Friday, October 31, 2008

Materials from Indigent Defense Conference

In their e-newsletter this week, the Texas Criminal Justice Coalition provided links to presentation materials from a conference I attended last week on indigent defense. They wrote:
The Task Force on Indigent Defense (TFID), in collaboration with the Office of Court Administration (OCA), held its 6th Annual Indigent Defense Workshop on October 23-24, 2008. If you were unable to attend, check out the workshop coursebook and presentations available at the Task Force website. The Task Force staff did an amazing job pulling together valuable resources that counties can use to improve the delivery of indigent defense services.

Key items of discussion at the workshop included:
See related Grits posts:

Jailed on Principle: Officers need authority for dispute resolution in field

A Texas man went to jail on principle in Georgia this week, but it wasn't some latter-day civil rights protest:
Fulton County authorities arrested 40-year-old Dan Linscomb of Texas City, Texas, last week for refusing to pay his tab at the all-you-can-eat Iron Skillet buffet in northwest Atlanta. Officials say Linscomb ate at the buffet and let his girlfriend eat from his plate.

The restaurant charged him for two $7 meals, which he refused to pay. Linscomb was taken to the Fulton County Jail on a charge of theft of service. Fulton County Sheriff's Sgt. Nikita Hightower said Linscomb was released two days later after pleading guilty to a lesser charge of disorderly conduct.

I've little doubt Mr. Linscomb was guilty of technically violating some law somewhere on the books in Georgia. But I'm equally confident that nobody goes to jail over $7 unless they're doing it to prove a point - in this case, he didn't believe his girlfriend's de minimus nibblings constituted a second meal. (On that question, I take no position. Quien sabe?)

The incident reminds me of the famous economists' Ultmatum Game, in which a subject is given some amount of money, say $10, to split between themself and another person. Whatever amount of money they give, the other has to take or leave - no negotiating - but if the second person rejects the money, both parties get nothing.

Rational self interest (as defined by economists) would dictate that no matter how low the amount offered by the other party, you maximize your income by taking whatever you're given. But in practice, people interject fairness concerns into their economic judgments, and sure enough many people in the Ultimatum Game refuse payment altogether if they deem the offering so low as to be unfair.

That's what this guy did. He considered what was happening unfair, so he refused to play the game and everybody lost. The incident did the restaurant owner little good, even if they did ultimately extract the $7 from him at the end of the process. Meanwhile, Fulton County taxpayers probably paid somewhere between $200-$300 to book and jail the guy for a couple of days, more if they had to appoint him a lawyer. Nobody really wins and everybody is dissatisfied with the outcome.

Frequently police officers enter an emotional situation and find themselves moderating informally in some dispute between individuals where very little is helped, and the problems are only postponed or aggravated, by taking someone to jail.

Assuming there's not more to the story (no violent behavior, etc.), what would have been a better outcome here? I've heard Marc Levin from the Texas Public Policy Foundation propose giving police officers more dispute resolution authority out in the field (particularly in juvenile cases), perhaps solving a conflict via an impromptu contract (enforced with the alternative of arrest) instead of taking someone into custody. If I'm not mistaken (though it didn't seem to make it into my notes), Leigh Garrett described similar field-resolution strategies used by police in South Australia.

You hear many departments talk about "community policing," but the term seems to mean something different to nearly everyone who uses it. I'd like to see community policing strategies give officers more dispute resolution authority in the field to resolve cases like this one, if possible without necessarily taking anyone to jail. (You'd need to create procedures and training for dispute resolution functions, since that task's a little different from the job they're trained for now.) Perhaps then some of the truly petty stuff really wouldn't need to rise to the level of criminal prosecution and clog up the courts and the jails just because arrest is the only tool in the officer's toolbox.

BLOGVERSATION: Scott Greenfield's reaction to this case at Simple Justice makes some excellent points, particularly that this should have been considered a civil rather than a criminal dispute. A commenter points to this case law which seems to support that position rather strongly (though it's not from the 5th Circuit.) Greenfield also objects to giving police more dispute resolution power "because their opinion on who is right and wrong is utterly irrelevant. Who cares what some cop thinks?" See more discussion by foodies at Yum Yum Sugar.

Pushback beginning on Halloween sex offender hype

I'm glad to see this year more thoughtful critiques popping up of grandstanding by law enforcement and the annual, mostly fact-free media hype surrounding registered sex offenders and Halloween. (See prior, related Grits posts.) In Maryland, officials partially backed off their "scarlet pumpkin" strategy after becoming the butt of national jokes, reports the Washington Times:

The bright orange signs, reading, "No candy at this residence," in all capital letters, were sent to the state's 1,200 violent and child sex offenders earlier this month along with instructions that they must post them on their front doors on Friday evening.

But the plan became fodder for television comics ranging from Jay Leno to the "Saturday Night Live" cast after details were reported Oct. 15 by The Washington Times.

"Sex offenders in Maryland are now required to post signs that read, 'No candy at this residence,' on Halloween or face a possible parole violation," Seth Meyers deadpanned on the 'Weekend Update' part of NBC's long-running Saturday night program. "They are also being required to take down the signs that read, 'Knock if you can keep a special secret.'"

Laughing at stupid public policies is sometimes the best way to influence public opinion, so I'm glad to know the Saturday Night Live piece struck a nerve and many in the public apparently see through the hype. After all, trick or treaters are statistically much more likely to be hit by lightning than molested by a registered sex offender while soliciting candy.

Even more promising, reports the Wall Street Journal Law Blog, this week "a federal court temporarily struck down two provisions of a Missouri law that banned, among other things, sexual offenders from having “Halloween-related contact” with children." In that case:

according to a ruling ... by U.S. District Jude Carol Jackson, Missouri sex offenders won’t have to comply with parts of a new state law. The St. Louis Post-Dispatch reports that Judge Jackson temporarily struck down two provisions as unconstitutionally vague: a ban on “Halloween-related contact” with children and a requirement to stay inside from 5-10:30 p.m. “unless required to be elsewhere for just cause.” (Click here for the law.)

Apparently, Judge Jackson was concerned that in some cases, parents could be punished for Halloween activities with their own children, such as “carving a pumpkin in the privacy of your kitchen with your 5-year-old child.” She questioned whether such parents might have to send their kids away on Halloween to avoid prosecution. “It’s not too much to expect criminal laws to be clear,” she said.

The ruling came after four convicted sexual offenders sued this month, represented by the ACLU of Eastern Missouri. Their lawyer, Anthony E. Rothert, told the NYT: “Once people have completed their sentences, you can’t go back and punish them for the same crime.”

The state is appealing that case so perhaps by next Halloween there will be more guidance from federal courts on what type of restrictions may be applied to sex offenders on Halloween. Given the ruling from the Show-Me State, I have to wonder if even more restrictive Texas policies would pass constitutional muster if they were challenged? (UPDATE: A three judge panel on the 8th Circuit reversed the district judge and said the restrictions could stand until the case is fully resolved. Sex Crimes Blog, Constitutional Law Prof, Above the Law, Althouse, TalkLeft, SexOffenderResearch, and Volokh Conspiracy are also covering the case.)

