Lonely voice in the wilderness demands end to overcriminalization

I've cracked wise before at the notion that Texas has labeled 2,324 separate acts "felonies" in state law, including eleven involving oysters. Tack on perhaps 3-4,000 more misdemeanors and countless municipal ordinances and county regulations and we really are living in a bizarre period characterized by a phenomenon I've labeled "overcriminalization" - using the law enforcement machinery of the state to manage social problems like mental illness, addiction, business regulation, and a wide range of disputes that in generations past would have been considered civil matters.

The Nacogdoches Sentinel tells the quixotic story of a man who's completely fed up with this onerous trend ("A battle for personal liberty," Nov. 30):

A local business owner with no formal legal training, Craig has studied the law on his own for 15 years, preparing arguments for his case, a rebellion against tyranny and injustice that began earlier this month in municipal court.

At 44, Craig has no driver's license, but still drives a blue 1991 Ford Crown Victoria, which has no license plates, no registration, no insurance and a broken brake light. For these reasons, Nacogdoches police officers issued Craig ordinary citations in December 2007 and again in January of this year.

But Craig's case is anything but ordinary. Instead of paying his tickets — about $910 in fines for the first one — Craig filed a lengthy affidavit in municipal court denying that any crime had been committed and challenging the standing of the court to prosecute him. There, and in subsequent filings, all researched and authored on his own, Craig cited legal sources like the Magna Carta, the state constitutions of Texas and Arizona and countless subsections of state law and administrative code, all of which he believes supports his case.

Craig objects to nearly every facet of the justice system, from the lack of court reporters in the municipal court, to summonses delivered by mail instead of by hand, to judges whose salaries are paid by the city — an unconscionable conflict of interest, Craig says. But Craig's case really hinges on his worry that government has strayed too far from its original purpose, assuming powers it was never supposed to exact over citizens of a free republic.

"I am trying to be left alone," Craig said. "I want the right to travel from place to place without harassment. I want the right to use my property for its intended purpose without harassment. I want my right to not have to pay fees to anyone for the right to use my property. It's really that simple. We can't be a nation of free people if we're not really free."

The rest of the story is worth a read. I doubt Mr. Craig's claims will prevail, and his isn't a sophisticated critique, but I think it's a common one that represents a growing, justified resentment against "Big Government" - one that sometimes has been manipulated to gain votes by politicians who, once in power, never actually reduced government's scope.

Though Craig's legal point is disputable, he has a valid political one: A whopping 79% of respondents to a Dallas News online poll last spring thought petty municipal ordinances were turning Dallas into a "nanny state." Or take a look at the bills filed in the House and Senate at the Texas Legislature and you'll notice a striking trend: Many bills propose creating new crimes, new penalties, or increasing old penalties (the euphemism for which is "enhancement"), but search high and low and you'll seldom see anyone repealing useless, petty laws or ratcheting down penalties when increasing them didn't have the desired effect.

For now Craig's quixotic, pro se rebellion is just an oddity and I mention it not to back the legal merits so much as to remark upon its political and cultural implications. I suspect his complaints resonate with a significant number of people, even if most folks would never go to such extremes to lodge a protest.

Drug war a flop, say Mexican, US officials

Hard to say what effect such things have on public policy, though it's certainly evidence of the erosion of consensus among elites around the drug war, but from the Los Angeles Times, we see reference to a new analysis from well-credentialed sources telling us:

The United States' war on drugs has failed and will continue to do so as long as it emphasizes law enforcement and neglects the problem of consumption, a Washington think tank says in a report co-chaired by a former president of Mexico.

The former president, Ernesto Zedillo, in an interview, called for a major rethinking of U.S. policy, which he said has been "asymmetrical" in demanding that countries such as Mexico stanch the flow of drugs northward, without successful efforts to stop the flow of guns south. In addition to disrupting drug-smuggling routes, eradicating crops and prosecuting dealers, the U.S. must confront the public health issue that large-scale consumption poses, he said. ...

The report, which is the work of Brookings' Partnership for the Americas Commission, offers especially pointed criticism of the way the drug war has been waged.

Contrary to government claims, the use of heroin and cocaine in the U.S. has not declined significantly, the report says, and the use of methamphetamine is spreading. Falling street prices suggest that the supply of narcotics has not declined noticeably, and U.S. prevention and treatment programs are woefully underfunded, the study says.

"Current U.S. counter- narcotics policies are failing by most objective standards," the report says. "The only long-run solution to the problem of illegal narcotics is to reduce the demand for drugs in the major consuming countries, including the United States."

Relatedly, the outgoing US ambassador to Mexico had harsh words for the American drug war, reported the Dallas News (Nov. 27):

"As U.S. ambassador to Mexico, I've tried to be honest with both Americans and Mexicans alike, and the truth is, Mexico would not be the center of cartel activity or be experiencing this level of violence, were the United States not the largest consumer of illicit drugs and the main supplier of weapons to the cartels," Mr. Garza said during a recent speech in Texas. "The U.S. and Mexico must fight these criminal organizations together, or we will fail together."

See related coverage from the New York Times.

Report: Travis County among worst in state at updating crime data

An AP report published in the Statesman gives a little more detail on the study described in this Grits post that found major inadequacies in the statewide database maintained by the Department of Public Safety for criminal background checks:

Fort Worth-based Imperative Information Group, a company that does background investigations, looked at 562 cases for offenses that ranged from theft by check to capital murder. All were known to have ended with a conviction or "deferred adjudication," similar to probation.

Its study, conducted in October, found that the Department of Public Safety database did not have records on 36 percent of the 562 cases, the Fort Worth Star-Telegram reported. In three instances, the cases were not reported to the database even though the defendants were sentenced to death.

The public database includes only cases that have ended in a conviction or deferred adjudication. State licensing agencies, employers, churches and others rely on the database to screen prospective employees, customers and volunteers. The missing records stem from human error and lax reporting from law enforcement agencies, courts and district attorneys, the newspaper reported.

AP's reportage adds the news that Travis County had among the worst problems with data reporting statewide. Imperative found:

The Imperative report showed that about half the Travis cases it studied did not include information on how the case turned out. Recent DPS reports show that Travis has been doing worse than that.

For about a decade, the DPS has been telling the Legislature that some counties are not reporting their case outcomes.

According to the most recent DPS report, Travis County reported 40,931 adult arrests in 2005. By 2008, Travis had reported the outcome of 16 percent of those cases — matching its consistent rank among the worst in the state.

Mange said that in some instances a case may take years to resolve, and in those cases, the result would not be available. But in the majority of instances where the resolution is not reported, she said, "we just aren't notified about it" being finished. Mange said most of the problems come from computer systems that aren't compatible with the state's system.

"We are working with Travis County to resolve some of the issues," Mange said. "They have shown an interest in ... fixing the problem."

Michelle Brinkman, chief deputy of the Travis County district clerk's office, said the issue has been brought to the attention of District Clerk Amalia Rodriguez-Mendoza . She said Travis has been sending its results, and the county's technology staff is "working with the DPS staff to determine why this data is not yet fully available within their system."

Williamson Sheriff honored for mental health unit

One of the keys to diverting mentally ill offenders from jail into treatment on the front end is training law enforcement to handle mental health calls without making the problem worse and directing people to services on the front end instead of waiting for the court to order it later. At many agencies such specialized mental health units are called Crisis Intervention Teams, and I was pleased to see the Williamson County Sheriff won a national award for work by their CIT unit, the Austin Statesman reported ("Williamson County Sheriff wins national honor," Nov. 27):

For coordinating services with crisis intervention specialists aimed at helping mentally ill people, instead of just putting them in jail, Williamson County Sheriff James Wilson was selected Sheriff of the Year by the 2008 National Crisis Intervention Team Conference Committee at a gathering in Atlanta earlier this month .

"Frankly, I feel a little guilty about getting this award because the work we do is a united effort on the part of the Williamson County Mental Health Task Force and a lot of other folks," Wilson said. The award is sponsored by the National Alliance on Mental Illness.

Wilson's mental health unit, a group of deputies who deal with emotionally disturbed people, includes 10 officers and two clerical workers and is headed by Lt. Mike Sorenson.

Williamson County saved $2.3 million cumulatively from 2006 to 2008 because of the unit's work in sending 1,088 mentally ill individuals to programs to help them solve their problems instead of to jail, according to county statistics ...

"In almost every instance, we can resolve situations with little or no force," Wilson said. "We have been doing this for three years and have had only a few minor instances of using force — I'd estimate fewer than five such instances. This year, we will answer about 3,000 mental health calls."

RELATED:

• Locals everywhere struggle with mentally ill offenders
• Outpatient centers better solution for competency restoration
• Legislature should prioritize mental health spending that relieves local jails

Happy Thanksgiving: Go Longhorns, OK State!

I'm taking a couple of days away from the blog to spend with the family and root for Oklahoma State full-time between now and the Bedlam game Saturday. ;)

Since this blog is all about justice, I'm naturally highly outraged at the idea that the Oklahoma Sooners might jump past my beloved Longhorns to play in the Big 12 Championship game after the Horns whipped them 45-35 on a neutral site. And it's not just the outcome between Texas and OU, but the way the Longhorns won: They took every blow the heavyweight Sooner offense could deliver - the same hailstorm that rained down on Texas Tech last week - but weathered the maelstrom and came back to win in the fourth quarter based on superior stamina and character. For Texas, after that game, to watch two teams it has beaten (Missouri and Oklahoma) play for the Big 12 Championship and potentially the national title, would be a true injustice.

In addition, to seal the deal, it'd be nice to see Texas beat A&M tonight like a rented mule.

Use this as an open thread to discuss any criminal justice topics, this weekend's football games or whatever is on your mind. And Happy Turkey Day.

Justice system ill equipped to handle mental illness

In the San Angelo Standard Times, a mother tells the tragic story of her son's mental illness and ultimate suicide, including numerous run ins with the law along the way. Lisa Hatch and her husband were both law enforcement officers, but that didn't stop the hand of fate from dealing their family this terrible blow. Her moving column urges parents to seek help early and never give up trying to help their child. She also expresses gratitude for the numerous law enforcement agencies who dealt with her son over the years: "We feel like he was treated well by those in charge of him ... Andrew was a bright, lovable soul, but he could frustrate a saint."

Hatch urges readers, "Tell your elected officials, that now is not the time to cut funds to our limited mental health system." The justice system does an especially poor job handling these cases, but in the present environment where there aren't adequate mental health services for seriously troubled youth, too often that's where the responsibility falls.

Exonerees face difficult re-entry task

With the passage of the federal Second Chance Act and numerous state and local re-entry initiatives for felons, the problem of long-time prisoners needing help to successfully get back on their feet and become productive citizens when they get out has received more focus than any time in recent memory.

However, a cruel and ironic twist on the problem shows up regarding recent DNA exonerees in Texas and around the country: Since the cases against them were dismissed, they're not even entitled to the minimal level of re-entry assistance given to someone on parole leaving prison who actually committed a crime.

To help with exonerees' re-entry dilemma, the Hogg Foundation for Mental Health gave a grant to UT-Arlington's school of social work to provide counseling services and study what re-entry needs exonerees have in common. Although DNA exonerations often represent the end of a years-long legal battle, reports the Fort Worth Star Telegram ("UTA professors get grant to study exonerated men's adjustment to freedom," Nov. 26):

two professors at the University of Texas at Arlington say that is hardly the end of the story for the exonerated men themselves.

"Basically, for these guys, the story really starts when they walk out of the courthouse," said John Stickels, a professor of criminal justice and jurisprudence at UT-Arlington. "They can’t get a driver’s license or Social Security card. People won’t rent to them because they think they must have done something wrong. They can’t get medical treatment. It’s just starting over completely.

"What we hope to do is help prepare them for when they walk out that door," said Stickels, who with social work professor Jaimie Page is studying ways to ease the former inmates’ transition to the free world.

That research has received a significant boost. The Hogg Foundation for Mental Health in Austin announced Tuesday that the study project has been awarded an $80,990 grant.

"This grant will help [Page and Stickels] address an area of mental health that has long been overlooked," said Dr. Octavio Martinez Jr., executive director of the foundation. "Exonerees deserve and should receive the resources needed to re-establish their lives."

In the last decade, more than 30 prisoners in Texas and 200 nationally have been exonerated, most of them by using DNA testing to establish their innocence, said Jeff Blackburn, chief counsel of the Innocence Project of Texas, which has collaborated with the UT-Arlington project.

Kudos to the Hogg Foundation and Jaimie Page at UTA for being pro-active to address a problem that didn't really exist on the scale it does now before the rise of DNA testing.

Speaking of which, the Dallas News yesterday interviewed recent exoneree Patrick Waller to see how he's doing heading into his first, post-incarceration Turkey Day and ask him what he's thankful for - there's definitely a lot, as described in this hopeful piece. I'm glad to read that he's faring better than some of the other exonerees who've gotten out, particularly those who lack strong family support.

Embezzling charges at TDCJ parole

TDCJ has had a bad stretch of luck lately regarding alleged employee corruption, most recently not in the prison system but among parole staff, the SA Express News reported last week (11-20):

A former employee of the Texas Department of Criminal Justice was arrested in San Antonio this week on charges of embezzling more than $100,000 while she worked for the parole division.

A Travis County grand jury on Nov. 13 indicted Frances Jones Lawrence on a charge of theft by a public servant greater than $100,000 but less than $200,000.

John Moriarty, inspector general for the department, said Lawrence, 33, was an administrative staffer with access to credit cards and purchasing records.

“There were suspicious receipts we were made aware of, so we opened an investigation and discovered that there was basically embezzlement going on,” Moriarty said. Lawrence, who remained jailed Thursday on $20,000 bond, was arrested at her latest place of employment.

Counties that agree to judicial emergency plans must be prepared to give up court space

Jeff Rambin at Tyler Appeals writes:

I checked out the Interim Report of the Task Force to Ensure Judicial Readiness in Times of Emergency. Basically, it calls for counties to sign a Memorandum of Understanding (MOU) with the Supreme Court of Texas. If you sign up, you promise to provide facilities for nearby counties when they're out of commission. In return, you'll be paid rent, and you'll have the comfort of knowing that other signatory counties will house your courts if the need arises. But don't sign up unless you mean it. When the time comes, the decision won't rest in the hands of your county officials. Instead, a judicial authority will come knocking with the MOU in hand saying: "We're here!" ...

The plan sounds reasonable enough. But here in Smith County, the debate is over whether we have enough room for our own courts. If the judges, clerks and bailiffs from some other county came knocking, I don't know where we'd put them. I sure would like to know how many counties have signed up for this plan.

McLennan County private jail deal creates perverse incentives

After high interest rates had earlier caused delays, the McLennan County Commissioners Court this week approved issuing bonds to construct a new jail that will be operated by a private contractor, the Waco Tribune Herald reports ("McLennan County Commissioners Court approves bond sale for new jail," Nov. 26), but there's a hitch:

“This will work out as long as the jail is full or has adequate number of inmates in the jail, which is the case now and in the short term,” [County Treasurer Bill] Helton said. “My concern is 10 years down the line, if the jail population were to decrease and there are not enough inmates in the jail to produce revenue to cover the costs, what happens to the county’s bond rating and credit worthiness if they were to default on the payments?”

That's an excellent question and depending on unpredictable things like the economy, the Legislature, and even national immigration policy, it could become an issue sooner than ten years from now. The interest rate they're hoping for is nearly as high as the one on my house:

The legal paperwork formalizing the bonds will be submitted to the Texas Attorney General’s Office for approval, which may take up to two weeks, said Herbert Bristow, the county’s attorney. However, the bonds will not be sold on the market until bond interest rates fall to 6.98 percent or lower, the point at which the financial costs for the new jail remain favorable.

“The documents have been formally approved for the bond transactions, so we have everything in place to react timely to any changes of the fickle market,” Bristow said.

