destruction either. The successful detonation of a nuclear weapon in an American city would be far more devastating than any of these other forms of attack.

In fact, based on the past history of nonstate actors conducting attacks using biological weapons, we remain skeptical that a nonstate actor could conduct a biological weapons strike capable of creating as many casualties as a large strike using conventional explosives — such as the October 2002 Bali bombings that resulted in 202 deaths or the March 2004 train bombings in Madrid that killed 191.

We do not disagree with [Department of Homeland Security] statements that actors such as al Qaeda have demonstrated an interest in biological weapons. There is ample evidence that al Qaeda has a rudimentary biological weapons capability. However, there is a huge chasm of capability that separates intent and a rudimentary biological weapons program from a biological weapons program that is capable of killing hundreds of thousands of people.

Burton and Stewart offer an assessment that was considered near-blasphemous when I promoted the same idea back in 2002 - Al Qaeda is highly unlikely to attack us this way:

Operating in the badlands along the Pakistani-Afghan border, al Qaeda cannot easily build large modern factories capable of producing large quantities of agents or toxins. Such fixed facilities are expensive and consume a lot of resources. Even if al Qaeda had the spare capacity to invest in such facilities, the fixed nature of them means that they could be compromised and quickly destroyed by the United States.

If al Qaeda could somehow create and hide a fixed biological weapons facility in Pakistan’s Federally Administered Tribal Areas or North-West Frontier Province, it would still face the daunting task of transporting large quantities of biological agents from the Pakistani badlands to targets in the United States or Europe. Al Qaeda operatives certainly can create and transport small quantities of these compounds, but not enough to wreak the kind of massive damage it desires.

That's exactly right. Most bioweapons attacks fail or kill at most a few dozen people and delivery systems to turn bioweapons into WMD require super high levels of sophistication. Al Qaeda knows it could kill more people than that by stealing the nearest plane, or buying one.

By contrast, the story of the 2001 anthrax attacks began in 1981 with cultures extracted from a dead cow along the Texas-Mexico border that was bred into a bioweapon-ready strain by scientists at Fort Detrick, then weaponized into a powder for delivery at Dugway Air Force Base in Utah. This event was not an attack by external terrorists but was enabled by practitioners of the black arts within the American defense establishment itself, whether or not the man who committed suicide was responsible.

Like the Stratfor writers, I agree it's worthwhile for the United States to continue"efforts to undermine the biological warfare plans and efforts of militant groups such as al Qaeda." However the massive bioweapons research in American universities studying super-dangerous bugs in BSL-3 and 4 labs IMO creates more risk than it resolves and diverts primary research dollars toward dangerous and unproductive ends.

Serious debates about security can only occur in the face of accurate, un-hyped risk assessments, so the Stratfor folks are providing a valuable service on that score.

BLOGVERSATION: See three posts by