In several Texas counties, including Lubbock, Hidalgo, and Guadalupe, local authorities are rounding up sex offenders on probation or parole to spend Halloween night in the jail or county probation offices. This seems especially silly for a number of reasons. First, the officers monitoring these people would do more to benefit public safety if they were out on the street looking for drunks or teenage vandals on a night with one of the highest youth crime rates of the year. In Lubbock, in particular, extra traffic from the approaching UT-Texas Tech game tomorrow night (my father lucked out and will get to to watch the game from box seats) poses a much greater threat than the remote chance a trick or treater will be molested.

Even more silly, these just-for-show tactics ignore most registered sex offenders, applying only to those still formally on probation or parole. In Bexar County, for example, where law enforcement will waste resources doing house to house checks on supervised sex offenders instead of a roundup (which their DA Susan Reed had supported), "Of the 3200 sex offenders that are registered, approximately 814 are under supervision, which is probation or parole."

So if Bexar's numbers are typical, the no-candy restrictions only apply to about a quarter of registered sex offenders! To the extent the tactic addresses a real threat, that makes the policy counterproductive and harmful (instead of just wasteful and useless) because the publicity could give people a false sense that every registered sex offender will be restricted from participating in Halloween when in fact the overwhelming majority can put up decorations, give out candy, and fully participate in the holiday once they're off probation or parole. Despite that reality, over and over we see stories like this one declaring that "It is against the law for sex offenders to decorate their homes for Halloween or place anything that might attract children," but that's just not true for most people on the registry.

El Paso and Houston are is similarly expending patrol resources to check up on sex offenders instead of focusing on DWI, vandalism, or youth crime. Texas Attorney General Greg Abbott has predictably jumped on the bandwagon. (The blog SexOffenderResearch has numerous posts about ongoing crackdowns in other states.)

Of course, in the only documented case in history of a Halloween related child abduction (35 years ago in Wisconsin), the perpetrator had no prior criminal history and so wouldn't have been captured by any registry-related restrictions. Most sex crimes are committed by people who aren't on the registry, and even if that weren't true, the much-publicized restrictions don't apply to 3/4 of registered sex offenders. What a wasted effort!

The annual demagoguing over sex offenders at Halloween is a classic example of what security expert Bruce Schneier calls "security theater," hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives. The approach is dumb, it's wrong, and it makes the public less safe.

Perhaps we'll look back sometime in the future and consider 2008 the year the media and the public began to re-think these thoughtless, hype-driven policies. I hope so.

RELATED: On the bright side, not everyone in the MSM, apparently, has bought into the hype. This excellent article from the blog Sex Offender Research points us to " ONE -- TWO -- THREE -- FOUR -- FIVE articles explaining real dangers" (e.g., drunk driving, fire hazards, choking, food allergies) facing kids and families on Halloween.

Thursday, October 30, 2008

Roundup of think tank's criminal justice work product

The latest e-newsletter from the Texas Public Policy Foundation's Center for Effective Justice featured links to much of director Marc Levin's excellent work over the last several months which I'm certain will interest Grits readers:
1) Recent Publications

Measuring Performance in the Juvenile Justice System

As the Texas Youth Commission (TYC) and Texas Juvenile Probation Commission (TJPC) undergo sunset review, their performance measures should be enhanced to focus more on outcomes such as restitution to victims, recidivism, educational progress, and administrative costs.

Occupational Licensing & Overcriminalization: Testimony Before the House Government Reform Committee

Texas regulates too many occupations, applies excessive criminal penalties to violations of licensing rules, and too often prevents otherwise qualified individuals from obtaining licenses because of a minor and sometimes decades-old conviction.

Recommendations Submitted to the Sunset Commission on Reforming the Texas Youth Commission and Juvenile Probation Commission

This document highlights key reforms that would strengthen the state’s juvenile justice system, such as changing the funding system to incentivize positive outcomes and provider greater flexibility for counties to utilize local facilities and programs instead of TYC.

Five Technological Solutions for Texas' Correctional and Law Enforcement Challenges

Advances in electronic monitoring, alcohol detection, and interoperability between law enforcement and private security can produce better public safety results while minimizing costs to taxpayers.

Work Release: Con Job or Big Payoff for Texas?

The Texas experience and evidence from around the nation indicates that work release programs that properly monitor and carefully screen participants can reduce recidivism and costs to taxpayers while protecting public safety.

2) Commentaries

Rewrite Texas Graffiti Laws

This piece, which appeared in the Houston Chronicle, argues graffiti laws in Texas cities should be changed to empower victims and communities while holding offenders accountable.

Getting More Out of Prisons

This commentary published in the Fort Worth Star Telegram spotlights the criminal justice blueprint released by the British Conservative Party that advocates funding prisons and parole partially based on outcomes such as recidivism and discusses similar initiatives in Texas.

3) Speaking Freely Postings & Podcasts

Measuring Performance in the Juvenile Justice System (podcast)

More Money for More of the Same (podcast)

County Commissioners key to jail decisions

I'm always pleased to see policy debates about public safety make it into electoral campaigns, but the back and forth in Dallas this election cycle between the incumbent Sheriff and challenger over the jail have confirmed my sense that County Commissioners Court races are where jail problems and solutions really need to be discussed.

Last week at the Dallas News, Kevin Krause analyzed the two Sheriff campaigns' descriptions of the jail's problems and who's to blame and pronounced, "Neither is entirely correct" ("No easy answers on jail: Frequently cited issue in Dallas' Sheriff's race is often oversimplified," Oct. 24). For example, the challenger tells voters the jail still isn't passing state inspections, without mentioning that fire-safety improvements and other upgrades needed to pass simply weren't funded by the Commissioners Court:

Federal inspectors agreed earlier this year that there was still room to improve. A separate report from the state in January noted that intercoms were still broken, numerous toilets, showers and lavatories weren't working, and air vents were clogged with toilet paper.

The county commissioners are still spending money on maintenance and repairs. This week, they approved an additional $63,000 to replace more sinks and bulkheads and complete shower improvements – part of a half-million-dollar job. ...

County officials say the jails have been under intense scrutiny not seen before because of problems with fire-safety equipment as well as medical and mental health services, none of which the sheriff controls.

Allen Clemson, the Commissioners Court administrator, said that had the life-safety issues been resolved, state jail inspectors probably wouldn't have failed the jails this year for sanitation and maintenance problems.

That point is not lost on Sheriff Valdez, who has expressed frustration that it's taken four years and counting to replace fire-detection and smoke-removal systems. The commissioners, she said, tried to save money on the front end.