Is it ethical to build a jail with such steep financial incentives for the county to fill it up? Shouldn't decisions about who is incarcerated remain free from such venal pressures? Particularly when McLennan County has other options besides jail building?

If, as Mr. Helton fears, there comes a day when the county doesn't need so much jail space, McLennan County will find itself in the same situation as the Texas Youth Commission recently - paying a contractor for empty jail beds. And they're not the only ones making such a gamble.

The county treasurer is right to worry: McLennan taxpayers just bought a pig in a poke.

DPS crime database too shoddy for thorough background checks

Crime data maintained by the Texas Department of Public Safety is so shoddy that it's unreliable for performing background checks and gives the public a "false sense of security," according to an article in the Fort Worth Star-Telegram ("Texas DPS criminal databases missing thousands of records," Nov. 25):

More than a third of criminal records are missing from the online Department of Public Safety database available to the public, a Fort Worth company found in a study.

Even government agencies, which have access to more detailed criminal records to screen teachers, doctors, volunteers and tradespeople, use a DPS system fraught with gaps, officials and experts said.

Problems exist because of human error and because of spotty reporting from law enforcement agencies, courts and district attorneys that provide information.

Even records of Death Row inmates are missing from the public database, according to the study by Imperative Information Group, a Fort Worth background investigation company. The company studied 562 felony and misdemeanor cases.

"We know that the data is not very reliable," said Mike Coffey, president of Imperative. "There’s a false sense of security that this criminal background check is going to be effective."

Equally disturbing for purposes of background checks, often counties will enter data when charges are initially filed, but nobody goes back to remove the allegations when charges are disproven or dismissed. So some people are missing from the database while others are falsely labeled felons and really shouldn't be in there.

See prior, related Grits posts:

• Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
• Failure to update state crime database affects employment options for the unconvicted
• Improper access to Texas criminal records common, unchecked
• Sex offender registry full of errors

Hot button SCOTUS cases subject of HLR analyses

In case you're short on holiday reading over the Thanksgiving weekend, via Doc Berman the just-published Harvard Law Review has several analyses of recent US Supreme Court cases from the last term, including notable topics we've discussed here on Grits:

• Eighth Amendment — Death Penalty — Lethal Injection Drug Protocol: Baze v. Rees
• Eighth Amendment — Death Penalty — Punishment for Child Rape: Kennedy v. Louisiana
• Sixth Amendment — Attachment of Right to Counsel: Rothgery v. Gillespie County
• Sixth Amendment — Competency Standard for Self-Representation at Trial: Indiana v. Edwards
• Jury Selection — Batson Challenges: Snyder v. Louisiana
• Status of International Law — Self-Execution of Treaties: Medellín v. Texas
• Money Laundering — Rule of Lenity: United States v. Santos

Several of the main articles deal with the recent Heller case interpreting the Second Amendment and the right to bear arms. I've only read the ones on Rothgery and Money Laundering so far, but both were quite thorough (and not too painful to read for law review fodder).

Just as an example of something that jumped out at me, we've discussed how the Rothgery ruling impacts Texas, but HLR informs us how the ruling will affect the handful of other states that didn't already provide counsel after a bail hearing. There were:

seven states that, prior to Rothgery, did not reliably recognize the attachment of the right to counsel before, at, or just after an initial appearance: Kansas, Oklahoma, Virginia, Alabama, South Carolina, Texas, and Colorado. In the first five states, which had exceptions, delays, or deviations from this rule, Rothgery will bring consistency. In Texas, Rothgery will protect a subset of defendants — those charged and released on bail — who currently do not have their right to counsel activated when the prosecutor is unaware of their charges. In Colorado, Rothgery will significantly alter the current practice: misdemeanor defendants’ right to counsel will no longer be conditioned on the defendant first speaking directly with the prosecutor to discuss a potential plea.

For anyone with a particular interest in any of these cutting edge topics, these analyses are worth a read.

Sheriffs privatizing border web cams

Gov. Perry's first stab at his much-ballyhooed border webcams didn't pan out so well, but he and the Texas Border Sheriff's Coalition are back for another try, this time with a private sector partner who's attempting to profit from the venture by selling advertising.

The Sheriffs Coalition, spending grant money given them by the Governor, "paid $625,000 for one year of service, parts and materials and agreed to pay other fees for future services," according to the El Paso Times. (Grits readers may recall that one of the 16 members of the Border Sheriffs Coalition was recently arrested for allegedly working in cahoots with the Mexican-based Gulf Cartel.)

But don't expect loads of new arrests to result from the webcams, if history is any guide. Again from the El Paso Times ("Border watch program called waste of money," Nov. 25):

Perry launched a test-run of the border watch site with about a dozen cameras streaming video in November 2006. It got millions of hits and generated more than 14,800 e-mails. But an El Paso Times analysis of reports obtained through the open records requests revealed that all that Web traffic resulted in 10 immigrant apprehensions, one drug bust and the interruption of one smuggling route. ...

John Honovich, founder of IP Video Market Info, said studies of surveillance programs have shown they usually deter crime only temporarily.

"Unless criminals observe and determine that the system is effective, the deterrence effect goes away," Honovich said.

Another example of border policy driven more by PR than public safety. If investigators had to react to 14,00 emails during the pilot program but it only generated 10 immigrant apprehensions, that's a ridiculously low amount of bang for the buck.

This is an utterly pointless exercise, but I'm sure it will be ably spun in the Governor's campaign materials come 2010.

RELATED: A reader points me to today's story by the El Paso Times' Brandi Grissom, who picks up on the fact that in at least two instances, millions from the Governor's border security grants to Sheriffs were spent by people later indicted as drug cartel operatives. She writes that:

Starr County Sheriff Reymundo Guerra and Hidalgo County sheriff's Deputy Emmanuel Sanchez last month became the latest in a long history of border law enforcement officers accused of aiding and abetting the criminals they are supposed to fight.

Those two departments were among the many that have received money from Perry to participate in state-led border security efforts that began in 2005. Records the El Paso Times obtained under the Texas Freedom of Information Act the two counties received more than $4.8 million in state and federal grants from Perry from 2005 to 2008.

Critics of the operations say there are too few accountability measures attached to the border crime funds and worry that corrupt officers could use taxpayer money to help drug traffickers.

"We may as well just send it directly to drug dealers," said state Rep. Jessica Farrar, D-Houston, long a critic of Perry's border operations. "We've been spending money against our own interests."

CCA Follies: 'They who have put out the people’s eyes, reproach them of their blindness'

While I've been focused elsewhere, the notorious Charles Hood case - in which the judge and prosecutor admitted 18 years after the fact they were carrying on an affair prior to and during the defendants' capital murder trial - has taken a new, odd twist, with the Court of Criminal Appeals seemingly searching for any possible excuse not to delve too deeply into the extramarital indiscretions of their former colleague, Verla Sue Hollland. This effective AP account from Nov. 19 gives the latest details:

Texas' highest criminal appeals court on Wednesday ordered a lower court to examine why a death row inmate's attorneys waited nearly 20 years before claiming a sexual affair between the trial judge and prosecutor tainted the case.

Charles Dean Hood's appeal will be considered by the Texas Court of Criminal Appeals after the trial court hearing on the admitted affair.

Allegations of the affair, an apparent open secret 20 years ago in Collin County legal circles, gained traction in June in the days before Hood was scheduled to die when a former assistant district attorney filed an affidavit saying it was "common knowledge" from at least 1987 until about 1993. The time frame includes Hood's trial.

Appeals stretched late into the night June 17 when Hood, a convicted killer, was to receive lethal injection and the Texas Department of Criminal Justice ran out of time to meet a midnight deadline to carry out the punishment. When the execution was reset for early September, the Austin-based appeals court stopped the punishment again, a day before the scheduled Sept. 10 execution, because of what it said were questions about jury instructions.

On Wednesday, the appeals court said the "discovery of new facts" in the suburban Dallas case could send the entire case back to the trial court for a review.

But it said before it made that determination, Hood's lawyers should be asked why they waited 18 years the trial to get proof of the affair between now retired Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell. They also should be asked why they didn't seek depositions or investigate the claims even though a 1999 rule on the Texas law books allowed them to do so, the court ruled.

"What they're saying is if there was foot dragging, we shouldn't even have to consider this," Lawrence Fox, the former chairman of the American Bar Association's ethics and professional responsibility committee, said Wednesday. "Goodness gracious! The irony here is there were affirmative obligations on the part of this district attorney and the judge to disclose this.

"Each of them had absolute, in my view, ethical obligations to disclose their romance and they knew they had absolute ethical obligations to disclose their romance — which is why they kept it hidden. ... So now the court is saying: One of our judges screwed up badly, never disclosed this, so let's blame the victim."

The appeals court gave the trial court 60 days to collect evidence and make a recommendation on whether a legal rule known as the doctrine of laches meant Hood's lawyers surrendered the right to bring up the issue by not bringing it up sooner.

"What were they supposed to do?" an incredulous Fox said. "Go into court and say we've heard a rumor?

"You just don't do that. If you're going to go after a judge, you better have more than that or you're going to have your head handed to you. ... You can't punish the victim for not uncovering what somebody was hiding."

In court-ordered depositions in September, Holland and O'Connell acknowledged the affair.

I understand the frustration people express, frequently in expletive-ridden blog comments, over last minute appeals by death row inmates. But this is an exceptional case involving a secret romance between the Judge and the DA that they intentionally concealed from the defendant and his counsel, not to mention the voters who elected both these officers of the court.

Indeed, Judge Verla Sue Holland was later appointed to the Texas Court of Criminal Appeals, where she served with 8 of the 9 sitting high court judges. So it really looks shabby and untoward for her former colleagues at the CCA to continue to hunt around for excuses why they needn't examine the details of their friend's misconduct. That ship has sailed! The scandal has been admitted.

The CCA's handling of this case has been arrogant and self serving from day one. Last spring they refused to listen to Hood's complaints about the affair because it was only rumor and ordered him to the death chamber, where his execution was prevented solely by happenstance, not by any action of the court. Now they have the chutzpah to chastise the defendant for not bringing up unproven rumors earlier! Such hubris recalls one of my favorite lines from John Milton's Paradise Lost, in which the poet wrote that "they who have put out the people’s eyes, reproach them of their blindness."

The judge and DA had "absolute ethical obligations" to disclose the affair, according to the head of the American Bar Association professional responsibility committee. Unless a majority on the CCA believes otherwise (which would only barely surprise me), any tardiness by the defendant in raising this issue pales in comparison to the failure by state actors to disclose their secret, extremist misconduct long before now.

Which reminds me: Why haven't these two been disbarred yet? What do you have to do to lose your law license in this state?

Stingy Bush pardons more often favor Texans

President Bush issued 14 pardons yesterday, including for three Texans, and commuted two more sentences on drug convictions. That makes him the stingiest among modern Presidents regarding clemency. At 171 total, he's pardoned less than half the number of people as Bill Clinton during his two terms, with a disproportionate number of those coming from Texas.

The Houston Chronicle profiled one of the Texans' pardoned: Daniel Pue, convicted of a felony for illegal dumping of sludge in a ditch in East Texas. The pardon of Fort Worth's Brenda Jean Dolenz-Helmer was for a relatively minor offense- covering up for her father when he was accused of a crime.

The third case may wind up having some Bush family conntections: William Hoyle McCright, Jr., was convicted of bank fraud when he served as executive vice president of the First National Bank of Midland from 1978-1982. (Looking for connections via a quick Google search I found that one of McCright's trial attorneys William Monroe Kerr was President of the Midland Rotarians when then-oil-executive George W. Bush came from Houston to speak to the group in 1969; his other attorney, Ted Kerr, also attended that event.) McCright's crime was failing to disclose his involvement with an oil business for which he approved millions in bank loans, but the octogenarian insisted to the Midland Reporter Telegram after the pardon was announced, "I didn't do anything." Not exactly an example of contrition, huh?

The only well known name among yesterday's clemency announcements, oddly, was hip hop artist John Forte, a Californian who was convicted in Texas on federal drug trafficking charges but has always maintained his innocence - his was one of the two commutations. A rapper? Were there no country and western singers in need of official forgiveness?

Bush could and probably will pardon more people before he leaves offices. See Pardon Power's Watch List of pending clemency petitions, and additional blog coverage of the latest Bush pardons and commutations at Pardon Power, TalkLeft, the Lone Star Times, Capitol Annex, and The Volokh Conspiracy.

Can TYC make juveniles register as sex offenders?

From the Dallas News Crime Blog:

The Tarrant County District Attorney's office is asking the state Attorney General whether the Texas Youth Commission can make juveniles register as sex offenders.

The DA's question to the AG: "Does TYC have the authority under § 87.85(g)(3) of the Texas Administrative Code to require an offender to register as a sex offender, notwithstanding that provision conflicts with the juvenile court's authority under article 62.352(b)(1) and (c) of the Texas Code of Criminal Procedure, and the juvenile court has opted to exercise its authority to defer a decision on registration?"

See a copy of the letter from DA Tim Curry's office to the attorney general: tarrantcountyAG.pdf

From the DA's letter, here's the exact issue at question:

Specifically, your opinion is sought on whether section 87.85(g)(3) of the Texas Administrative Code, which authorizes TYC to require the registration of juvenile offenders who are discharged from TYC without successfully completing treatment, is in conflict with article 62.352(c) of the Texas Code of Criminal Procedure, which grants the juvenile court continuing jurisdiction on this issue. (Ed. note: links added)

Interesting question. It seems like, from this non-attorney's perspective, that when the administrative code and an actual statute conflict, the greater weight is usually given to what the Legislature penned as opposed to agency-generated rules. But it's hard to predict how AG Greg Abbott will decide because there's no telling these days whether the opinion will be a political statement or a legal interpretation - we've seen his office issue both in recent times in the guise of AG opinions, and lately anything related to sex offenders inevitably takes on a highly politicized air.

Making the matter more difficult, the TAC language in question specifically declares, "If the duty to register has been deferred and the youth is discharged from TYC without successfully completing treatment for sex offense, the PSW shall register the youth." However the Sunset evaluation report on TYC (pdf) criticized the agency for failing to provide sex offender treatment to all youth for whom courts had ordered it. Page 16 of the Sunset report (p. 23 of the pdf) declares:

of the 284 youth TYC identifi ed as in need of sexual behavior treatment programming in fiscal year 2007, only 46 percent were enrolled in such a program. Furthermore, only 50 percent of the youth enrolled that year completed the program.

What's more, in FY 2008 the agency only used 61% of its specialized treatment budget, say Sunset staff (p. 16). In other words there was money available to pay for treating more kids, TYC just couldn't get its act together.

Given that, here's my question: If youth fail to complete required sex offender treatment because the agency is not fulfilling its own responsibilities, should youth be placed on the sex offender registration rolls over the objection of the judge in the case? That seems to be the crux of the dispute, and to the extent that's what's happening, youth are being punished because TYC's not doing its job.

I'm curious to learn more about exactly how and when TYC adds youth to the sex offender rolls and how frequently that happens over a local judge's objections.

New Homeland Security chief must reduce waiting lists for legal immigration

With an incoming President who's the son of an immigrant, it's hard not to wonder what the new administration will do on immigration reform, not to mention when Congress might take up the matter.

As we watch the transition team for President-elect Barack Obama forming, the most telling immigration-related appointment so far has been that of Arizona Governor Janet Napolitano, who will likely head the Department of Homeland Security - a thankless task that includes authority over US immigration enforcement. So let's take a quick look at Napolitano's policies and statements as Governor on immigration reform. Reports the LA Times:

As governor of Arizona, Janet Napolitano last year signed into law the nation's harshest penalty for employers who knowingly hire illegal immigrants, a measure that would take away their business licenses for a second violation.