Dallas right now has an empty jail wing that was closed because the commissioners court wouldn't/can't/won't hire enough guards to staff it, necessitating at one point during Valdez's tenure the impromptu release of nearly a thousand inmates to comply with state jail standards, all for reasons entirely beyond her control. Even so, lately, the Dallas Commissioners Court has been insisting overtly that the Sheriff fill up the jail with petty Class C (ticket only) offenders to boost fine income. So they want to use the jail to extract money from average people who can't pay large fines, but don't want to pay to keep it up.

Jails need to be debated in county commissioners court races because they control the purse strings and paying for jails and the justice system is typically the most expensive portion of the county budget. The Sheriff plays almost purely a management role, though certainly if the jail is poorly managed, the Sheriff must be accountable - it's really the primary job function, after all, especially in a large urban county. But a sheriff can't, for example, install fire safety equipment when the county refuses to buy it. Besides, as Krause notes, it's the pocketbook issues voters really care about, anyway:
How inmates are treated isn't one of voters' top issues, political analysts point out. But they say voters do care about financial liabilities posed by jail problems because those have an impact on their wallets. Dallas County was hit with recent settlements and judgments totaling nearly $2 million in jail-neglect lawsuits. The alleged abuse occurred under the previous sheriff.
For further evidence that county commissioners are where all the policymaking action is, look no further than 90 miles east of Dallas in my hometown of Tyler where the Smith County Commissioners Court has placed unwanted jail bonds on the ballot for the third year in a row. For good or ill, it's the Commissioners Court there who are pushing the jail hard, even though voters have twice overwhelmingly opposed it. Other elected offiicals - the Sheriff, judges, the DA - have been peripheral players in Tyler's debate for one simple reason: The Commissioners Court holds the purse strings.

Paying for jails and courts is the single biggest expense in county budgets, but we rarely hear the economics of crime and punishment debated. The media and the public tend to portray jails as the Sheriff's job, or look to judges, only, for issues affecting the courts. More often than not, though, because of the structure of Texas government, the most important decisions about what county government actually does (i.e., what it pays for) lie firmly in the hands of the Commissioners Court.

Corroborating informant testimony, reporting crimes by snitches among ACLU recommendations

On Monday, ACLU's Texas affiliate and the group's Drug Law Reform Project held a press conference to release a briefing paper (pdf) recommending changes to how testimony from confidential informants is gathered and used. While I haven't seen any press coverage, many of their proposals, for long-time readers, will have a familiar ring:
1. Require any warrant based on information from a confidential informant to include information on the informant.

2. Corroborate information from a confidential informant used to acquire a warrant.

3. Provide information on any confidential informant to all parties prior to plea bargaining.

4. Require a reliability hearing for informants prior to the introduction of informant testimony.

5. Corroborate information from incarcerated informants.

6. Require each law enforcement agency maintain an informant registry.

7. Establish performance measures that track law enforcement effectiveness.

8. Report crime committed by confidential informants.

9. Establish grants to improve law enforcement training relating to gathering informant testimony.

10. Require a signed statement from confidential informants prior to use of informant-derived evidence at trial.
According to the briefing paper, not only can uncorroborated informant testimony lead to false convictions of innocent people, "There is an incentive for law enforcement to ignore illegal activity by informants because addressing the criminal activity would stop or impair a criminal investigation."

Wednesday, October 29, 2008

Gov. Perry wants his own version of Clinton's COPS program ... to fight Los Zetas?

Readers may recall that in 2007, the Texas Legislature backed Governor Rick Perry's much-ballyhooed plan to give more than $100 million in pork barrel grants to border Sheriffs, splitting the funds equally (more than $6 million apiece) among sheriffs in the 16 counties along the border to pay for extra equipment and overtime for patrols.

Given that massive, recent state investment, I was surprised that no one in the mainstream media picked up on the fact that one of those Sheriffs recently was indicted and accused of working in cahoots with the Mexican Gulf Cartel(!), making him the second border Sheriff during Perry's tenure to face charges for assisting Mexican drug gangs, along with many other law enforcement agents.

Though the MSM hasn't yet linked Sheriff Guerra's indiscretions to his border security work or probed how he spent his grant money, I've already wondered how the Governor could justify extending this expensive pork program now that it turns out some of the money went to a Gulf Cartel operative. The cost is even harder to justify since there's no evidence it had any effect on border crime.

Clearly, though, the Governor thinks that giving millions in state border security money to an alleged Gulf Cartel flunky won't hurt his chances of re-upping the program, particularly if he sweetens the pot with grants for big-city PDs as well, reported the San Antonio Business Journal ("Gov. Perry allocates funds to help SAPD fight gangs," Oct. 29):
As part of his anti-gang strategy, Perry says he plans to ask the 2009 Texas Legislature for $110 million in sustained border security funding and another $24 million to combat transnational gang activity across the state.
As he previously did with funding for border sheriffs, Gov. Perry is using federal Byrne grant funds to initiate a small amount of funding to local police on his own authority. (This pot of money shrank significantly in recent years thanks to pressure by the Bush Administration; it once funded Texas' network of drug task forces before they were brought down by corruption scandals in Tulia, Hearne, and elsewhere.) Again from the SA Business Journal:

Texas Gov. Rick Perry has allocated nearly $560,000 to help the San Antonio Police Department target transnational gang activity.

The funding will come from the federal Edward Byrne Memorial Justice Assistance Grant Program and will be distributed by the Governor’s Criminal Justice Division.

Perry will allocate a total of $4 million in Criminal Justice Division grant money to Arlington, Austin, Brownsville, Corpus Christi, Dallas, El Paso, Fort Worth, Garland, Houston, Irving, Laredo, McAllen and San Antonio. The funds will be used as overtime pay for officers who patrol hot spots of gang activity.

Is it just me, or is this is an odd shift in focus? The "gang" problems in San Antonio, for example, are scarcely (at least directly) related to "transnational" drug gangs like the Gulf Cartel who Perry's border security initiative targeted. And they're certainly not affiliated with "terrorists," which is how he originally sold the program. To hear the Governor's latest statement, it sounds more like he intends the money to simply supplement regular police patrols:

“No one has a better grasp of the situation on the ground than the peace officers who patrol our neighborhoods and tackle the challenges of law enforcement every day,” Perry says. “These officers are the key to our fight against transnational gangs, and Texas is committed to ensuring that they are well equipped to combat these organizations.”

Governor Perry is basically asking the Texas Legislature to give him his own version of President Bill Clinton's COPS program, which claimed to put 100,000 new local officers on the street nationwide. Indeed, Perry's proposal suffers from the identical failure as Clinton's COPS inititive: It wasn't the feds' job to fund local police officers, and it's not state government's, either.

I didn't like Governor Perry's border security plan because it focused on maximizing pork and minimizing accountability. But at least I understand that border security is a state-level priority and requires a statewide strategy and response. I do NOT think it's state government's role to pay for overtime for patrol officers at local, municipal police departments. Once they become dependent on state funding, it'll be nigh-on impossible to ever get them off the state teat.

MORE: WOAI Radio has more from Perry's comments, including:

Perry cited the threat from Mexico's Gulf drug cartel and criminal gangs like Barrio Azteca, MS-13, and the Mexican Mafia.

"The threat that is posed by these trans national gangs is very very real," Perry said. "These people don't hesitate to kill, to kidnap, to torture. as a means of eliminating their criminal competition, or, for that matter, terrorizing citizens into silence. Mexican drug cartels are using stolen vehicles, weapons, there is human cargo involved here."

Perry's initiative comes as the FBI in San Antonio issued what it calls a 'Joint Assessment Bulletin' to law enforcement agencies statewide, warning that the Gulf Cartel is attempting of gain control of major drug trafficking routes through Texas, including Interstate 35.

"We are talking about a very specific group called Los Zetas, which are a paramilitary drug trafficking group operating in Mexico, which have been known to conduct some activity in the United States," Special Agent Erik Vasys told 1200 WOAI's Michael Board today.

Los Zetas are mainly former Mexican Army special forces soldiers, many of whom have been trained by the United States, who are hired as 'enforcers' for the Gulf and Sinaloa drug cartels in northern Mexico.

Deputy U.S. Marshal James Benjamin in San Antonio says the incident that prompted the warning is the arrest of a major drug gang commander earlier this week near Tijuana.

"There will be some jockeying as to who will be in charge of that cartel, and we expect some renewed violence," Benjamin said.

Vasys says there is no specific threat from the Zetas.

"Law enforcement regularly receives raw intelligence, information from a variety of sources, which is put out in bulletin form to alert law enforcement to trends that they may see on a daily basis."

Vasys said Los Zetas are a 'significant problem in Mexico' and have 'the potential to pose a significant problem to law enforcement in Texas.'

Perry says his program is aimed at 'dismantling' Mexican gang activity in Texas.

I'll give the Governor this much credit: I'm glad he's finally started talking publicly about the biggest public safety threat on the southern border as opposed to demagoguing in campaign commercials about "terrorism," but I don't think that expanding a program with poor results to more jurisdictions is really the way to go.

Tuesday, October 28, 2008

Open Thread

I'll be away from the blog because of a death in the family for the next day or so. Use this as an open thread to let me know what's going on in your neck of the woods.

In particular, I'm interested in hearing about any local criminal justice-related elections (Sheriff, DA, judges, jail bonds, etc.) you may be following.

Hasta la vista.

Back to the future: California showdown recalls Ruiz in Texas

When state prison systems and federal judges collide, typically the guys in the black robes come out on top - ask Judge William Wayne Justice and everyone involved in Texas' Ruiz case.

California has chosen to test that truism, defying a federal court order to expand prison hospital capacity or reduce the inmate population. Reports the San Francisco Chronicle:
The lawyer representing California in a lawsuit over prison health care said Monday that state officials aren't ready to comply with a federal judge's order to turn over $250 million for new hospitals for inmates, despite the possibility of a contempt-of-court order against Gov. Arnold Schwarzenegger.

U.S. District Judge Thelton Henderson ordered Schwarzenegger and state Controller John Chiang on Oct. 8 to tell him how soon they would provide the money, the first installment in an $8 billion construction plan that a court-appointed manager drew up to raise the prison health system to constitutional standards.

Henderson said at an earlier hearing that he was prepared to hold Schwarzenegger and Chiang in contempt, with fines against the state of as much as $2 million a day, unless they turn over $250 million in prison funding that the Legislature has already approved. But at Monday's hearing in San Francisco, Deputy Attorney General Daniel Powell said the state is not legally required to follow such an order and has no immediate plans to do so.

"This court has no authority to order construction of prisons," Powell told Henderson. He said state officials must review the construction plans, decide whether they comply with legal restrictions and seek specific approval from the Legislature.

If the state maintains that position, Henderson said, he'll go "full speed ahead" with contempt proceedings. Later in the day, he ordered state officials to transfer $250 million to the prison health system's federal overseer by Nov. 5 or face a contempt hearing a week later.

"Despite the progress that has been made, the health care system remains in a state of crisis," the judge said at the hearing.
California's got a worse overcrowding problem than Texas, even, with more prisoners stuffed into space designed for fewer inmates. But it's their healthcare system that's drawn down the wrath of a federal judge, and unfortunately Texas already had big problems in that regard even before Hurricane Ike blew down UTMB's Galveston operation like the Big Bad Wolf. I never got a great answer about what's happening with post-Ike prison healthcare. Readers with any insight on that topic, please let us know in the comments.) Thirty percent of Texas prison inmates are past clients of the mental health system, the number of sick, elderly inmates is rising, and more inmates die in Texas prisons than in California - about 2,000 over one recent four year stretch.

All this happened because California's Legislature refused to pay for an adequate health system. Given chronic understaffing problems in Texas and the sorry state of our prison health system (and UTMB), I can't help but wonder if Texas might face a similar showdown someday over essentially the same shortcomings once there's no longer a Texan appointing the US Attorney General?

Monday, October 27, 2008

An 'I Really Really Like You Crime'?

In new TV cop show Life on Mars, the main character (played by Jason O'Mara) is a modern-day officer who inexplicably time travels back to 1973 where he finds himself working in the NYPD homicide unit. In the most recent episode, while investigating the killing of a veteran back from Vietnam who turned out to be gay, the time traveling cop declared to his boss, played by Harvey Keitel, "See, I told you it was a hate crime."

Obviously unfamiliar with the term that wouldn't be coined until years later, Keitel's character brilliantly replied, "As opposed to an 'I really really like you crime'?"

I couldn't help but recall that scene upon reading press coverage about a murder last month in Paris, Texas where a black man was allegedly run over and dragged to death by two white guys in a pickup truck, an incident that's being compared in the press to the infamous dragging death of James Byrd in Jasper. The victim's mother called it a "hate crime" and the Dallas News' coverage even included a sidebar documenting historic lynchings in Paris and northeast Texas going back to the 19th Century.

But how does the "hate crime" label jibe with the fact that the victim and his alleged killers were actually friends and close associates? Reported the Dallas News:

Mr. McClelland [the victim] was last seen alive drinking with Mr. Finley and Mr. Crostley, both 27.

The men were thought to be friends. Mr. McClelland was convicted of perjury for lying on Mr. Finley's behalf in a manslaughter case. Mr. Finley went to prison from 2004 to 2007 for shooting a friend in a Paris park; Mr. McClelland was sentenced to a two-year term.

After midnight on Sept. 16, the suspects told police, the men ran out of beer and drove to Oklahoma for more. On the way back, they said, there was an argument over whether Mr. McClelland was too drunk to drive, and he got out of Mr. Finley's pickup, taking a couple of beers with him.

They said that was the last they saw of him.