She called it the "business death penalty" and the "most aggressive action in the country" to stem the flow of illegal workers. She also criticized Congress and the federal government for failing to act on immigration overhaul. "The states will take the lead, and Arizona will take the lead among the states," she said. ...

But Napolitano also has shown an instinct for finding her way through the immigration minefield in a state where political battle lines were well drawn. She took a centrist position, supporting strong steps to prevent new illegal immigrants from coming to Arizona, while opposing most measures that would punish illegal immigrants who were already living and working there.

Said the Arizona Star:

The governor is neither an immigration hawk, nor an open-border advocate, Kavanagh said, pointing out that she wanted National Guard troops at the border but also vetoed an expansion of the list of government benefits denied to immigrants. "Her sympathy for illegal aliens reduces her enthusiasm for border security," Kavanagh said.

The Arizona Republic reminds us that "She ... opposed the government's Real ID mandate for biometric ID cards because it shifted billions of dollars of costs onto states like Arizona." So a former opponent and critic of REAL ID is now responsible for implementing its provisions (or else convincing Congress to repeal it).

A few initial thoughts: First, former US Attorneys like Napolitano and likely Attorney General Eric Holder are getting a lot of primo slots so far. Obama's own US Attorney appointments merit watching if that's such a political gateway for this Administration.

Second, as a critic of the border wall and Real ID, I'd love to see Napolitano lead the charge to repeal both those bad initiatives. In Arizona where there's a land border, perhaps the calculus is different. But Texas already has a moat! If that can't be adequately policed, a wall won't provide any greater barrier.

Any money saved by eliminating the do-nothing border wall, though, should NOT be sunk into putting National Guard troops on the border, as Napolitano advocated as Governor. Instead, such savings should be invested in expanding DHS' immigration processing bureaucracy to eliminate backlogs for legal immigration, and ultimately to expand legal immigration through what I hope will be comprehensive immigration reform passed sometime in the next 2-3 years.

These backlogs are entirely a function of the federal government failing to adequately staff DHS and they have real-world human consequences that can be devastating for those involved. Did you happen to watch the story on 60 Minutes last night about DHS evicting widows from the country because their husbands died while they were on the approval waiting list? One woman's husband died serving the US military in Iraq, but immigration officials won't allow his widow and their child (an American citizen) to stay in the country together. That's both insufferable and unnecessary.

For my money, the best thing a new DHS chief could do on the immigration front would be to loosen the spigot to allow more legal immigration, processing cases much faster to avoid putting people in a bad personal situation because their paperwork has not been completed. In other words, DHS needs to do the (many) jobs it's already assigned much better before launching on quixotic quests like a border wall. Some such initiatives will require Congressional action, but DHS could do a lot of its own accord by exercising discretion regarding current rules (as in the case of the evicted widows) and beefing up staff to process cases.

Grits' main focus regarding immigration stems from the use of public safety resources and tactics to solve what's essentially an economic and social problem - particularly the rise of immigration detention as the fastest growing group of incarcerated people in America, outpacing even the drug war as a source of new prisoners. The only difference (and it's not a big one when you're in jail) is that, in most instances, immigrants are incarcerated for civil violations, not criminality in the same sense as the guy who burglarizes your house. In fact, by any measure, immigrants commit fewer crimes than their US citizen counterparts.

It's hard to know what will happen on immigration during an Obama Administration or when they might decide to wrestle with that particular tar baby. But I like that someone who was a staunch critic of DHS will now run the place because the agency needs a housecleaning. Napolitano gets a chance to put up or shut up, while the agency gets a chance - after the first transition of Presidential power in its short existence - to re-focus on its core priorities.

One minor silver lining of the slumping economy might be that it buys a little time for Congress and the new administration to act. So many immigrants worked in the construction trades and service industries that the economic collapse has already done more to reduce illegal immigration than any government policy. Perhaps that economic reality, combined with expanded Democratic majorities in Congress (and even aided, one imagines, by John McCain's return to the Senate), will create a window for Ms. Napolitano in which she and the new President can defuse some of the pointless culture war battles that normally surround this issue, focusing instead on a pragmatic, solutions oriented debate centered on economics and security.

Sunset: TYC, county probation, don't gather, share enough information

Ed. note: This is the latest installment in a series analyzing highlights from the Texas Youth Commission/Juvenile Probation Comission "Sunset" staff report released earlier this month.

Whether or not the Legislature agrees to merge the Texas Youth Commission and the Juvenile Probation Commission as proposed in the Sunset Advisory Commission staff report (pdf), Sunset staff raise a number of significant concerns that need to get resolved one way or another, regardless of what bureaucratic structure governs the activity.

In particular, Sunset staff says a lack of information sharing in both directions between county probation departments and TYC hinders both offenders' smooth re-entry and the application of appropriate treatment while they're incarcerated. From p. 10 of the report (p. 17 of the pdf):

Critical gaps occur when counties commit youth to TYC and when youth are released from TYC to communities. These gaps can lead to a variety of problems. Starting with commitment, since the great majority of children in TYC have been on probation in the past, the committing court typically has information regarding the youth that TYC could use, including social and educational history; family and community situations; and past interventions and their outcomes.

In 2007, Senate Bill 103 increased the requirements on committing courts to provide additional information to TYC, including psychological reports, social histories, progress reports, and assessment documents. According to TYC, some counties provide this information while others do not. Even when provided, the quality of information varies greatly.

Following commitment, TYC does not typically provide courts with information on youth returning home, limiting counties’ ability to deliver appropriate services. TYC notifies the local court about the release of a youth to parole; however, in most cases, the agency’s notifi cation does not include information about the youth’s progress in treatment at TYC, health issues developed while at TYC, or other important information for the youth’s transition back to the community. By statute, TYC makes the notification ten days before releasing a youth to parole.

Because probation departments and committing courts do not receive information about the services youth receive at TYC, they cannot easily hold TYC accountable for treatment of youth. Local judges send youth to TYC with the expectation that the agency will provide necessary treatment. Committing courts do not have easy access to treatment records and do not receive reports on youths’ progress, limiting local jurisdictions’ ability to evaluate the effectiveness of the component of the system that they rely on to deal with their most serious offenders.

I've long believed that, whether or not the state agencies are merged, state juvenile parole functions should be handed over to county probation departments. (There's already a model for this: In many smaller counties, probation departments already provide contract parole services for TYC.) After all, these local agencies already have long histories with most of TYC's youth before they're ever sent to an institution, so it makes a lot of sense to designate county juvenile probation departments as the agencies who are also responsible for supervising juveniles on parole as well. What's needed is to ensure that the folks supervising youth on the front lines, both POs and the courts, have access to information about what happened with the kid at TYC and vice versa. That's apparently not happening now.

Not only is information not routinely shared, in many cases critical information is never systematically gathered in the first place. Ideally, says the Sunset report, youth would be given both needs and risk assessments when they're first put on probation, again when they're sent to TYC, then again at the end of their incarceration stint before they're released on parole. This information gathering should be coordinated and shared among the various government agencies who deal with the youth. Instead, said the Sunset staff:

Most [county] probation departments and TYC do not routinely assess youths’ needs or risk of recidivism, and do not share assessment information. This may lead to inappropriate treatment and placement decisions, as well as ineffective use of financial and other resources. ...

Both TYC and TJPC are developing assessment tools, but the agencies have not consulted with each other and assessment tools are not currently operational. TJPC is developing an assessment instrument for use by probation departments. The agency hopes to begin testing the assessment in spring 2009. The Texas Youth Commission’s current assessment tools are not validated and may not assess risk in line with national best practices. Also, the agency is not confident that its needs assessment can accurately assess the need for specialized treatment programs. TYC is redesigning its intake procedures to use a computerized risk-assessment system, but the agency is implementing this software independently of TJPC and county probation departments. The automated risk and needs assessment tool is expected to be fully functional by March 2009 but will need to be validated on a Texas population.

That all certainly sounds like a mess, and it's troubling that TYC's inmate assessment and classification hasn't progressed any further than it has. Last I heard, the agency had to start nearly from scratch after the work by a politically connected contractor wasn't up to snuff, and I'm not surprised that they're not "confident" in the product they currently have. It might well be smarter, as Sunset's merger suggestion implies, to ditch the assessment system in which TYC is "not confident" and more thoroughly integrate their work with TJPC's assessment tools and information systems - after all, they're both supervising an overlapping population of kids. The devil, though, obviously, is in the details.

This is all important stuff to think about, and for the Lege or the agencies act on, whether or not the two entities are formally merged.

Related Grits coverage:

• Would juvie probation be de-prioritized if merged with TYC?
  
• Will TYC-TJPC merger improve juvie corrections
• Pondering the economics of TYC abolition

Has TDCJ learned the right lessons from death row cell phone scandal?

An article by Mike Ward in the Austin Statesman today ("Cell phones hard to find on death row," Nov. 23) makes me fear Texas prison administrators haven't learned the right lessons from the recent rash of contraband discoveries (particularly cell phones) on death row:

"A year ago, we were amazed to find an inmate with both a cell phone and a charger up there," John Moriarty, the state prison system's inspector general, said Thursday. "They have 24/7 to think of ways to hide cell phones so we can't find them. This is our biggest, most complex challenge right now: tracking these phones down." ...

In all, a total of 18 smuggled cell phones were found on death row in just 30 days — five since a massive lockdown and shakedown of all prisons was completed last week.

I'm surprised to see the inspector general say this wasn't a big problem a year ago when TDCJ discovered 484 cell phones during FY 2007 - fewer than this year (743 through Oct. 20), but still a sizable number.

TDCJ administrators quoted in Ward's article focused mostly on how easy it is for inmates to hide items, and indeed, inmates are notoriously clever at concealing contraband. But that observation ignores a much more important fact when we're talking about death row: Only prison staff can bring contraband there in the first place, no matter how ably prisoners hide it. Death rown inmates never have face to face contact visits and could only, possibly receive contraband from staff. "People are asking, 'How could they miss those all those phones when they did a search?' Moriarty said," but that ignores the bigger question staring the inspector general in the face: How did the phones get on death row in the first place?

Regular readers know TDCJ's system-wide lockdown began when death row inmate Richard Tabler called Sen. John Whitmire's office, setting off a firestorm of media criticism and searches at every TDCJ facility. Cell phones were discovered at 22 units (out of around 112), and 46 officers were caught bringing cell phones into various units when pat downs were implemented, the Inspector General testified recently to the Senate Criminal Justice Committee (which Whitmire chairs). But so far, only Tabler and two of his family members are facing charges despite so many staff directly implicated in smuggling in the contraband, Ward reports.

Two questions loom as the agency moves forward: Will we see prosecutions of staff who smuggle cell phones in addition to inmates and family members paying for their minutes? Relatedly, will TDCJ take steps to reduce staff corruption besides a proposed 20% pay hike for staff, and what will such efforts look like?

Graft alleged in Bexar bond referrals

John MacCormack at the San Antonio Express News has a superb article ("Bail bond king spreads his favors," Nov. 23) describing the recent rise of a local bail bondsman. The story opens thusly:

As a new operator in the rough-and-tumble Bexar County bail bond business, Albert Saenz quickly climbed to the top after opening his first modest office in 2003 on South Pan Am Expressway.

With a bond writing capability in Bexar County now of more than $32 million — almost twice that of its nearest competitor — his company, AA Best Bail Bonds, is the biggest in town. Saenz also operates nine regional offices spread from Del Rio to Karnes City.

Heavy advertising, aggressive price-cutting and a gambler's taste for risk all helped Saenz thrive in what one regulator called a “cutthroat, backstabbing” business.

He also has enjoyed less obvious advantages, according to many of his former employees.

In interviews with the San Antonio Express-News, a half-dozen of his ex-employees said Saenz gets critical breaks from a range of public officials in exchange for favors including free tickets, out-of-town trips and cash.

“The reason he got so big was because of his friends in the courthouse and jail,” said Alfred Flores, a manager who left at the end of 2006.

“While I was there, he used Spurs tickets, concert tickets, Dallas Cowboys tickets. He has season tickets to everything. Once he took three deputies to the Dallas Cowboys game when they were playing the Eagles,” he said.

“He was rewarding them. They send him bonds,” Flores said.

The lengthy article largely backs up those claims, quoting former employees who claimed to have given tickets or other goodies to courthouse employees, jail administrators, someone in the Bexar DA's office, and even a local (unnamed) judge who allegedly gave out pre-signed "fugitive from justice bonds" to Saenz in exchange for a straight-up cash bribe. It's easy to dismiss that kind of allegation, except the former employee had in their possession one of the blank forms with the judge's signature on it. Oops! The judge declined to be interviewed and the paper didn't publish the jurist's name, so there's definitely more to be told about this story, though the Express-News has gotten off to an excellent start. The whole piece is well worth a read; Mr. MacCormack appears to have done his homework.

This all-too familiar Bexar County saga reminds me of a short essay I saw recently from the Pretrial Justice Institute on "Why Bail Reform Matters," which reminds us of the reasons why "The American Bar Association, the National Association of Pretrial Services Agencies and the National District Attorneys Association have all called for the elimination of commercial bail bonding."

DPS forays into immigration enforcement sacrifice public safety

I'm a little late to the game in mentioning it (despite prodding from a couple of readers), but the Department of Public Safety retracted its request to the Texas Attorney General (discussed on Grits here) for permission to launch a program of roadblocks without legislative approval to check drivers' licenses and liability insurance. Kudos to Rep. Ruth McLendon and Sen. Juan "Chuy" Hinojosa for holding the agency's feet to the fire and pressuring them to withdraw the request.

Meanwhile, even though the Texas Legislature declined in 2007 to authorize changes to comply with the federal REAL ID program, DPS is plowing ahead with REAL-ID spawned plans to issue special drivers licenses for immigrants (with a vertical instead of horizontal format). This is especially silly because, even though the new policy is clearly pandering to nativist, anti-immigration sentiments, under current law it actually only affects legal immigrants, since no one else can get a Texas drivers license.

So what's the point of the change? Pure media grandstanding. If any reader can name a single safety benefit to this new policy, please let me know in the comments. As far as I can tell, it's literally just for for show, but otherwise an utterly pointless exercise - I can't identify a single public safety benefit one could even argue might be accrued.

I've maintained for years that DPS' and Homeland Security have this one ass-backwards, they've misidentified the most significant public safety interests and instead are pandering to xenophobia. Drivers licenses are the wrong tool for enforcing immigration policy - it's not their purpose and using them that way perverts their other, more important functions. The feds, not DPS, are responsible for enforcing immigration laws, plus the agency's focus on restricting drivers licenses actually makes people less safe - particularly drivers, which is most of us, because if you can't get a drivers license you can't get liability insurance.

Somewhere around 25% of Texas drivers don't have insurance, and while not all of the uninsured (by a long shot) are illegal immigrants, Texas' refusal to issue licenses to all drivers regardless of immigration status ensures there's a baseline of perhaps a million uninsured drivers on the road at any given time. These drivers are uninsured by state policy, not because of a decision to flaunt the law.

In addition, refusing illegal immigrants ID makes them essentially invisible to the system, which creates public safety problems when they become witnesses to or victims of crime, not to mention during emergencies. Ostracization policies (both refusing ID and making legal immigrants publicly identifiable by their driver's license) makes immigrants less likely generally to cooperate with or trust the authorities - who can blame them?

Clearly, between pushing drivers license checkpoints and pursuing REAL ID changes without legislative authorization, somebody at DPS (apparently the chairman, Allan Polunsky, in particular) thinks the agency should take over federal immigration enforcement, perhaps becasue the Governor is unhappy with how the feds are handling things. But that's not DPS' job, and trying to push them in that direction will make the agency less effective at its core duties that more directly influence public safety.

Would juvie probation be de-prioritized if merged with TYC?