But investigators found human blood on the undercarriage of Mr. Finley's truck, according to an affidavit filed Sept. 24, and witnesses quoted Mr. Finley and Mr. Crostley as saying that they ran over Mr. McClelland on purpose and dragged him "about 40 feet."

For Ms. Cherry and others in the community, that sounds like what happened a decade ago to Mr. Byrd.

There are differences, however: Mr. Byrd was tied to a pickup and dragged for three miles, while Mr. McClelland was struck and dragged underneath the truck for several feet. Also, two of the three men convicted of killing Mr. Byrd had ties to white supremacist groups and prison gangs. Prison officials say there are no such connections to the suspects in this case, despite rumors to the contrary.

I find it hard to imagine the assailants had some ulterior racist motive when the black victim in question actually committed perjury in a previous manslaughter case to protect one of his killers. Clearly these men were close associates if the victim had lied in court to protect one of them and they were still drinking buddies after he'd done prison time over it. There must be some other, more mundane motive that explains what happened.

I'm not defending McClelland's killers one bit; if the accused men did it, they deserve harsh punishment (the victim's mother told the News she opposes the death penalty and would like to see them get Life Without Parole). I just hate to see activists and the media ginning up racial animosities when the facts don't warrant it. Every murder is an unfathomable tragedy for those involved, but not every white on black murder is a "lynching."

There are plenty of real examples of racism in the world, and especially the justice system, without the media manufacturing alleged racial motives every time there's a mixed-race crime.

BLOGVERSATION: More from Dallas South Blog, which gives background from a Chicago Tribune story on the episode where the victim in this case provided a false alibi for one of his alleged killers. Alan Bean at the Friends of Justice blog agrees with the hate crime meme.

Contraband Update

The Texas prison system remains on lockdown searching for contraband; here are a few interesting details from recent coverage.

For starters, the blog Texas Prison Bidness informs us that private prisons have contraband smuggling problems, too, while the Houston Chronicle published an interesting story about how cell phones are smuggled into supposedly secure facilities.

The Austin Statesman reports that searches have been expanded to staff leaving prisons as well as those entering them:

At first, everyone going into Texas prisons was being searched as part of a massive contraband sweep. On Friday afternoon, officials ordered everyone leaving to be searched, too.

The reason: At one Beaumont prison, officials reportedly found guards carrying out cell phone chargers — presumably to keep inmates from getting caught with them.

The same story has this astonishing tidbit letting us know that nearly 1/3 of the state's cell phone smuggling problem occurs in one unit:
With more than 2,800 convicts and 776 employees, the Stiles Unit has the worst problem with smuggled cell phones. Since January, 180 cell phones have been seized there, of the more than 600 statewide, according to agency statistics.
We also hear more about employees' negative reaction to new policies:
At some prisons, officials who didn't have permission to speak publicly said the pat searches are triggering dozens of grievances and formal complaints, including some in which female employees alleged that male searchers improperly touched their breasts. At others, employees have complained they are not being allowed to bring in lunches and other personal items they had previously, said Brian Olsen, executive director of a labor union that represents some Texas correctional officers.
Another story from the Dallas News gave some interesting data on Texas prison contraband that surprised me, particularly the very low totals for the number of weapons found system-wide:

Item 2007 2008*
Prohibited alcohol 2 8
Prohibited cell phone 484 743
Prohibited drugs 512 405
Prohibited money 80 105
Prohibited tobacco 111 99
Prohibited weapon (such as shanks and razor blades) 10 8
*Through Oct. 20

Of course, not all contraband is harmful, even if it's prohibited. The same News story was accompanied by this photo of a "Prisonopoloy" board game created by a TDCJ inmate that was confiscated four years ago which now is housed in the Texas Prison Museum. It's a pretty impressive artifact:

Dallas police reexamining 'showup' policy

Grits has frequently discussed faulty eyewitness ID procedures used by police, and few such tactics are more problematic than use of the "showup," where police bring a single suspect in custody to see a witness or victim and simply ask, "is this the guy." As it turns out, reports the Dallas News, for the most part this tactic isn't necessary for good police work ("Dallas police view suspect showups," Oct. 25):

A Dallas police review of single-suspect "showup" identifications revealed that more than half may not have been necessary to make an arrest.

Police found 36 cases involving showups in a review completed this week of crimes from the last six months.

The examination began after an investigation earlier this month by The Dallas Morning News into eyewitness identification.

In 20 of the 36 cases, police already had enough information to make an arrest or there was already a warrant for a suspect in another crime, police said.

A photo lineup using six images could have been conducted later in those instances.

"A lot of times, it wasn't necessary," said Dallas police Lt. David Pughes, who is in charge of the review. "The patrol officers tried to make it an ironclad case."

That said, DPD's review likely isn't capturing all showups, said a nationally reknowned eyewitness ID expert, because usually they're typically performed by patrol officers and DPD only counted the ones done by detectives:

Gary Wells, an Iowa State University psychology professor and expert on eyewitness identification, commended Dallas police for conducting the review and other changes. But he said their assessment is incomplete because detectives typically aren't the ones conducting lineups. They might not remember that a patrol officer conducted a showup in a particular case.

"They are missing most of the showups," Dr. Wells said.

It's particularly troublesome if detectives "might not remember" that a patrol officer did a showup because it could taint future identification processes. After all, once police have shown you a guy handcuffed in the back of a police car, the odds that the witness would pick the same guy out of a photo array later are pretty high, whether or not it's actually the culprit.

In an op-ed, state Sen. Rodney Ellis proposed eliminating the tactic altogether ("Sen. Ellis to propose ban on police showups in Texas," Oct. 15):

"I think because of the outrageous number of wrongful convictions in Texas, it's time to begin the dialog [to ban showups]," Mr. Ellis said. "Whether or not I can get legislators to a point at which they would mandate it would not be used is a separate issue."

Dallas PD is in the process of creating a stricter policy, whether or not the Legislature is willing to actually ban the procedure:

"I think at the end the day, our policy will be more restrictive than the model policy," Chief Waldrop said. "The survey was more or less to determine the types of cases and the prevalence."

He said police expected to find that almost all the showups involved robberies. But that was true in only 13 of the cases. Ten were vehicle burglaries. Seven were thefts and five were burglaries. One was a sexual assault. ...

Lt. Pughes said there is no way to determine whether the showups were done improperly because the reports do not reflect how the showups were conducted.

Although the practice is highly suggestive, sometimes showups are conducted when suspects are in handcuffs or in the back of a patrol car. The planned DPD policy will forbid this.

It's particularly telling that no documentation is kept about when and how this procedure is used, making it easy to fudge results or to overlook cases where witnesses got it wrong. In any even, reports the News, for now:

No policy limits or prohibits showups, but a training bulletin issued last month forbids single-photo showups when the witness does not know the suspect by name and face.

But before the end of this year, DPD will begin tracking showups to better understand how often they occur, and the department will require a supervisor's presence at all such identifications, Chief Waldrop said. He said a department showup policy and training regimen will begin within 30 days.

The policy will have guidelines to make showups less suggestive, limit how long after a crime they can be conducted, and prevent them if an arrest can be made without them.

Sunday, October 26, 2008

Why jail people you're not going to charge?

Counties can save big bucks by eliminating jail time for people who're never charged with a crime if District and County Attorneys implement a "direct filing" system on the front end.

El Paso DA Jaime Esparza gave a presentation this week at a conference of the Texas Task Force on Indigent Defense about his county's upgraded information management system (DIMS), which allows police to immediately file cases with the DA instead of having prosecutors wait to evaluate the case until after the defendant sees a judge.

Harris County, he said, had the first direct filing system in the state. (See excellent bloggerly descriptions of Harris County's system here and here.) In Harris, police must get every arrest pre-approved by prosecutors who are on call 24 hours a day, 365 days per year to evaluate cases at the time of arrest. That eliminates needless delays that in other counties strand people in jail for days or weeks who will never actually be prosecuted.

Esparza declared law enforcement must get away from the idea that arrest is punishment, citing the old cops' adage enshrined in Grits' masthead - "you might beat the rap but you won't beat the ride." That approach maximizes cost to taxpayers and distorts the justice system with little public safety benefit.

There are 3 basic models used by different counties to arrest and charge people with a crime, said Esparza, and most use the third, most cumbersome one. They are:
  • Arrest - Charge - Jail
  • Arrest - Charge - Magistrate - Jail
  • Arrest - Magistrate - Jail - Charge
Direct filing coupled with pre-set bonds for routine cases (the first bullet) facilitates more rapid disposition of cases for people who would ultimately be released under any system. By contrast, the third approach maximizes the time defendants needlessly spend in jail waiting to be charged, frequently causing other undesirable consequences like losing their job, which makes it harder for them to pay fines and probation fees or turn their lives around.

Esparza explained the core assumption behind the system: Most cases are routine. On misdemeanor cases and low-level felonies, in particular, typically once a police car leaves the scene, they're never coming back. It's those routine cases (not more complex ones like murder or sexual assault) where the direct filing has the biggest impact.

Making charging decisions earlier in the process - in El Paso it happens before a defendant is ever booked into jail - reduces jail overcrowding and helps process court dockets more quickly.

In Harris County, he said, 25% of direct-filed cases are completed in just three days; that figure was 15% in El Paso, but it would be zero without the DIMS system.

For routine cases, there's a pre-set bond schedule so defendants can actually bond out BEFORE magistration. (That potentially saves the county money on indigent defense costs because, according to Indigent Defense Task Force chief Jim Bethke, if there's no magistration hearing, requirements to appoint counsel under the Rothgery ruling aren't triggered, a particular boon whenever charges aren't ultimately filed.)

Even for defendants who remain in jail, overall detention rates are lower with direct filing and cases are resolved much faster, reducing the length of pretrial incarceration. El Paso has an open file policy, so the DA's full file on the case is given to defense counsel within 24 hours.

While it might seem like being on call 24-hours a day would put a strain on prosecutors, as it turns out they're paid time and a half when working non-standard hours, so prosecutors tend to consider it a plum and seek out the assignment. Even with extra costs for prosecutors, though, overall savings to the county from DIMS has been about $1.49 million per year, said Esparza, mostly from reduced jail costs.

El Paso's Sheriff initially refused to participate and while that created headaches for the DA, it also created a situation where researchers could evaluate differences in cases depending on how they were filed. El Paso prosecutors receive offense reports an average of 7 hours after an arrest using the DIMS system. By contrast, offense reports for El Paso's non-DIMS cases take an average of 19 days to reach a prosecutor. That's a big difference!

In the meantime, taxpayers pay for the defendant to sit in jail, even though 19% of cases brought by police to the DA in El Paso don't result in prosecution, said Esparza (a figure which closely corresponds to the statewide average of 18%). In Harris County, according to our pal at the blog Life at the Harris County Criminal Justice Center, the arresting officer must phone the on-call Assistant DA, describe the incident and get agreement about the proposed charge up front, which prevents jailing people who will never charged.

When El Paso began using the DIMS system, said Esparza, the county jail was so crowded that officers were in many cases forced to give summons instead of making arrests. Now, he said, the county actually leases jail beds to the feds to generate extra income because the DIMS system reduced the jail population to such an extent. It's hard to argue with that kind of success.

RELATED: See this study of direct filing systems (pdf) by the Task Force on Indigent Defense.

Saturday, October 25, 2008

Around the web

Here are several stories I'd blog about if I had more time:

Smart policies can boost police coverage even in a bad economy

CNN had a story this week that I'm sure we'll be seeing much more frequently titled, "Police face cuts as economy falters." According to CNN:
U.S. police departments are streamlining patrols, reducing training and cutting back on some preventative programs as their budgets fall victim to the struggling economy.

Many police chiefs are warning deeper cuts may be coming. ...

A poll of 200 departments during the summer by the Police Executive Research Forum, which studies law enforcement trends, reported 39 percent of respondents said their operating budgets were cut because of the economy and 43 percent said the faltering economy had affected their ability to deliver services.
The Plano, TX Police Department was one of the examples cited - they're leaving vacant officer positions unfilled to save money.

This problem will likely only get worse, but there are two easy fixes Texas departments can implement to keep more officers on the street during the coming economic crunch:

First, more departments should embrace new discretion granted by the Legislature last year to give citations instead of arresting for low-level misdemeanors. In Austin, for example, 37% of all arrestees entering jail are there on charges for which they could have received a citation. That takes officers off the street to handle petty offenses and effectively reduces the number of cops on patrol.

In addition, cities could greatly increase their police coverage by requiring private security companies to do "verified response" before sending officers to react to alarms. As many as 99% of alarm calls are false alarms, and even when a crime did occur, typically the offender is long gone by the time police get there.

In some jurisdictions like Plano and Richardson, police spend more time responding to false burglar alarms than any other departmental function. Plano PD in particular spends about 10% of its officers' time annually responding to false alarms.

So implementing verified response would be the equivalent of increasing the size of their police force by as much as 10%, while using citations for low-level offenses would keep an even greater proportion of officers out on the street to perform more important tasks.

There's little doubt the economic downturn will affect law enforcement agencies' ability to hire more officers in the near future, so it's more critical than ever that officials use police resources wisely. These two ideas would supplement police coverage at no cost to the taxpayers. In fact, both would save taxpayers money while putting more cops on the street - truly a win-win scenario.

Did you visit your client in jail, yet?

At a truly excellent conference this week sponsored by the Texas Task Force on Indigent Defense, the indigent defense coordinator in Taylor County gave a description of the processes they use to ensure attorneys are promptly appointed for people in jail.