While I remain agnostic about its core suggestion of merging the Texas Youth Commission and the Juvenile Probation Commission, the Sunset Advisory Commission staff report (pdf) provides a unique overview of the juvenile justice system across agencies and jurisdictions and supplies what will inevitably be the framework for debate over what happens at the Lege next spring.

Counties provide the backbone of the juvenile justice system, even if most of the debate publicly always seems to surround TYC (and now TJPC). Here's an excellent summation from the Sunset report of the system's broad outlines:

Texas counties supervise by far the most youth and outspend state and federal governments in Texas’ state-local juvenile justice system. Although driven largely by county initiatives, the State plays two key roles in the overall system.

The State, through the Texas Juvenile Probation Commission (TJPC), disburses funds to county juvenile probation departments and monitors them for compliance with established standards. In fi scal year 2007, TJPC provided counties with state and federal funding totaling more than $143 million, an average of 31 percent of counties’ total probation expenditures. Counties contributed another $325 million to support local probation services, including the operation of 86 secure countyoperated or contracted facilities. Probation departments supervise most youth in the system, from misdemeanants to felons, with programs that range from basic supervision to 24-hour secure detention. Local courts sent about 51,623 youth to probation departments for supervision, including probation and deferred prosecution, in fi scal year 2007.

In its second role, the State operates the Texas Youth Commission (TYC). This agency is reserved for felons, which it houses in 12 secure facilities, nine halfway houses, and 12 contract care residential programs. In fiscal year 2007, TYC expended $258 million on its facilities and programs. At their option, local juvenile judges commit their hardest-to-serve youth to TYC, but typically take this course only as a last option after exhausting local probation alternatives. Of youth referred to the juvenile justice system in fiscal year 2007, local courts sent about 2,276 youth to TYC. (Ed note: see charts at bottom left on p. 6 - p. 13 of the pdf)

A chart on page 7 (p. 14 of the pdf) titled "Juvenile Referrals and Dispositions: FY 2007, gives a terrific big-picture overview of how the system processes cases. At the macro level, 136,188 youths were arrested in Texas in 2007, but 42% were diverted by police or a magistrate and were never referred to juvenile probation.

Overall, law enforcement referred most youth to probation - 79,618 times in 2007 - while another 24,174 cases came from other sources, mostly schools, for a total of 103,792 referrals that year. Here are categories of dispositions from 2007:

• Consolidated or Transferred Cases: 7%
• Dismissed, Not Guilty, No Probable Cause: 19%
• Supervisory Caution: 22%
• Deferred Prosecution: 22%
• Probation: 27%
• Texas Youth Commission: 2%
• Certified to Adult Court: .2%

Of those who end up in TYC, 49 percent of new commitments are classified as "nonviolent 'general offenders,' whose crimes include nonviolent property, drug, or lesser offenses" (p. 9).

So we're talking about a relatively small number of cases actually referred to youth prisons, and even fewer who are violent offenders. Every kid who enters TYC has been processed by a county probation department regulated by TJPC, but the vast majority of youth cases (97.8% of referrals) aren't so serious.

Several people in the last week, both at the capitol recently and via private email, have told me they're worried that, on the adult side, merging the state's probation oversight functions with the prison system turned adult probation into essentially an unwanted stepchild at the state level, overrun in a culture dominated penal administrators who didn't know or care much about community supervision.

With juvie corrections so heavily weighted toward the probation side, as seen in these data (not to mention more focused on pre-adjudication outcomes), it's an understandable concern - certainly a risk - that a merger could leave juvie probation similarly de-priotized. After all, how much attention has the Lege paid in the last two years to TJPC compared to TYC?

Coming up: Sunset's analysis of TYC treatment failures.

RELATED:

• Will TYC-TJPC merger improve juvie corrections
• Pondering the economics of TYC abolition

R.I.P. Jim Mattox, 1943-2008

James Albon "Jim" Mattox held many jobs in politics over the years dating all the way back to his election to the Texas House in 1972 as one of the "Dirty Thirty." But most folks remember him as Texas' last, honest-to-God liberal Attorney General, a post in which he served from 1982-1990. Mattox passed away yesterday at age 65. Ron DeLord of the Combined Law Enforcement Associations of Texas rightly told the Statesman that Mattox and Ann Richards, who died in 2006, are "probably the last of that last generation of Yellow Dog Democrats and people that were just bigger than life."

See Mattox's career recalled at Capitol Annex, the Dallas News, and the Houston Chronicle.

TYC sex abuse case stalled for lack of defense counsel

According to AP:

The state's sexual abuse case against a former youth prison administrator has stalled since his attorney was arrested and stopped appearing at hearings, court records show.

Scott M. Dolin, an Austin attorney who had been hired to defend Ray Brookins in the ongoing probe of sexual abuses at a Texas Youth Commission jail, stopped appearing in court after being arrested, according to records filed by the Texas Attorney General's Office.

Prosecutors, according to the court records, learned of the arrest in February. Courts records do not indicate what charges Dolin was arrested on or where.

Dolin was removed from the case in April and Brookins, the former assistant superintendent at TYC's West Texas State School in Pyote, has repeatedly pledged to hire another attorney. But according to court records, that has not happened. ...

Brookins was originally set to stand trial in April, but the case was derailed after [his attorney Scott] Dolin failed to show up for pretrial hearings. Since then, according to court records in Ward County, the case has stood still.

The judge has ordered a hearing Dec. 18 to get Brookins lawyered up and move the case along, just in time to get the case back in the media's sights as the Legislature heads back to town.

Corrupt guards still smuggling phones onto death row

Two more cell phones were found on Texas death row Tuesday. Can their be any doubt the Polunsky Unit has a serious, continuing problem with corrupt guards on its staff?

UPDATE: And another one.

A look at Obama's AG pick: Eric Holder

I've been searching around this morning trying to learn more about President-elect Barack Obama's reported choice for US Attorney General, Eric Holder, a former deputy AG from the Clinton Administration who briefly became acting head of DOJ at the end of Clinton's term. On the assumption Grits readers may not know much about him either, I thought I'd share some of the more interesting links I found:

The New Republic said "Holder has impeccable credentials as a tough-on-crime prosecutor and superior court judge appointed by Ronald Reagan." The Christian Science Monitor called him a "seasoned pick."

Doc Berman identifies three important things to know about Mr. Holder.

Agence France Press called him an "anti-graft crusader."

Jacob Sullum at Reason says Holder's appointment is a discouraging sign for "anyone who hoped the new administration would de-escalate the war on drugs." In the '90s he favored increasing the federal penalty for selling marijuana to a felony, though Scott Morgan at Stop the Drug War thinks it's too early to say if Holder still clings to such positions.

Howard Kurtz at the Washington Post has a lengthy feature in which he reminds us of Holder's pro-active maneuverings regarding the Marc Rich pardon scandal, and Glenn Greenwald at Salon looks at other possible obstacles to his nomination.

The Wall Street Journal says Holder's nomination is going down hard with the right and National Review opines the Holder nomination is "confirming fears" an Obama Administration would return to a "September 10 mentality."

Meanwhile, liberals at The Nation complain that he was too cozy with PATRIOT Act authors and supported its reauthorization. Mother Jones offers a piece from a reporter who covered Holder as the District of Columbia's US Attorney and sums up his legacy as "not much."

NPR interviewed a family friend who said he's a technology junkie but also an "insightful" attorney with a "calm demeanor."

Holder personally opposes the death penalty but has pursued it as a prosecutor and told Congress they should "feel very assured that ... those statutes that have death penalty provisions will be fully enforced by me."

UPDATE: Juvenile Justice Today analyzes Holder's positions on juvie justice topics and supplies a link to the transcript (pdf) from his 1997 Senate confirmation hearing.

NUTHER UPDATE: Doc Berman suggests topics for questioning at Holder's Senate confirmation hearing.

High interest rates delay McLennan jail construction

In Waco, McLennan County Commissioners are temporarily postponing jail construction because of high interest rates resulting from Wall Street's credit crunch, the Waco Tribune Herald reports ("Rough financial markets delaying construction of McLennan County jail," Nov. 19):

McLennan County commissioners Tuesday postponed for the third straight week issuing project revenue bonds to finance the new jail because of high bond interest rates. Community Education Centers, the New Jersey-based company that is to oversee the new jail’s construction and operation, would be responsible for paying the interest on bonds the county sells to third-party financial houses.

County Judge Jim Lewis said officials had hoped to break ground for the new jail this month. However, the county is waiting to see whether the financial markets stabilize, allowing for reasonable bond interest rates. In the meantime, Lewis said, the project cannot go forward. He did not know how long the county would hold out on issuing the bonds.

“We could sell these bonds today if we wanted to, but we’d be selling them for 10 percent interest or more,” Lewis said, citing the stock market’s large fluctuations in the last week. “If we tell (CEC) that we’re selling for that high of interest, they’d say there is no way they can make this work. So it would be a prudent business decision to wait and see how the market does.”

I'd predicted precisely this outcome soon after the credit markets crashed, declaring:

it's worth mentioning the most immediate criminal justice dilemma created by the crisis - rising cost of commercial paper (debt) used to finance government construction. Some jurisdictions are already canceling debt issues approved by voters. In Houston, "the City Council [decided to] draw $100 million out of cash reserves to fund construction projects, rather than use commercial paper on which interest rates had spiked." According to a Harris County source, "the commercial paper rate was 1.74 percent a week on Sept. 11 and jumped to 5.25 percent a week later. The county also uses commerical paper."

This news makes new jail construction projects ... a lot more expensive than voters were previously told

So a month ago Harris County was balking at 5.25% interest rates, and today, McLennan County would have to pay up to 10% interest to build a jail. Every jail project in the state faces the same dilemma, which tells me to expect a serious slowdown in the rate of new jail construction as long as the credit crunch continues. With luck, that dynamic may spur county officials to more diligently seek solutions via alternatives to incarceration and jail diversion instead of just building more lockups.

Human trafficking is fallout from failed immigration policies

Texas Attorney General Greg Abbott and State Senator Leticia Van de Putte (D-San Antonio) held a press conference this week (see the video) to unveil a new AG office report on the subject of "human trafficking" (link here - pdf).

In Texas' context, human trafficking is mostly an unintended consequence of pointlessly restrictive immigration policies that forbid workers from entering the United States legally to work. When wannabe immigrants can't obtain official approval or else pay the ever increasing fees charged by coyotes (immigrant smugglers), not infrequently they'll agree to what's basically a form of indentured servitude or debt peonage to pay off the fee that, once they get to the United States, can morph into what the AG's report referred to as "modern day slavery." According to the report:

Texas is considered a major hub for human trafficking into the U.S. According to recent estimates, one out of every five U.S. trafficking victims travels through Texas along Interstate 10. Nearly 20 percent of human trafficking victims found nationwide have been in Texas. The DOJ Report on Activities to Combat Human Trafficking, Fiscal Years 2001-2005 included El Paso and Houston in its list of “most intense trafficking jurisdictions in the country.”

Sen. Van de Putte said that international agencies now consider human trafficking the second largest global criminal enterprise behind drug smuggling, tied with illegal arms smuggling. Moreover, she said, of the three it's the fastest growing.

Most of the recommendations in the report involve more training for police and others in the justice system and more data gathering and analysis, but they also suggested a couple of expansions of new criminal statutes passed last session, in particular making "commercial sexual exploitation of a person less than 18 years of age as a per se violation of the human trafficking statute," and also to "Define and criminalize child sex tourism.'” (That last one's a headscratcher ... was anybody out there claiming "child sex tourism" is legal?)

In addition to the AG's report, the Texas House Criminal Jurisprudence Committee had an interim charge on human trafficking, but they held that hearing outside of Austin and no video or audio was ever made available online. We'll get a sense of their analysis, and whether it differs from General Abbott, when they release their interim report sometime before the legislative session begins.

See MSM coverage here, here, here, and here, and a related blog post from the national ACLU. Sen. Van de Putte's bill on the subject is SB 89, for those interested the details of her proposals.

Study: 88% of Texas police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices

This morning at a 10:30 press conference up at the Texas state capitol, the Justice Project will unveil its new public policy report analyzing eyewitness ID procedures from Texas police departments. (UPDATE: Here's the link [pdf] to the full report including a matrix analyzing policies from 750 departments.) See preliminary coverage at the Dallas News Crime Blog, and here's the text of their press release:

New Study Documents Lack of Lineup Polices in Texas Law Enforcement Agencies

The Justice Project released today a new report documenting that only 12% of Texas law enforcement agencies have any written policies or guidelines for the conduct of photo or live lineup procedures. In addition, the few existing written procedures are often vague and incomplete. Overall, most jurisdictions in Texas fail to implement widely endorsed best practices that have been proven to increase the reliability of eyewitness evidence.

Eighty-two percent of Texas’s 38 wrongful convictions exposed by DNA testing were based largely or exclusively on incorrect eyewitness identifications. Texas currently has no statutory requirements for the conduct of eyewitness identification procedures.

To evaluate Texas law enforcement agencies’ adoption of eyewitness identification best practices, the Justice Project (TJP) requested a copy of all written policies regarding photographic and live lineups from over 1000 law enforcement agencies across the state under the Public Information Act. Scientific research has shown that eyewitness evidence, like trace physical evidence, can be tainted or ruined if not collected carefully according to scientifically informed protocols. Organizations such as The United States Department of Justice, the International Association of Chiefs of Police, and the American Bar Association have recommended best practices for the conduct of eyewitness lineup procedures. TJP evaluated existing policies in four key areas:

• The quality of cautionary instructions provided to the eyewitness;
• Guidelines to ensure fairness in the composition of lineups;
• Blind administration of the lineup by an officer unaware of the identity of the suspect, or equivalent procedure for ensuring neutral lineup administration; and
• Comprehensive documentation of the identification procedure, including witness confidence.

TJP found that only 7% or less of all departments have written policies in each of these areas in line with widely endorsed best practices designed to minimize eyewitness error. The full research report is available at www.TheJusticeProject.org.

“Photo and live lineups are critical moments in police investigations,” said Edwin Colfax, director of state projects at The Justice Project. “Given the fragile nature of eyewitness evidence and its documented role in wrongful convictions, it is essential that Texas require police to adopt written policies that include key reforms for ensuring the most reliable evidence possible.”

The Justice Project is a non-profit, non-partisan organization that works to improve the fairness and accuracy of the criminal justice system. Last year TJP published “Eyewitness Identification, A Policy Review,” available at www.TheJusticeProject.org. TJP is based in Washington, D.C. and opened an office in Austin, Texas in 2006.

RELATED: Unfair Park and the national Innocence Project Blog react, and KVUE has initial press coverage.

Dick Cheney, Alberto Gonzales indicted in South Texas

TChris at Talk Left beat me to this one so I'll let him explain the details and why we shouldn't "expect Cheney or Gonzeles to do the perp walk any time soon."

Keeping drunks dry through technocorrections?

One of the criminal justice trends I've failed to track as closely on Grits as the subject probably merits is the rise of so-called technocorrections, using technology instead of jails and prisons to monitor offenders in the community. The two most successful technocorrections monitoring solutions so far have arguably been GPS tracking (usually with an ankle monitor) and ignitition interlock devices that require DWI recidivists to blow into a breathalyzer before their car will start.

The latest technocorrections innovation combines the use of an ankle monitor with alcohol detection technology to directly monitor alcohol consumption by a probationer. According to a press release from the vendor (Denver-based Alcohol Monitoring Systems Inc.):

The state of Texas is now the largest user of a high-tech, alternative sentencing program that aims to shift the focus from "warehousing" offenders and sanctioning cars to battling what judges call the root cause of the DUI epidemic: the alcohol addiction.

Known as Continuous Alcohol Monitoring (CAM) Programs, the foundation is a high-tech anklet, worn 24/7, that actually tests an offender's sweat every 30 minutes, around the clock, in order to measure for any alcohol consumption. The system, known as SCRAM (Secure Continuous Remote Alcohol Monitor), is currently monitoring 1,300 DUI offenders each day in the state of Texas. More than 6,000 offenders have been monitored since Dallas and Tarrant County courts first began to use the system in late 2003. Today, 71 Texas counties have access to the technology, predominantly to monitor drunk drivers. Michigan, with the second largest daily number of SCRAM clients, currently monitors just under 900 offenders statewide each day.

The purpose of the system, according to corrections officials, is to target the high-risk, repeat DUI offenders who are struggling with addiction. "These individuals aren't driving drunk over and over because they want to break the law, they're driving drunk because they have a drinking problem, and when they drink, bad things happen," says Mike Iiams, chairman and CEO of Denver-based Alcohol Monitoring Systems, which manufactures and markets SCRAM to courts in 46 states, including Texas. "Studies show that people drive intoxicated an average of 300 times before they actually get caught," says Iiams. "This isn't just a criminal issue, and it's not an automobile issue. This is an addiction issue."

According to retired Texas District Court Judge Vickers Cunningham, who first began to use SCRAM on high-risk offenders in his Dallas court in 2003, the system's 24/7 testing protocol not only helped him to better manage offenders, it began to have a significant impact on the lives of offenders and their families. "It's easy to lock people up and throw away the key. But all you have to do is look at the repeat offender statistics to know that just wasn't working," says Cunningham, who now works for Dallas-based Recovery Healthcare, which manages the SCRAM program for courts in 50 Texas counties. "What I quickly began to find with alcohol-addicted offenders is that, when you effectively remove alcohol from the equation 24/7, they begin to become productive members of the community. They pay taxes, they work and they support their families. It changes lives." ...

In 2007, citing exorbitant expenditures to build jails and prisons in Texas, with little corresponding improvement in recidivism rates or overcrowding, the Texas legislature approved a paradigm shift in the management of offenders, including the expansion of drug treatment and diversion programs that include alternative monitoring technologies such as SCRAM. The goal is to decrease spending and prison population growth rates, as well as recidivism, which accounts for nearly 40 percent of those convicted each year for drunk driving, according to the U.S. Department of Justice.

Will TYC-TJPC merger improve youth corrections?

One thing that was missing from the TYC-TJPC Sunset report (pdf) advocating a merger between the two agencies was any mention of shifting to a more progressive system with smaller facilities as pioneered in the Missouri model, which many experts including the Governor's Blue Ribbon Panel have urged Texas to follow.

Instead, under the Sunset plan TYC will close a handful of rural units it's having trouble staffing anyway, but otherwise basically keep its same youth prison format.

I think when a lot of us first heard the suggestion, "Abolish TYC," we assumed it would mean a more radical shift away from the agency's large institution model. But the Sunset proposals do not suggest taking the new Texas Juvenile Justice Department in that direction anytime soon.

Pondering the economics of TYC abolition

Last week's Sunset report (pdf) recommending a merger between the Texas Youth Commission and the Juvenile Probation Commission is a detailed 120+ page document, so rather than write one long analysis, I'm going to pull out some highlights into shorter posts which hopefully will be a bit more reader friendly.

The Sunset Commission's most important recommendation: Merging TYC and TJPC and transferring their functions to a new agency, the Texas Juvenile Justice Department, headed by an 11-member board. (See MSM accounts here, here, here, here, and here for initial commentary on the idea.)

However, after reading the financial analysis in more detail, I'm now convinced a merger cannot save the state money, as the Sunset report predicts. There are just too many questionable assumptions that will not bear out upon implementation.

The only absolute, for-sure savings is around $600,000 annually from eliminating five duplicative executive slots. But the rest of the projected annual savings - $27.6 million - is entirely speculative. It's based on the assumption the agency will close three facilities and lay off 587 workers, as well as "reducing TYC central office salaries by 10%."

However, later on we're told that 587 layoffs is a loose guesstimate and that savings could be "up to" that amount, implying they could also be, perhaps substantially less. After all, we're reminded later in the report, it was only in 2007 the Legislature added 516 new staff slots at TYC (p. 64) because the agency was understaffed and otherwise couldn't meet its statutorily required 12-1 staffing ratio.

Since that time, the number of youth in TYC declined to half the number they maxxed out at just a few years ago, so apparently the Sunset Commission believes that means the new staff aren't needed. But nowhere in the detailed footnotes to the section on the merger do we find any reference to the Legislative Budget Board projections that tell us to expect the state's youth prison population to rise again until the agency is 23% above capacity by 2012. If that happens, the idea of slashing 587 employees (two years after adding 516) will begin to look extremely short-sighted.

Also, the Sunset report assumes fewer youth will go to TYC and instead be handled by local probation departments. Without assessing those costs with any specificity, the report insists that "This initial amount could be drawn from TYC's previous budget and could be supplemented with lapsed TYC funds, if available," adding that as a last resort the Department could "request additional startup funding from the Legislature."

That's the part that keeps tripping me up. It seems obvious that private placement handled by dozens of counties will be a more expensive proposition than when those kids are all handled by a single state agency.

That's not a reason not to do the merger, I just think in practice it will cost taxpayers more money, not less, if counties reduce their reliance on TYC and the state must pay to develop local alternatives. The worst possible outcome would be to dump a bunch of the worst-behaved kids in the state on county probation departments who're ill-equipped to handle them and then fail to provide adequate resources. If this merger is going to happen (and who knows at this point if it will), downsizing TYC can't just result in a blatant, unfunded mandate for counties.

'Round the bend with Leo Berman on immigration

The Texas Legislature can be a lot more fun (or at least, a little less frustrating) if you step back every once in a while to enjoy the process purely for its entertainment value.

I spent some time this morning going through additional pre-filed bills in the House and Senate as we approach the 81st Texas Legislature, and discovered that the state rep from my hometown - Leo Berman, R-Tyler - filed an hysterically funny piece of legislation in HB 254, "relating to restricting illegal immigrants to certain geographic regions."

The thrust of HB 254 made me laugh out loud: It defines the terms "illegal immigrant" and "sanctuary city" and then declares that "All illegal immigrants residing in this state shall reside in a sanctuary city."

That should be simple to enforce, huh? If writing a law could dictate where immigrants live, would we even have this problem?

Avoiding all discussion of enforcement, HB 254 directs the Department of Public Safety to "adopt procedures to implement and administer this subsection." That should be easy, don't you think? Surely there'd be no fiscal note attached to so small a task. ;)

Even funnier is Berman's definition of "illegal immigrant," which "means an individual who is not a citizen or a national of the United States and who has entered the United States without inspection and authorization by an immigration officer."

That's a really weird definition, particularly because about half of illegal immigrants actually entered the country legally then overstayed their visas. Such people submitted to "inspection and authorization by an immigration officer" when they entered the country, but they're here illegally now. For such an ardent critic of illegal immigration, you'd think Rep. Berman would understand the problem a little better.

So which cities would supposedly now house all of Texas' illegal immigrants? According to the bill, "'Sanctuary city' means a municipality that adopts a resolution declaring that the municipality does not discriminate or deny municipal services on the basis of a person’s immigration status and that all persons are treated equally regardless of immigration status." After all, you wouldn't want cities to go around treating people who live there "equally" without first checking their immigration paperwork!

This legislation will go nowhere and I'm sure Rep. Berman didn't file it with any intention of passing the bill, but to make a statement. Let me know in the comments exactly what you think that statement is.

RELATED: Karen Brooks at the Dallas News rounds up immigration bills filed so far.

ICE ignoring crooks to target immigrant workers

The Houston Chronicle ran a three part series by Susan Carroll this week on immigrants in the local justice system, focusing on the fact that 3/4 of illegal immigrants processed through the Harris County Jail are not flagged for deportation by federal Immigration and Customs Enforcement (ICE) agents (see here, here, and here).

I must say, though, it's an odd little series - full of anecdotes but with little system-level analysis other than to admit there's not evidence of a widespread safety problem. In particular, the stories examined no control group so it's impossible to know how immigrants' cases compare with other offenders. Instead we're told that,"There is no conclusive research to show whether illegal immigrants are more likely than their U.S.-born counterparts to abscond on state charges while out on bail." If that's the case, is this really a story?

After all, we know illegal immigrants are much less likely to commit crimes than Americans; it wouldn't surprise me if they're also less likely to abscond or commit new offenses while on bail.

The writer framed the stories in a sensationalistic "hide the women and children" tone, inspiring a Grits reader to email me asking:

Were these people simply released into the community as "free to go", just walk out the door? Such a high number of known criminals left to fend for themselves in a community area is not very smart (imo).

But keep in mind that most people who're prosecuted don't go to prison and continue to "fend for themselves" out in the community, either on bail or on probation after they're convicted. Even for those who're sent to prison, about 99% get out. Plus, nobody thinks most of these folks are a danger - 43% of immigrants processed in the Harris jail were misdemeanor defendants with no prior criminal record, reported the Chronicle.

Deportation is no panacea. After all, even if you deport somebody, it's still pretty easy to get back across the river. It's hard not to forget that capital murderer Juan Quintero was deported after a felony conviction, then came back to the United States and ultimately killed a cop (he's currently serving a sentence of life without parole). Or consider this example from today's story:

Israel Lopez, an illegal immigrant from Mexico, finished a seven-year Texas prison sentence in July 2006 for aggravated sexual assault of a child and was turned over to ICE agents, prison records say. ICE officials confirm he was deported in August 2006. Less than a year later, in June 2007, Lopez was arrested again on suspicion of assaulting a Harris County sheriff's deputy

So while many people see deportation as a fitting punishment when an illegal immigrant commits a crime, in reality it does little to keep the bad guys from returning. Though the third story in the series criticized placing illegal immigrants on probation, in some instances that's a safer bet for the public than shipping somebody back to their home country. When that happens, they can come back any time they like with no probation or oversight.

A big shortcoming of the Chron series is that it failed to place the Harris Jail dilemma in the context of broader immigration policy issues. Bottom line, ICE is so overwhelmed trying to "get tuff" on immigration that all their detention facilities are full of people caught swimming the river or who were snatched up in raids on employers - mostly average workers, in other words.

With this strategy, ICE has soaked up virtually all the private prison capacity in the state (and a big chunk of the federal court docket) with people who, before the recent immigration kerfuffle, would never have been criminally charged. As a result of the Bush Administration's changes in federal charging policies, immigration cases have come to utterly dominate Texas' southern and western federal judicial district dockets.

The irony is that immigrants as a whole commit few crimes by comparison to Americans, so most of the workers taking up space in ICE detention centers aren't actually a threat (plus many would be going home because of the divebombing economy, anyway). However, because ICE detention centers are full, there's not enough room for immigrants identified at the jails who committed serious crimes. It's a classic case of political grandstanding winning out over public safety.

That's why ICE doesn't place more holds on undocumented immigrants in the Harris County Jail - there aren't enough prison beds to hold all the crooks on top of the immigrant workers in custody already.

While there's some interesting information in these stories, to me the series didn't identify some big danger we should fear as much as it supplies an example of grossly misplaced federal priorities. As columnist Lisa Falkenberg wrote, it shows that "immigration officials should spend more time at the Harris County Jail and less raiding Shipley Donuts, rag factories and meat-packing plants." That pretty much sums it up.

UPDATE: See this 11-22 Houston Chronicle editorial pondering ICE's immigration enforcement priorities.

Brady violation may lead to next Dallas exoneration

One of the worst examples I've seen of a so-called Brady violation - where prosecutors withhold exculpatory evidence in their possession from the defense - may be found in a story by Jennifer Emily in today's Dallas Morning News, which brings word of what may be Dallas' next exoneration of a convicted defendant in a sex crime, but this time not because of DNA testing. Reported the News ("Sex conviction from '90s in question because of withheld evidence," Nov. 17):

Antrone Lynelle Johnson twice was convicted of sexual assault as a high school student, earning him a life sentence.

Mr. Johnson, who is 31, contends that both cases from the mid-1990s were built on lies and prosecutorial misconduct. If a judge agrees, he could be set free as early as today.

Dallas County prosecutors illegally withheld evidence that might have cleared Mr. Johnson, court records show.

In one of the cases, a girl told the prosecutor that Mr. Johnson did not rape her. In the other, the girl gave conflicting statements about whether she had sex with him.

Mr. Johnson and his attorneys were not told until this year about either of the girls' comments – a violation of the law.

The Dallas County district attorney's office agrees that Mr. Johnson's first conviction – and life sentence – should be overturned. Mr. Johnson has already served a five-year sentence in the second case.

This wasn't a case where prosecutors accidentally failed to reveal information to which they didn't have access, it was an overtly defiant case of a prosecutor refusing to play by the rules:

A copy of a prosecutor's note in the court file from Feb. 5, 1995, reads: "Johnson did not make her give him oral sex. He took her in the bathroom and she told him she didn't want to do it, so he stayed in there and pretended and then let her out."

However, that information wasn't disclosed to the defense until earlier this year. You won't find a more blatant Brady violation than that, but believe it or not, there's virtually no recourse (besides releasing the falsely convicted defendant) when prosecutors intentionally withhold evidence of innocence, which clearly happened here:

No criminal charge exists in Texas for a prosecutor who commits a "Brady violation." The term refers to a 1963 U.S. Supreme Court case, Brady vs. Maryland, in which the court ruled that prosecutors violate a defendant's constitutional rights if they intentionally or accidentally withhold evidence favorable to the defense.

The prosecutor in Mr. Johnson's first case no longer works for the Dallas County district attorney's office. She did not return phone calls seeking comment. It is unclear from court records which assistant district attorney prosecuted the second case against Mr. Johnson.

Also unclear is the eventual fate of Mr. Johnson. Judge Francis cannot overturn his convictions; he can only make a recommendation to the Texas Court of Criminal Appeals. But the judge could order Mr. Johnson freed immediately, pending the appeals court decision.

Inexplicably, the reporter chose not to name the former prosecutor in question (who's now left the office). But for my money, if these allegations are true, that person should be straight-up disbarred. There's no way that will happen though - the Texas State Bar simply isn't in the habit of even admonishing prosecutors for Brady violations, much less ousting them from the legal profession when they've behaved unethically - even when they overtly withheld exculpatory evidence to send an innocent person to prison. For that reason Dallas DA Craig Watkins has called for the Legislature to enact criminal penalties for Brady violations (see here and here).

A couple of other notable aspects jump out about this case: First, while most of Dallas' DNA exonerations so far may be attributed to the tenure of long-time Dallas DA Henry Wade, this new possible exoneration implicates misconduct by lawyers under Wade's successor, John Vance, as the primary cause of a false conviction. Clearly the practices that lead to false convictions hadn't all completely ended after Henry Wade left office.

Also, this is an extremely unusual innocence case where a) no DNA was found and b) the defendant pled guilty. DNA exists in only a fraction of cases, but the practices that lead to false convictions - including prosecutorial misconduct, as in this instance - can occur in any kind of case, not just those with biological evidence.

RELATED: Attorney/blogger Robert Guest comments on the case, adding that:

Theoretically, every prosecutor is required to disclose exculpatory evidence, known as Brady material, to the defense.

In reality, defendant have no way to enforce this right. The problem is that defendants in Texas have very little right to discovery. Parties in a car wreck, or a divorce case in Texas, have a much greater right to discovery than criminal defendants.

For example, police reports do not have to be turned over to the defendant. Grand jury testimony can also be withheld. That is why Brady violations are nefarious. When a prosecutor purposefully denies Brady material to a defendant, the defendant may NEVER learn about this evidence. Ergo, innocent defendants may never be freed, or learn of the evidence that could free them.

NUTHER UPDATE: The Dallas News now reports (11-18) that the prosecutor in the case was Patricia Hogue, who said she doesn't remember the case but denies withholding evidence. She was one of the ADAs fired by Craig Watkins when he first took office.