As mentioned earlier, the Supreme Court's Rothgery case now requires counties to provide lawyers to indigent defendants out on bond and many counties have not upgraded their indigent defense plans to accommodate that change. But processes for appointing lawyers for people in jail have problems too, and for those folks, Taylor County seems to have a good accountability system in place that goes beyond what most counties are doing.

Jennifer DeLeon Griffin, the Taylor indigent defense coordinator, pro-actively reviews the list of jail inmates who've not bonded out and do not have an attorney (if they have one, she emails the lawyer to let them know their client is back in jail). Then she visits the jail twice weekly to record requests for an attorney and gets them appointed ASAP. That's a pretty pro-active approach - lots of other counties just have requests go through the jailers which can cause unnecessary delay.

After counsel is appointed, Griffin periodically checks jail visitation records to find out if the lawyer has visited their client, which is supposed to happen according to county rules within five days. If the attorney hasn't visited, she contacts them with a reminder. If a second reminder is required, she also sends a copy to the judge so the lawyer knows the judge is aware of their delay. If that doesn't do the trick, she gets the judge to personally call the attorney telling them to follow up.

Griffin also created a county "complaint of attorney conduct" form for defendants to fill out if they're unhappy with their representation,, and those complaints are computerized so each judge can pull up all of a given attorney's complaints. Their county plan has a periodic review process for attorneys where judges look at complaints, non-compliance with attorney visits, etc., and make a decision whether to remove those who're not up to snuff.

Speaking of which, I heard a couple of interesting discussions at the event of processes for removing bad attorneys from the appointment list. The court administrator from Travis said their judges annually vet the list together and may decide to remove an attorney altogether, downgrade others to lower-level cases, and in some instances giving a reprimand/warning in lieu of removal. In some cases, judges told attorneys they needed to get a mentor to continue receiving appointments.

The first time Travis judges vetted the appointment list several years ago, targeted lawyers reacted with a howl of protest. In some instances their caseload was 100% appointed cases, so removing them from the list was essentially firing them as a lawyer and some were quite upset. As a result of that initial backlash, now when Travis removes somebody a county staffer meets with them to explain the judges' reasons and tell them what they need to do to regain their appointment status. By contrast, some counties just send them a form letter saying "you're off."

The Taylor County coordinator deserves a lot of credit for being proactive to ensure prompt appointment of counsel and that lawyers are visiting their clients. I'd definitely like to see other counties mimic her methods, and similar accountability protocols need to be developed after Rothgery to oversee appointed counsel for people who've bonded out.

Friday, October 24, 2008

Fraud by DPS tech in DWI cases

Reports the Dallas News:
At least 2,600 Houston-area DWI arrests are now in question, after a Department of Public Safety contractor failed to inspect breath analysis equipment – and faked records to show that she had
MORE: Here's a longer story from the Houston Chronicle, which informs us that:
The Texas Department of Public Safety announced Friday that it suspended the certification for a woman who contracted to keep the breath test machines accurate for the Clute, Friendswood, Galveston, League City, Pearland, Seabrook, South Houston and Webster police departments. ...

DPS spokeswoman Tela Mange said the problem was discovered in a routine audit last week; the inspector was suspended on Thursday; and DPS met with the prosecutors in Harris, Galveston and Brazoria counties Friday to discuss the next steps.

Informants focus of media briefing, CLE

For attorneys in Austin, a reader notified me of a continuing legal education (CLE) event on Monday sponsored by ACLU focused on the use of confidential informants in the drug war:
Continuing Legal Education Seminar “Confidential Informants: Problems, Issues and Strategies” presented by University of Texas law professor Gerry Morris and [Jay] Rorty [Deputy Director of the ACLU National Drug Law Reform Project]. 1 to 4 pm; Thompson Conference Center, 2405 Robert Dedman Dr.; Room 2.110; $30; RSVP (512) 478-7300 x 126 or e-mail
The group will also sponsor a press event Monday morning where a public policy report will be released titled “Law Enforcement Use of Confidential Informants in Texas.”

Many Texas counties not complying with SCOTUS' Rothgery ruling

Many Texas counties have yet to update their indigent defense plans to accommodate the US Supreme Court's Rothgery decision this spring, according to presentations at a statewide conference of the Texas Task Force on Indigent Defense this week. If local officials aren't careful, such omissions could lead to confessions and other evidence being thrown out of court, the group was told.

The main problem occurs when an indigent defendant requests an attorney but then is somehow able to make bond - a particularly common occurrence on misdemeanor cases and penny ante felonies where bond amounts are low. Defendants in custody, for the most part, have counsel appointed promptly, but not always those who bail out.

Before Rothgery, Texas law did not require appointment of counsel until a defendant was acutally indicted, which could be weeks or months after the initial arrest. But SCOTUS said that the "magistration" hearing, where bail is set, marks the initiation of adversarial proceedings that requires appointment of counsel, speakers told the group.

In Texas, if a defendant is in custody, the law requires counsel to be appointed within 1-3 working days depending on the size of the county, "if an indigent defendant is entitled to and requests appointed counsel and if adversarial proceedings have been initiated." In Rothgery, SCOTUS said adversarial proceedings begin upon magistration and a lawyer must be appointed within a reasonable time thereafter. However, the confusion comes under Texas Code of Criminal Procedure 1.051(j), which adds that:
if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant's first court appearance or when adversarial proceedings are initiated, whichever comes first.
Rothgery contradicted and essentially overrides that language, but SCOTUS did not proscribe a policy to replace it. The court only declared that adversarial proceedings initiate at magistration, but declined to specify how long counties have thereafter to appoint counsel.

The "whichever comes first" language could arguably mean that - since we now know precisely WHEN adversarial proceedings commence - counsel must be appointed within 1-3 days of magistration. But Texas Association of Counties General Counsel Jim Allison disagreed with that analysis, saying counties must only appoint lawyers within a reasonable time, though the longer they wait, he said, the greater the risk a delay will harm their case.

At a minimum, said Allison, counties can no longer wait until indigent defendants are indicted to appoint a lawyer - doing nothing is not an option. The safest practice, Allison declared, would be for counties to treat defendants the same regardless of whether or not they're out on bond - that's the only way to know for sure you'll be in compliance with the SCOTUS ruling, he said.

Counties that fail to appoint counsel after magistration risk having interrogations, confessions, line-ups, and other investigative efforts thrown out based on the court case Michigan v. Jackson, said Texas Fair Defense Project chief Andrea Marsh. That case held that "post-arraignment confessions were improperly obtained - and the Sixth Amendment violated - because the defendants had requested counsel during their arraignments but were not afforded an opportunity to consult with counsel before police initiated further interrogations."

District Judge Dib Waldrip from Comal County told the group counties should try to screen cases between arrest and the magistration hearing, dividing cases into "the good, the bad and the ugly," to get rid of bad cases before setting bail and identify ones where more investigation is needed before a defendant can be prosecuted. Not only would that practice help counties better comply with Rothgery, they're wasting taxpayer money on pretrial detention not to do so, said the judge and former DA.