Dallas DA needs to develop thicker skin

While most District Attorneys around the state are green with envy at the positive press Dallas District Attorney Craig Watkins has received - from his appearance on 60 Minutes, the Dallas News naming him a finalist for 2007 Texan of the Year, to his recent feature on the cover of Governing magazine - a few negative stories about him (mostly by a single local TV station) have got the DA's dander up.

"If it were someone else sitting in this seat, they wouldn’t have to deal with that. But because I’m the first African-American, there is a microscope on me," Watkins told the Fort Worth Star-Telegram in a long feature story today. ("For Dallas DA, a celebrated pursuit of justice also brings anguish and anger," Nov. 16), which focused on:

the other part of the Watkins enigma, his seeming naivete, his political skin that seems paper-thin.

More-seasoned politicians would certainly have anticipated the sharp elbows in response to policies that reversed the old ways. But the new DA says he’s been surprised by the hounding of local reporters, surprised that he and his office have been deluged by open-records requests. He says he feels as if he’s been stalked by television news crews looking to turn up some dirt. ...

"I was very naive when I got here," Watkins conceded. "The things that we’re doing, I thought that would be very difficult for people to criticize because it’s the right thing. But I’ve found that even though this is the right thing, there are certain elements out there that don’t want to see this happen, and they are finding ways to discredit me. It’s disheartening to deal with that."

I don't believe it's Watkins' skin color that's made him a target any more than his height, and it was inevitable that his honeymoon with the media couldn't last forever. He's simply made too many powerful people mad.

Craig Watkins will inevitably be the subject of intense scrutiny because he's taken a courageous stance that simultaneously makes every other prosecutor in the state look bad. They've ignored or denied the conviction of innocent people for years, so Watkins' example generates a lot of unjustified but understandable defensiveness and ire from the establishment law enforcement set (many of whom have extensive contacts in the mainstream media, for whom crime coverage is a staple).

If Watkins is upset with the almost universally positive media coverage he's received so far, he's going to be pulling his hair out by the time the 2010 election rolls around and the Dallas GOP comes after his seat in earnest. Until now, for the most part, he's been treated with kid gloves, receiving glowing coverage for the string of DNA exonerations under his watch and his innovative Conviction Integrity Unit. How will Watkins respond when people come after him with actual ill intent?

Watkins and his first assistant Terri Moore seem particularly irked at a series of open records requests, a complaint which typically garners little sympathy from either the press or the public. Watkins told the Startlegram that "I have to think about when I swipe my card when I come into the garage in the morning ... because they might do an open-records request to see what time I’m getting to work, what time I’m leaving," he said. "I have to account for every place that I go."

Yes, that is correct, because you work for the taxpayer now. Open records requests, from the media or any other person, are the chief means by which we hold our electeds accountable. I've seen exactly that technique - analyses of parking garage data - demonstrate that highly paid pols were spending relatively little time on the job. Why shouldn't the media look at it? Every elected politician must be prepared to account for how they're spending their time when the taxpayers are footing the bill.

Hopefully the Star-Telegram overstated the extent to which Watkins has allowed worries about the media to overwhelm him on a personal level, a reaction that won't serve the DA well in the tough times to come. As former Dallas Mayor Ron Kirk, who is also black, told that Star-Telegram, it simply never pays to pick fights with people who buy ink by the barrel. Plus, Watkins is the DA. He has actual power and can perform his duties however he sees fit, while the media can do nothing but talk about it.

When he's been in office a bit longer, one hopes Watkins will develop a thicker skin about criticism so he can build on his early successes without losing sleep at night over what some talking head on the TV had to say.

RELATED: See a flattering profile of Watkins published over the weekend in the Wall Street Journal titled, "The Exonerator." ALSO: Sam Merten at the Dallas Observer commented on Watkins' defensive demeanor with the press back in March.

Back Gate poll finds prison staff fear retaliation for reporting misconduct

Over at The Back Gate, a prison staff-run website, a reader poll asks this question: "As a TDCJ employee, have you witnessed incidents on your unit that you were afraid to report to your warden(s) due to fears of career suicide and or retaliation? (be honest)"

The result: 76% (338 out of 445 at the time of this writing).

Everyone wonders why it's so hard to rid prisons of contraband, but if this poll is an accurate reflection, part of the reason is that non-corrupt guards and other prison employees are afraid to speak up.

Honestly, I have no idea how that got there

TDCJ's statewide lockdown searching for cell phones has met with some success, but now that it's mostly over and new procedures are in place, they're still finding contraband, most recently again on death row, the Houston Chronicle reports, where "Prison staff conducting a shakedown of the row Friday found a cell phone secreted in the rectum of convicted murderer Henry Skinner at the Polunsky Unit in Livingston" using the X-ray machine in the infirmary.

Prison healthcare in disarray after Hurricane Ike

TDCJ officials yesterday updated the Legislature publicly for the first time (to my knowledge) on the status of health care services provided by the University of Texas Medical Branch at Galveston (UTMB) after the prison hospital located on the island was closed because of Hurricane Ike. Reported Mike Ward at the Austin Statesman ("After Ike damaged Galveston hospital, prisoners shipped elsewhere in Texas," Nov. 14)

Brad Livingston, the prison system's executive director, said administrators at the University of Texas Medical Branch at Galveston have promised to reopen some of the prison hospital's 365 beds later this month, but a full reopening is indefinite. Currently, a limited number of inmates are going to the facility for clinic visits, not overnight stays.

"It creates a real challenge," Livingston said. "It goes without saying that security risks go up."

Instead of sending convicts to Galveston for treatment, prison officials for weeks have been housing the bulk of them in public hospitals at the University of Texas at Tyler, Huntsville Memorial Hospital and a hospital in Conroe, among others. ...

In other parts of Texas, convicts are being transported to local hospitals for treatment or they are being treated at prison infirmaries — normally reserved for minor care.

In addition to extra costs of treatment at local hospitals, officials said convict-patients also require around-the-clock security. "There will be additional costs. How much, we don't know at this point," said Dr. Lanette Linthicum, the prison system's medical director.

Livingston and UTMB officials, who on Wednesday got orders to lay off 3,800 UTMB employees as a result of an estimated $710 million in hurricane-related damage to the Galveston complex of hospitals and labs, said they also do not know the final cost of the alternate care.

"(UTMB) has promised us they will eventually return Hospital Galveston to pre-Ike conditions," Livingston said. "We're not thinking about moving the (prison) hospital out of Galveston."

Livingston told the committee the state currently has about 150 inmates in free-world hospitals - the largest number, 60 beds, at UT-Tyler, with another 20 inmates at Huntsville Memorial.

I wish we'd heard whether UTMB's telemedicine program is up and running and how they're providing specialty care with UTMB's Galveston facility decimated and a third of their staff laid off, but one suspects these problems aren't going away and the issue will be revisited as the Lege session approaches.

Dozens of guards caught smuggling contraband during TDCJ lockdown

Yesterday's Senate Criminal Justice Committee hearing began with Chairman John Whitmire questioning Department of Criminal Justice executive director Brad Livingston regarding the recent lockdown targeting cell phones and other contraband.

Livingston said TDCJ has found 132 cell phones so far on 22 units, including another one on death row, with 46 of those found patting down guards on the front end. TDCJ has also found tobacco 87 times during the lockdown, marijuana 25 times. Seven or eight units, said Livingston, accounted for the bulk of the contraband found.

Sen. Whitmire said that contraband is contributing to Texas' prison capacity problem because inmates are assigned thousands of extra years as punishment for contraband that's mostly brought in by guards.

In a debate over why TDCJ hadn't previously patted down guards on their way into prison units, Livingston told Whitmire that, because of the staffing shortage, there had been a concern that it would contribute to an oppressive environment for staff and limit retention. You mean if you found officers smuggling in contraband you'd have to fire them and you couldn't afford to lose that many people, asked Whitmire incredulously? Livingston backtracked to insist they'd been worried about good staff leaving because they didn't want to be searched, but Whitmire's interpetation is probably closer to the truth. After all, just minutes before Livingston told the senator they'd found 46 employees smuggling cell phones AFTER the lockdown was announced! There's no telling how many more they've lost over tobacco and other items.

Livingston said TDCJ is preparing a package of improvements aimed at reducing contraband smuggling costing about $30 million, including metal detectors and cameras, mostly targeting the top 20 units where contraband has been found.

See prior, related Grits posts:

• No final word yet on TDCJ lockdown results
• Contraband Update
• FCC has no authority to approve cell phone jammers
• Senate committee examines reasons for contraband smuggling
• Even death row not immune to contraband smuggling
• Guards and contraband smuggling in prisons and jails
• Chasing illegal cell phone use in TDCJ

DA lauded for Conviction Integrity Unit

Via the Dallas News Crime Blog, we discover that Dallas District Attorney Craig Watkins is featured on the cover of the current Governing magazine, which honored him as one of its "Public Officials of the Year" for the work of his office's Conviction Integrity Unit. See their story and also their other honorees.

Juries need more, better information to prevent false convictions

Find below the text of written testimony I submitted this morning on behalf of the Innocence Project of Texas to the House Judiciary Committee in response to their interim charge on juries, also cross-posted on the Innocence Project of Texas' blog:

Testimony on behalf of the Innocence Project of Texas to the House Judiciary Committee regarding its Interim Charge related to Juries

By Scott Henson, Innocence Project of Texas Policy Director, 11-13-08

First, thank you to the House Judiciary Committee for examining possible systemic changes to enhance the jury experience and increase citizen participation on juries. While most of the discussion here today is likely to focus on payments to jurors for their time, jury recruitment and other such measures, we cannot forget that some of the worst juror experiences come not from waiting in long lines or losing time at work but participating, unknowingly, in the false conviction of an innocent person.

Juries' decisions are inevitably a function of what information they're given, but today they're often not given enough information, or the right information, to make a correct decision. Too often, they are asked to judge things (like who is lying, the accuracy of an eyewitness or informant, etc.) that they cannot know, and sometimes juries make mistakes – more often, it turns out, than we ever could have known prior to the advent of DNA testing.

In that light, there's probably no more important aspect to enhancing jurors' experience than making sure they have sufficient and reliable information on which to make a correct decision. There are several things the Legislature could do to ensure jurors hear more reliable evidence and reduce the number of false convictions.

Punish Brady Violations and Mandate Open Files

Some of the DNA exonerees in Texas were convicted even though the prosecution had potentially exculpatory evidence in its possession that wasn't turned over. Brady violations aren't punished harshly enough by either the courts or the state bar, and prosecutors are for the most part immune from civil liability for withholding exculpatory evidence. Dallas District Attorney Craig Watkins has proposed creating criminal penalties for knowing Brady violations by prosecutors.

Even if the committee prefers not to create such penalties, there must be a way to ensure defensee counsel has access to potentially exculpatory evidence or else a jury can never get the chance to hear it. A mandatory, statewide “open file” policy in criminal cases – Tarrant County has a good policy that could serve as a model for the state – would go a long way toward solving this dilemma.

Ensure Juries Hear Reliable Evidence

Juries routinely hear various types of evidence – including recanted confessions secured with unrecorded interrogations, uncoroborrated informant testimony, eyewitness ID's gathered using questionable methods, or forensic lab results with high error rates – that may lead them to incorrectly infer guilt when a defendant is actually innocent.

• Record interrogations: Give recordings to the jury

The problem of false confessions is not as uncommon as you may think: In Austin's infamous Yogurt Shop murders, more than 50 different individuals confessed to the crime, most of whom, obviously, had nothing to do with the case. People may falsely confess out of fear, confusion, mental illness, or because of guilt-presumptive police interrogation techniques. Recording interrogations will not end false confession, but it will give the jury a way to assess the validity of a confession if it is later recanted.

Today, recording technology is inexpensive and widely used by many departments. The Legislature could simply declare that a confession won't be admissible in a felony case unless the interrogation leading up to it was recorded, letting juries hear for themselves how the confession was obtained.

In the vast majority of cases, such recordings will actually assist the prosecution more than the defense. For proof, look no further than the popularity of police dash cams purchased through a state bond authorized in 2001 by SB 1074, Texas' racial profiling statute. Police unions fought the change, but in the end, for the vast majority of good officers, the dash cams protected them and backed up their side of the story much more often than they substantiated claims of police brutality. Cameras provide juries more evidence as to how the defendant and police were actually behaving.

• Improve Eyewitness ID Procedures

The most common reason innocent people go to prison is because a victim or witness identified them as the perpetrator, but the witness turned out to be wrong. Eyewitness testimony is the most powerful thing a prosecutor can bring into the courtroom besides a confession, so when it's wrong there's a devastatingly high chance a jury will believe it. In Dallas County 18 of 19 DNA exonerations involved faulty eyewitness identifications.

We now know thanks to more than two decades of academic research that eyewitnesses, particularly in cases where they previously didn't know the suspect, get the identification wrong much more often than anyone previously thought. In fact, witnesses can be wrong even (perhaps especially) when they are absolutely certain about their ID at the time of trial.

Researchers have identified best practices for police conducting photo lineups that will reduce the number of false identifications without lowering the rate of correct identifications. Most of this could be done at very little cost to departments.

Texas appellate courts say they can find no statutory or caselaw authority to require police to use non-biased identification methods, which means it is time for the Legislature to step in and mandate that a jury cannot hear testimony about a lineup or photo array unless it's conducted based on accepted best practices, including at a minimum: 1) a 'blind' administrator (someone not involved in the investigation) conducts the procedure; 2) photos don't provide clues as to which one officers expect the witness to pick (there are several good ways to ensure this); 3) the witness is informed that the suspect may not be there; 4) the witness' exact response and level of certainty are recorded at the time of the identification. It's important to record the level of certainty at the time the identification is made, because by the time a trial occurs many witnesses will have convinced themselves that the person they identified must be the one.

Most law enforcement agencies don't have specific policies regarding lineups or photo arrays, and most routinely use practices that we now know can encourage false identifications. Some may change their ways voluntarily, but the best way to reduce the chance jurors hear false identifications would be to require these changes for everyone.

• Better vet informant testimony before it reaches jurors

Regarding so-called “infomants,” for the most part we're talking about the testimony of criminals who're trading their testimony for the sole purpose of reducing their own culpability for their own crimes. After the Tulia drug scandal up in the Texas Panhandle, the Texas Legislature took a first step toward reining in this problem by requiring corroboration for informants used in undercover drug stings. That has worked out well, and the corroboration requirement should be extended to all informants who are compensated for their testimony either by reduced culpability for their own alleged crimes or, as sometimes happens, directly with money.

In addition, testimony by criminal informants should be subjected to a pretrial reliability hearing, informed by stronger pretrial disclosure of the informants' backgrounds and what concessions were made by the state to secure their testimony. This is because jurors have a hard time vetting informant testimony. Informants whose lives are on the line may be particularly adept at sticking to a false story under interrogation, or perhaps juries tend to believe them as they believe eye witnesses. The pretrial hearing allows a judge to vet informant evidence, simply because crimnal informants are inherently unreliable and their testimony deserves more scrutiny before a jury ever hears it.

Over on the other side of the capitol, Sen. Rodney Ellis has filed several pieces of legislation that begin to address these fundamental problems.

• SB 116: Recording interrogations
• SB 117: Improving eyewitness ID procedures
• SB 260: Improving reliabilityof informant testimony

Though, of course, it's still very early, none of these bills yet have House companions. But I'm hoping these ideas will find strong support in the House and in particular among members of this committee.

Juries are a critical part of the process, but they can't effectively do their jobs if they must make their decisions based on an incomplete record or potentially unreliable testimony. Thanks for your time and for the Committee's commitment to enhancing jurors' experience.

Submitted to the Texas House Judiciary Committee on November 13, 2008 by Scott Henson on behalf of the Innocence Project of Texas.