See prior, relate Grits posts:

Fronting for bail bondsmen? Tyler jail debates getting weird

An attorney representing Smith County in an open records lawsuit, in which jail opponents are seeking access to proposed facility plans developed in secret meetings earlier this year, is making some bizarre allegations about the requestors:
[Robert] Davis said Mr. Good's motivation is that he represents bail bondsmen across the state, as well as sues Texas counties on their behalf. "Ken Good would love nothing more than to be able to give bail bond companies and criminals detailed security plans for our correctional institutions," Davis said.
For what nefarious reason does Davis think bail bondsmen want jail floor plans, I wonder? That's just weird. Citing long-established precedents, the Texas Attorney General already told the county they must release the plans, but the lawsuit ensures that won't happen until after voters have already made their decision.

This isn't the first strange and desperate argument being trotted out by jail proponents in Tyler. The local establishment types are pushing the jail as hard as they can, but diversion plans spearheaded by Judge Cynthia Kent have already eliminated the need for leasing space from other counties. As of October 1, Smith County had 628 county prisoners in the jail and leased 107 beds from other counties, but their jail capacity is 755 inmates. If they'd build on that success, a new jail wouldn't be necessary.

TYC stops paying for empty private prison

The Texas Youth Commission continues to take a step and a half back for every one step forward. TYC's new Executive Commissoner Cheri Townsend canceled their contract with a private prison company out of Florida to operate a facility in Eagle Lake west of Houston in Colorado County, the Dallas News reported, after the agency had already paid the company more than $1.26 million for managing an empty facility:

After spending $1.26 million over three months on an empty juvenile prison in Eagle Lake, the Texas Youth Commission said today it is cancelling the controversial contract.

It’s unclear whether the agency will reclaim the money.

Sen. John Whitmire, D-Houston, said he had assurances from the TYC that all the money would be recovered from the prison operator, Youth Services International.

“I was told [by TYC Executive Commissioner Cherie Townsend] that they’re going to reimburse the funds,” Mr. Whitmire said. “They know they weren’t delivering a service. If that company would like to be considered again, they’re returning all the money.”

But a TYC press release said only that the vendor has been asked to account for how much they’ve spent so far. The last two checks to the vendor have been canceled. ...

The point of the contract, agency officials said, was to do what state leaders had asked of them – to quickly get kids in facilities closer to their homes. But lawmakers said they never authorized paying generous start-up fees for prisons without any kids in them. And they questioned the value of opening a 119-bed facility when the TYC’s population was already declining.

When I talked to Sen. Whitmire last month about TYC, he was supportive of the new Eagle Lake facility because it would be closer to Houston and most units are out in the sticks, but that was before it became known that the state was paying to operate an empty prison. Upon learning that, reported the Austin Statesman's Mike Ward, Whitmire demanded the unit be closed: "This is what I asked for — cancel that contract," he said. "We need to get our money back. It's a good day for taxpayers and the Youth Commission that they corrected this big mistake."

Leasing the Eagle Lake facility was TYC's first significant step toward its regionalization plan, and canceling it leaves the agency in quite a muddle. This move makes clear that state leaders weren't fully on board with the direction conservator Richard Nedelkoff took the agency, but no clear direction has been given for how they do want TYC to operate now that a new Executive Commissioner's in charge.

I'm not sure how I feel about this development because opening the Eagle Facility only made sense if it was part of a more comprehensive regionalization plan - just adding it to TYC's present capacity wouldn't help anything, but it might if it were part of more sweeping changes that closed or radically downsized some of the larger, rural units and shifted to smaller facilities. However there's no consensus on what sweeping changes would look like (though Sen. Whitmire has some ideas). In the meantime, though, backtracking on Eagle Lake reinforces the impression of a directionless and floundering agency.

Thursday, October 23, 2008

Open Thread

I'm out today to attend this conference by the Task Force on Indigent Defense. Consider this an open thread to discuss whatever criminal justice topics are on your mind.

More on Halloween sex offender hype

The San Antonio Express News today quoted this Grits piece about law enforcement grandstanding over sex offenders at Halloween ("Roundup targets sex offenders," Oct. 23), in which I'd pointed out that extra monitoring of sex offenders who are unlikely to cause problems "mis-targets resources on a night with one of the year's highest youth crime rates." Apparently Bexar DA Susan Reed had wanted the county to round up every sex offender on Halloween night like they do in Waco, but couldn't garner support for the plan.

Such programs are all about playing to the media, not public safety. Kids trick or treating are more likely to be hit by lightning while going door to door than they are to be abducted by a registered sex offender.

I've mentioned before there's only one case in the history of the planet where a child was abducted by a stranger while trick or treating (in Wisconsin in 1973). In that instance, the killer had no prior record and wouldn't have been on any sex offender registry even if it had existed. But reporter Lomi Kriel was reluctant to take my word for it and researched the matter herself. Neither the various law enforcement agencies she talked to nor the National Center on Missing and Exploited Children could identify a single precedent besides the one 35 years ago.

By comparison, how many drunk drivers are out on Halloween? How much vandalism and other youth crime occurs that night while police attention is focused on tracking sex offenders?

They can say this is all about protecting children, but if authorities really wanted to protect kids they'd protect them from actual, demonstrable risks that occur in the real world.

Wednesday, October 22, 2008

Burnet jail blames overcrowding on Class C arrests

More and more Texas law enforcement agencies are embracing the tactic of reducing their number of arrests for petty offenses in order to stave off costly jail overcrowding. KXAN-TV out of Austin reports that:
Due to overcrowding and lack of manpower, Friday, the Burnet County Sheriff relayed the message that the Burnet County will no longer be accepting most class C misdemeanor suspects. Wednesday, Jail Captain Kathy Sievers said two county justices of the peace disagreed with the plan. Seivers said the county will accept them, but if their stay is longer than two days, the inmates will be transported to the Zavala County Jail in Crystal City. The facility is handling Burnet County's overflow.

Tuesday, 29 Burnet County inmates were in Crystal City. It costs Burnet County $45 a day per inmate to house their inmates in the South Texas jail. The cost does not include the gas and time it takes to make the 400 mile trip. All 98 beds at the Burnet County jail are full.
Class C misdemeanors are the most petty class of nonviolent offenses for which the sole punishment is a fine, not jail time, so it makes sense not to take most of these folks to jail in the first place.

Until recently, I was under the impression that Class Cs made up a small percentage of arrests, but a report this summer (pdf, p. 5) found that in Austin, 22% of all arrests by APD were for Class C misdemeanors, so roughly one in five people entering the Travis County jail are there for offenses that carry no jail time. If the same is true in Burnet County, the Sheriff's new policy may well save the county quite a bit of money with little risk to public safety.