Sunset's Plan to Abolish TYC

I probably won't have a chance to fully read their report until the weekend, but the papers this morning are full of news that Texas' Sunset Advisory Commission proposed merging the Texas Youth Commission and the Juvenile Probation Commission into a single juvenile justice agency.

See initial MSM coverage from the Austin Statesman, the Dallas News, the Fort Worth Star-Telegram, and AP. Both juvenile probation chief Vicki Spriggs and new TYC executive commissioner Cherie Townsend opposed the idea, but Sen. Whitmire dismissed the plan's critics, saying, "Anyone who wants to protect the status quo is going to have a very difficult time justifying their position now."

To be fair, I'm not sure there IS a status quo at TYC right now. The place has been in constant flux, yanked first this way then that, for a year and a half with no end in sight. One can see why Vicki Spriggs might be hesitant to get drawn into the maelstrom! Certainly there's no argument to preserve the status quo, but one could could credibly argue to give the brand spanking new executive commissioner a little time to turn the ship around. I don't know that she can, but then I don't know if a merger would work, either.

I'm also not sure I completely buy the financial assessment in the report that the state can save $27.6 million per year by merging the agencies. That's because county probation departments, who will be tasked with managing these youth, will either have to fabricate services from whole cloth, which will include substantial startup costs, or pay for private placement that in many cases simply does not exist. However, the Sunset report declared that:

Combining TYC and TJPC’s functions into a single agency, the new Texas Juvenile Justice Department, should result in significant savings to the State. Most of these savings would realized by reducing administrative staff and closing facilities. Based on likely decisions of the new Department and the Legislature, Sunset staff estimates a minimum annual savings of $594,616 associated with a reduction of five duplicative director-level positions, and up to $27.6 million and a reduction of 587 full-time equivalents (FTEs) associated with a 10 percent reduction in TYC central offi ce staff and the closure of ... the Victory Field, West Texas, and Ron Jackson II institutions.

I don't understand why any cost savings from closing TYC units or reducing central office staff wouldn't be entirely eaten up by new costs of sending money to counties to pay for supervising the same kids? Costs don't go away just because TYC fires 587 workers, they just shift downstream to county probation departments. In fact, LBB recently projected the number of kids committed to TYC would increase over the next few years, so it makes little sense to assume that handling the kids through many counties instead of a single state carceral agency will provide much cost savings.

The cost savings statement in the report declares that new probation spending "would not have a direct fiscal impact to the State" (p. 29) but honestly I don't believe that's possible. To say the least, this is an underdeveloped part of the plan. You can already hear the Texas Association of Counties crying, "Unfunded Mandate," and if the state doesn't provide money for the kids county probation departments will have to place, they'll be right.

Though I've certainly got questions about the idea, I'm going to give myself a chance to read the full Sunset report, listen to what others have to say, and mull this over before passing judgment. As always, let me know what y'all think in the comments (and though I know this is scary and difficult, TYC employees, please try to be constructive).

New Sunset Reports Out

I've not had time to read them yet, but three new "Sunset" evaluations of Texas criminal justice agencies were released today, including:

• Texas Youth Commission
• Texas Juvenile Probation Commission
• Texas Commission on Jail Standards

See also Sunset reports for:

• Commission on Law Enforcement Officer Standards and Education
• Department of Public Safety

Committees rounding out interim charge hearings

Though the legislative session hasn't officially begun, tomorrow (Thursday, Nov. 13) is a busy day for legislative committee action on criminal justice topics. At 10 a.m., the Senate Criminal Justice Committee will round out its ambitious interim agenda with a public hearing on three critical topics:

Interim Charge 1: Determine how private prisons are complying with state laws and how cost, safety, living conditions and rehabilitative services at private prisons compare with state-run facilities. Include an assessment of the staff turnover rates and compensation of private contractors when compared with state-operated facilities, and of the contract bidding processes used by the Texas Youth Commission and the Texas Department of Criminal Justice.

Interim Charge 4: Monitor the implementation of the new and expanded programs provided to the Texas Department of Criminal Justice (TDCJ) within the Fiscal Year 2008 and 2009 budget, and identify their impact on the criminal justice populations. Study security issues within TDCJ, including staffing issues, use of lock down procedures, the control and containment of infectious diseases and the introduction and control of contraband within the institutions. Review the use of career ladders for employees of TDCJ and issues surrounding the retention of professional corrections staff. Study the issues of independent oversight of TDCJ, including the use and effectiveness of the TDCJ ombudsman system. Provide recommendations for the reduction or elimination of barriers to an effective corrections system.

Interim Charge 9: Review the processes for re-entry of criminal offenders into communities. Identify barriers to the successful return to law-abiding behavior, including the absence of employment opportunities created by restriction on obtaining certain state occupational licenses. Provide recommendations for improvements to our current statutes governing this matter.

All fascinating and important stuff. In addition, two of the three interim study topics on the agenda of the House Judiciary Committee, which meets tomorrow at 9:30 a.m., also relate to topics frequently discussed on this blog:

1. Examine the current Texas jury system. Consider possible changes to enhance the jury experience and increase citizen participation on juries.

2. Examine the current Texas court system, including its complex layers of trial courts with overlapping and varying jurisdiction. Consider whether the system needs modernization to improve judicial efficiency.

Before session starts, these commitees will be issuing interim reports recommending legislative solutions to problems they're now assessing, so what we're hearing at these events may be a preview of debates over specific bills in these same committees in just a few months.

Go here on Thursday morning to watch the hearings live.

Guillen bill would reduce licensure barriers for many former felons

Ana Correa from the Texas Criminal Justice Coalition points out another good re-entry related bill authored by last session's House Appropriations Vice-Chairman Ryan Guillen, HB 70, described thusly in a TDCJ fact sheet she sent me (not online):

Returning offenders need gainful employment in order to reintegrate and take personal responsibility.

Texas has 168 state laws that forbid felons from obtaining jobs. Texas law also designates over 2000 individual offenses as felonies, which results in a huge felon population in Texas. In fact, approximately 1 in 11 Texas adults have a felony conviction on his or her record. These people must find jobs and housing or risk returning to illegal activity to survive.

What does the bill do?

House Bill 70, by Representative Ryan Guillen, would allow for the provisional licensure of individuals convicted of misdemeanors or non-violent, non-sex-related felonies. The bill would not allow crimes older than 5 years to count against an individual’s eligibility for professional licenses, and it would allow those with a recent criminal history to be granted a 6-month temporary license on the condition that they not break laws or administrative rules and not be revoked from parole or probation. Successful completion of the provisionary period would result in the granting of a full license, while failure to comply would result in disqualification of the license.

Licensing requirements apply to a wide range of jobs that should be available to qualified ex-offenders.

Licensing requirements apply to a significant number of occupations, including cosmetologist, manicurist, air conditioning and refrigeration contractors, electricians, water well drillers, and many others.

This list is not complete, but it does reveal the array of options arbitrarily excluded from ex-offenders. By expanding the range of possible vocations, the State can encourage these individuals to support themselves by applying their particular skill sets, thereby reducing the likelihood that they will remain unemployed or return to crime.

H.B. 70 would assist reformed Texans in becoming contributing members of society

By allowing ex-offenders to obtain provisional licenses for which they are otherwise qualified, Texas can help returning offenders obtain gainful employment, which will facilitate their reintegration into our communities and allow them to take personal responsibility for their actions.

New Harris DA should re-examine charging decisions on petty drug cases

Houston Chronicle columnist Rick Casey previews a Pat Lykos administration at the Harris County District Attorney's Office:

here comes Lykos, who has not only never prosecuted but who also has never headed a large organization, to lead one of the largest law firms in town, with about 250 prosecutors and hundreds of support staff.

It's no wonder some prosecutors, who have been laboring since March under the steady hand of interim DA Kenneth Magidson, a career federal prosecutor, are nervous about their futures. Especially since Lykos had a reputation for a somewhat mercurial temperament as a judge.

They will have to wait to see how she will be as a leader, but here are some issues and areas they can expect her to address:

• She believes that most the current staff are "good, honorable people," but also thinks that a few who "really did bad things" under Rosenthal have not been held accountable. She intends to remedy that.
• Outside the office, she said she plans to work with County Judge Emmett to implement recommendations by the Annie Casey Foundation to divert non-violent juveniles away from incarceration at the overloaded Juvenile Justice Center.
• She plans to fight for an independent regional crime lab.
• She will run murder cases "through a finer sifting process" before deciding which ones deserve the death penalty.
• In order to beef up the office's white-collar crime efforts, "I want to meet with Manhattan District Attorney Robert Morgenthau, for advice. He is the best DA in the country, and he tries very complex white-collar cases."
• She said she will intensify ongoing training both in ethics and in technique.

"My goal is to assure the people we will restore the rule of law in Harris County, to restore public confidence," she said.

It's especially remarkable, don't you think, to see the District Attorney-elect - who's replacing a defrocked incumbent from her own party - announce that there's a need to "restore the rule of law in Harris County"? That's quite an implication!

Personally I'd like to see the Harris DA add a few items to her list. The office needs to change how it handles low-level drug offenders, particularly boosting paraphernalia arrests to felonies by sending the evidence to already overburdened crime labs to test residue (and thus charge offenders with possession). Judge Michael McSpadden can give her a primer on this if she's not already aware of the problem.

Similarly, Harris County is the only big county in the state where, for first time drug possession offenders caught with less than a gram of a controlled substance - cases in which courts are mandated to give probation on the first offense - prosecutors routinely seek and get jail time in the county hoosgow as a condition of probation. Those type of overly punitive charging decisions on low-level offenses are needlessly jamming up the courts, not to mention contributing to jail overcrowding, and it's within Judge Lykos' purview to change them once she takes office.

Federal litigation seeks individualized review of sex offender cases by parole board

The Dallas News has excellent coverage ("Criminals, advocates target Texas parole restrictions as unfair to sex offenders," Nov. 12) of litigation regarding assignment of sex offender restrictions (dubbed "Condition X") by the parole board, aiming to force the board to evaluate each case individually. The article by Diane Jennings describes the ongoing lawsuit brought by attorneys Bill Habern and Richard Gladden that's already spurring changes in the parole process for sex offenders:

though their efforts mostly have been rebuffed by state judges, they're gaining some traction in federal courts:

• In 2004, the 5th U.S. Circuit Court of Appeals ruled that "Condition X" can't be imposed on parolees who haven't been convicted of a sex offense, without an "appropriate hearing."

• In 2006, the Texas parole board quit automatically denying sex offenders access to their own children, after a lawsuit claimed the board did not give a parolee notice or a hearing.

• Earlier this year, federal Judge Sam Sparks in Austin expressed "grave concerns over the fundamental fairness" of such parole board hearings and commented that the Texas attorney general's office, which represents state agencies, "has apparently failed to take such constitutional challenges seriously."

Assistant Attorney General David Morales said his office "takes all constitutional challenges seriously."

Condition X is imposed on almost all paroled sex offenders, from those who had consensual sex with an underage teen to violent pedophiles. In some instances, sex offender conditions are even imposed on offenders who don't have a conviction for a sex crime, but whose offense included a sexual aspect. According to the Texas Department of Criminal Justice, about 90 percent of paroled sex offenders have Condition X imposed on them.

Majority vote

It doesn't take much to require the sweeping restrictions of Condition X – just a majority vote of a three-person panel from the Texas Board of Pardons and Paroles. No face-to-face hearing is held before the vote. Instead, each member individually reviews a "parole packet" with information from an institutional parole officer and prison officials, and any supporting material from the inmate's friends and family.

The system gives "someone who is getting out on parole with sex offense stuff less due process than someone who is having their driver's license suspended," said Mr. Gladden, whose business card bears a picture of the Revolutionary War-era "Don't Tread on Me" flag.

Mr. Gladden and Mr. Habern are challenging that procedure in Judge Sparks' court.

When board members consider putting a convict under Condition X, the inmate doesn't know what evidence is presented against him and has no opportunity to respond. He can't even be sure panel members have read his file, Judge Sparks noted.

A parole division employee testified in one case that board members spend an average of 10 to 30 minutes reviewing materials in each case.

"It would certainly appear that if the voting members actually reviewed the files, the ... [process] would take substantially longer than 30 minutes," the judge wrote.

Parole board member Jose Aliseda, who is a lawyer and former county judge, said the recent court cases "have caused us to examine our policy," and the board is trying "to make sure our policies meet constitutional muster." But he said he's "sufficiently comfortable" with the current process.

In a recent 5-4 decision in one case, the Texas Court of Criminal Appeals found the system acceptable.

Though the parole board and the Attorney General defend the process, even victim rights advocates think the whole hog approach (giving every person with a sexual related offense "Condition X") waters down registration and makes it less useful and more harmful:

Parole board member [Jose] Aliseda acknowledges that the restrictions make life difficult, but "I see success stories all the time," he said. "It's not impossible and it's especially not impossible after an offender has established the trust."

Torie Camp, deputy director of the Texas Association Against Sexual Assault, a victim's advocacy group, said the restriction issue is difficult for everyone.

"I can easily see how being a parole board member, you would want to err on the side of caution," she said. "They want to do their very best to keep the community safe."

Balancing the offender's constitutional rights with public safety is hard, she said. But painting all sex offenders with a broad brush "does a disservice to victims of sexual assault," she said, because the restrictions become meaningless.

Like Mr. Habern, she advocates a more individualized approach instead of the restrictions routinely recommended by the parole division and imposed by the parole board.

"For our own community safety, we actually have to look at reasonable and fair treatment for sex offenders when they're coming back into our communities, so they can reintegrate," Ms. Camp said.

More effective individualized assessment is the key to solving many of the criminal justice system's greatest dilemmas, and this is a good example. Usually we think of needing better assessment more on the front end - is someone a flight risk or are they eligible for bond, what programs should someone receive while in prison or on probation, etc. - but individualized assessment is equally necessary on the back end, when offenders are completing their sentences - certainly in these types of cases.

Parole board member Aliseda claims he hears success stories all the time from supervised sex offenders, but I'll bet if you questioned those individuals who make up those "success stories," you'd find most all of them disagree with his stance. I'm also willing to bet that those parolees families and others in their support network bore a tremendous extra burden to help that person succeed that in some cases may have been unnecessary.

Hopefully Habern and Gladden can accomplish through the federal courts something Texas officials should have mustered the gumption to do on their own many moons ago: Ensure "Condition X" applies only to sexual predators, not low-level offenders who never harmed anyone.

Innocence bills are pre-filing highlight so far

Though the session won't actually begin until January, yesterday (Nov. 10) was the first day of pre-filing bills for consideration by the 81st Texas Legislature.

I should add all the usual caveats before pointing out a few interesting highlights - most legislators have yet to file any bills, and most legislation filed, good or bad, won't pass. Moreover, legislation filed early has no greater chance of passing than bills filed later on. Still, pre-filing is our first glimpse of proposed new laws, so with that said, let's examine some criminal justice highlights:

No bills yet from Sen. John Whitmire or Rep. Jerry Madden, both of whom are expected to author significant reform bills this session. But Sen. Rodney Ellis was among the most prolific pre-filers, with 72 bills in the hopper so far including several key innocence-related reforms.

• SB 115: Creating an Innocence Commission
• SB 116: Recording interrogations
• SB 117: Improving eyewitness ID procedures
• SB 260: Improving reliability of informant testimony

Ellis also filed a resolution granting sex abuse victims in Texas Youth Commission cases permission to sue, see the resolution here (pdf).

Sen. Royce West has a good bill (SB 224), that disallows state licensing agencies from using a prior conviction to refuse licensing if the offender successfully completed deferred adjudication. (I'm hoping we'll see some bills before session is done going even further in that regard.)

Sen. Craig Estes from Wichita Falls has come back with his bid to criminalize salvia divinorum, a psychoactive plant that's unlikely to ever become popular as a hallucinogen, unless they ban it.

Sen. Judith Zaffirini has a bill (SB 60) mandating the right of an employee to take time off work to attend court proceedings in a case where they are the victim.

Senators Deuell and Van de Putte have once again filed legislation (SB 188) authorizing local governments to establish needle exchange programs. This legislation passed the Senate in 2007 and has a MUCH greater chance of becoming law now that Diane Delisi, who chaired the House Public Health Committee and was a bitter opponent of the idea, has retired from public office. (A pilot program in San Antonio Delisi did approve was derailed by the District Attorney.)

I'll examine more pre-filed criminal justice-related bills as a regular feature on Grits in the next few weeks, plus pay specific attention to the most important ones above - particularly the innocence-related bills - as the legislative session approaches.

See the Texas capitol website for more bill-related information.

Texas won't ask SCOTUS to reinstate dildo ban

We learn at Sex Crimes Blog that "The State of Texas has decided not to seek a writ of certiorari following the Fifth Circuit Court of Appeals decision which overturned Texas's sex-toy ban. The Fifth Circuit's opinion can be viewed here. "

Texas DNA testing backlog may be helped by federal grant

Speaking of crime labs, the national Innocence Project's blog reports on a rebellion in Arizona by localities against new crime lab fees, noting in the same post that:

Lab backlogs are hurting police investigations in Texas, as well. Results from state labs can take months.

Williamson County District Attorney John Bradley explains that in today's 'CSI world' where jurors see scientific evidence easily gleaned from most crime scenes in TV dramas, they expect to see the same in court cases. But because there are so many requests for testing, and too few state technicians to keep up with demand, he says, "When you ask for DNA testing and results, you're buying in to a six month to one year delay in your case."

Read the full story here. (KEYE TV, 11/06/08)

Federal assistance should help to defuse the crisis somewhat in Arizona and Texas. The two states, along with Washington, Kentucky and Virginia, recently received a combined $7.8 million in grants from the U.S. Department of Justice to help with DNA testing in serious felony cases. The DOJ’s grant program requires states to comply with standards for storage and testing of evidence, and also to significantly reduce backlogs through improved training and technology. Read more about the DOJ grant program here.

The KEYE story adds, "Bradley says typically about a third of his case load sits for long periods of time awaiting DPS lab results. As his file cabinets fill up with cases, the county jail is getting more crowded, too. And that’s costing not just time, but money."

These backlogs are a problem that will get worse regardless of the outcome of the Melendez-Diaz case, in part because of the advent of "touch DNA" which promises DNA testing will be possible in many more cases in the future.

Even if backlogs are rising, though, that's no excuse for loosening up controls designed to vet evidence (like confronting lab experts at trial). The justice system has become incredibly reliant on crime labs, and the fact is they haven't always merited the great trust the system puts in them.

Pragmatism vs. Confrontation frames SCOTUS' lab report debate

From this excellent SCOTUSBlog analysis, it sounds like Justice Kennedy and a majority on the high court in the Melendez-Diaz vs. Massachussetts case are leaning toward requiring crime lab workers to testify instead of just forwarding their written lab reports. Wrote SCOTUSBlog's Lyle Denniston :

The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?

Justice Scalia was the most ardent champion of requiring confrontation, reports Denniston, while the main concerns were pragmatic: Would the requirement overburden crime labs that in most cases (as in Texas) already experience significant backlogs? Even so, Scalia agreed with the argument put forward by Melendez-Diaz's attorney, as quoted in USA Today:

"Introducing forensic laboratory reports (without live witnesses) is the modern equivalent of trial by affidavit," said Stanford University law professor Jeffrey Fisher, representing Luis Melendez-Diaz

Indeed, pragmatic concerns about lab volume - not any legal argument - appeared to be the primary factor weighing in the state's favor, reported the Boston Globe:

The justices acknowledged that their decision could have far-reaching effects on the backlog and workload at crime labs nationally.

"This is a very, very substantial burden" if the court rules that states must have analysts testify at trials, Justice Anthony Kennedy said.

Requiring chemists to testify at trials would "dramatically" increase the backlog at Massachusetts' laboratories, said Emily LaGrassa, a spokeswoman in the attorney general's office. The office could not provide a more specific estimate. The Department of Public Health employs 15 chemists to analyze substances and has a 600-case backlog, LaGrassa said.

The justices pointed to California's system, in which drug analysis certificates can be admitted as evidence only if the analyst who prepares the report testifies, or if the defense stipulates that the reports can be admitted without testimony. When asked why Massachusetts couldn't function under a similar system, Coakley said she was not familiar enough with the California system.

The Massachussetts Attorney General was unprepared for some of the Justices' questions, in particular embarrassing herself somewhat when she couldn't explain how states that already required confrontation - like California with its massive justice system - operated without any of the unintended consequences she ruefully predicted if the court decided in the defendant's favor.

The case will be decided by next spring. Here's a link to the transcript (pdf), an amicus brief (pdf) from the National Innocence Network cited by Justice Breyer, another oft-mentioned amicus brief (pdf) from 35 states and the District of Columbia, plus a roundup of related coverage so far:

• SCOTUSBlog
• The Confrontation Blog
  
• Boston Globe
• New York Times
• USA Today
• Associated Press

See also prior, related Grits posts:

• Scotus to hear debate on whether lab reports are objective or testimonial
• Pending SCOTUS case could moot proposal to admit DWI breath tests without cross examination
• Are crime lab reports 'testimonial' documents? SCOTUS will decide

Consultant recommends DPS create 'Special Ops' team for snooping

Speaking of political snooping, check out this troubling passage from the recently issued Deloitte and Touche consultant recommendations (pdf, p. 14) for reorganizing the Texas Department of Public Safety:

Deloitte recommends creation of a new Special Operations Group within the new Intelligence and Counter-Terrorism Division to be explicitly intelligence driven. The Special Operations Group should collect investigative and intelligence data on threats, terrorism and violent criminal gangs. It would perform counter-surveillance on key facilities like the Governor’s Mansion and State Capitol. It would perform surveillance on possible terrorists and violent criminal enterprises, provide back-up undercover investigators to infiltrate such organizations (emphasis added) and directly fill intelligence gaps through collection in a rapid fashion.

If the "violent criminal enterprises" they're talking about "infiltrating" are Mexican drug cartels or prison gangs, that's one thing. If they're talking about infiltrating dissident political organizations, as we've seen from the UT-Austin police or, in another era, from the Nixon Administration, my inclination would be to oppose undercover infiltration except where DPS is investigating a specific crime or criminal organization based on articulable reasonable suspicion. Another section of the report makes it sound like a more common use of the proposed Special Operations Group would be to gather intelligence on groups that might protest the Governor or other key political figures:

The Division should have a Special Operations unit, which would be deployed to conduct protective counter-surveillance on the Governor’s protection detail, the Lieutenant Governor, visiting dignitaries, the State Capital and Governor’s Mansion. The protection of these potential targets should be intelligence driven. ...

The Special Operations group would be the “eyes and ears” of the Intelligence & Counter- Terrorism division by tasking and deploying “collectors” of information deemed to be important to the overall intelligence and counter-terrorism effort. The unit should be organized to enable it to shift quickly into law enforcement operations, based upon threat intelligence.

The section of the Deloitte report on intelligence (intentionally?) conflates combating "terrorism" with more mundane but much more common law enforcement duties and also DPS' protective service duties regarding elected officials and state facilities. That leaves the door wide open for abusing this authority without further clarification. There are not enough checks and balances currently proposed in the Deloitte report to ensure abuses won't occur.

In addition, Deloitte supports throwing good money after bad by integrating the state's near-worthless "fusion centers," which have been a black hole for spending with virtually no demonstrable public safety benefit, into DPS' new intelligence division they've proposed:

Deloitte recommends significantly expanding the capabilities of the existing Fusion Center at DPS to become the State’s central point for the collection, analysis, and dissemination of criminal, terrorist, and homeland security related information. The center should seek to integrate its activities with those of regional fusion centers in Houston and North Texas, as well as significantly increasing representation of local and federal law enforcement and homeland security agencies on the team.

Admittedly these programs haven't been well coordinated, but that's because the Fusion Centers and border security grants were political stunts the Governor and the Lege were pushing for electioneering purposes, not initiatives driven by law enforcement needs. The state would do well to scrap the fusion centers, keep DPS criminal intelligence services integrated into their investigative units, and leave the political snooping to the FBI.

Tight budget times call for scrapping Big Brother

Saying "no" to a couple of ill-conceived, Big-Brotherish initiatives in the Department of Public Safety's exceptional items budget would save the Texas taxpayers $159 million in a time when budgets are tight. Neither are an effective use of criminal justice resources compared to other ways the state could use that much money.

For starters, in its list of "exceptional items" (pdf) in its legislative budget request, the Texas Department of Public Safety said it would cost $129,147,375 over the next biennium to implement the federal REAL ID Act. Strangely, that's about half the amount DPS said implementation would cost in 2007 (when the Legislature declined to fund the changes), but it's still a lot of money. Back then, DPS estimated the ongoing costs for Real ID implementation would be as much as $100 million per year after startup was complete - perhaps that number for the out-year costs will decline, too, now that Col. Tommy Davis, who was resistant to implementing Real ID, is no longer in charge of the agency.

Another DPS exceptional item requests around $30 million over two years to pay for the infamous TDEX database (a Texas' version of "Total Information Awareness"), which the Legislature declined to fund but which the Governor developed anyway using federal grants. This is as much an unfunded mandate as the Real ID Act, it's just coming from the Governor instead of from Congress.

In both instances, in the words of Bartleby the Scrivener, "I would prefer not to." As far as I'm concerned, both projects should scrapped and the $159 million spent on more worthy criminal justice programs.

SCOTUS to hear debate on whether forensic science is objective or testimonial

SCOTUSBlog and Doc Berman let us know that the US Supreme Court today will hear oral arguments in Melendez-Diaz vs. Massachussetts, a case I've been watching (see prior Grits coverage) because it will determine whether forensic technicians should be subject to cross examination at trial under the Constitution's "Confrontation Clause."

Anybody who thinks lab experts don't require vetting need look no further than the recent Texas Department of Public Safety case where:

During a routine audit, DPS breath test employees found that electronic records had been altered to make it appear that the technical supervisor had inspected breath test instruments in several locations when the contractor had not in fact examined them to ensure that the calibrations were accurate.

There are many other examples where forensic technicians clearly deserved to be vetted. Forensic science is not neutral or objective like work by scientists who perform basic research. Forensic science is goal-oriented, often performed by people who consider themselves as much cop as scientific expert, plus many forensic disciplines based on expert comparisons are quite subjective and subject to high error rates.

I hope attorneys and Justices at the Melendez-Diaz oral argument delve deeply into this question of the relative neutrality and objectivity of forensic science. If they do, I've little doubt they'll conclude forensic results are "testimonial" evidence that defendants should have a right to confront at trial.

RELATED: At Talk Left, Jeralyn informs us that thousands of DWI cases in Arizona may be tossed over an essentially similar confrontation issue - the vendor who makes the breathalyzer machines refuses to reveal their source code, even in defiance of a judicial order.

Evaluating new DWI treatment programs

Here's something interesting I just noticed on the Texas Legislative Budget Board's website: A request for proposals (pdf) to evaluate new in-prison DWI treatment programs. Proposals were due Oct. 20, so they'll be picking a vendor soon if they haven't already. Here's a description of the work evaluators will be doing according to the RFP (p. 15):

A key focus of the 80th Legislative session was the provision of funding for the state's criminal justice system to enhance treatment programs and manage projected offender population growth over the next several years. One such initiative was the establishment of a Driving While Intoxicated (DWI) in-prison treatment program.

The In-Prison Driving While Intoxicated (DWI) Recovery Program (500-bed male facility) is located at 900 Industrial Drive, Henderson, Texas 75653, as part of the East Texas Treatment Facility. The program is operated by Management and Training Corporation (MTC) through a contract with the Texas Department of Criminal Justice (TDCJ). Eligible offenders are provided a DWI-specific course of treatment for an average period of six months with the provision of a Comprehensive Assessment Plan to be submitted to the Parole Division to be included in the Parole Case Summary. Eligible DWI participants are defined in Section 14, Article 42.12, Texas Code of Criminal Procedure and Section 493.009, Texas Government Code.

Funding was provided to TDCJ to design and begin operating the program during fiscal year 2008. The program became operational in March 2008, and as of August 31, 2008 has received 544 offenders.

This study will provide independent, objective information and analysis of the funded program. The study will collect, consolidate, and present information regarding specific policy actions and steps the State of Texas can take to:

• Better coordinate state resources;
• Ensure better delivery of state/vendor services;
• Identify TDCJ and program infrastructure issues that are barriers to program quality;
• Identify and make recommendations for changes to state laws that conflict or offer a deterrent to the success of the program;
• Identify opportunities to enhance community-based transitional housing opportunities; and
• Ensure that the basic foundation of the TDCJ program is conducive to reducing recidivism.

All of these issues should be reviewed with an aim to improve program quality, while also seeking to reduce contact with the state's criminal justice system.
This formative and process evaluation study should, at minimum, address:

• Realistic strategies to provide treatment and services to rehabilitate offenders;
• Assess credentials and training of program staff as well as TDCJ's oversight staff;
• Assess program structure and organization to ensure best quality;
• Ensure that program is operating from legitimate evidence-based published curriculum;
• Evaluate the proper placement of offenders in the program;
• Evaluate Program Services to ensure the existence of a strong assessment of needs, dual diagnoses responses, response to co-occurring mental issues and relapse plans; and
• Assess the size and scope of the program design in relation to the spectrum of in-prison substance abuse programs offered in TDCJ and the demand for the program.

3.6 Deliverables
The study requested in this RFP requires a minimum of two (2) written deliverables and various scheduled meetings as described by the following:

Deliverable One: Initial progress report is due January 27, 2009. The initial progress report must include an outline of steps taken to provide an assessment of program quality, offender placement into the program, availability and use of a strong assessment of needs tool, and assessment of credentials and training of staff. The report will provide an initial assessment of the quality of the program provided. In addition, this report will include any recommendations for policy or law changes.

Deliverable Two: Final report is due April 20, 2009. This report will provide a complete analysis of the Driving While Intoxicated (DWI) Recovery Program. The analysis will include a final conclusion on all the deliverables provided in Deliverable One. In addition, this report will determine if TDCJ is following the initial Individualized Treatment Plan (for those offenders in the DWI program) completed during initial intake of offenders entering the prison system. The report shall also include an assessment and recommendation of any program infrastructure issues and state laws that are

This is all well and good, but the scope of work doesn't seem to address the evaluation metric that actually drove the Legislature to launch the program in the first place: Has the existence of in-prison substance abuse treatment increased the rate at which the parole board approves release for DWI offenders? That's why this program was created - because parole board chief Rissie Owens said if offenders had received no treatment, parole board members were reluctanct to let them back on the streets. So now that treatment is in place, will they grant parole for offenders who complete the program? The scope of work identified for program evaluators doesn't seem to address the question. (Perhaps it's too early to tell - the earliest offenders who began the program in March would have only finished in September.)

Another thing, in the long run, it seems to me that if Texas is going to shift further toward treatment oriented, evidence-based criminal justice policies, it's absolutely essential that TDCJ (or some other entity like the now-defunct Criminal Justice Policy Council) develop expertise in-house to evaluate them, not just rely every time on outside consultants to examine every individual, narrow program.

Layoffs, re-org at TYC Central Admin

According to Mike Ward at the Austin Statesman:

Twenty-three jobs have been eliminated at the Texas Youth Commission’s Austin headquarters and 12 other positions will be frozen to save $1.7 million, officials said late this afternoon.

Seven employees are being laid off. The rest of the cuts are in vacant jobs.

Jim Hurley, the agency’s spokesman, would not discuss who was laid off.

“We’re not commenting on any names,” Hurley said, noting that the affected employees were given notice yesterday. “This was middle to top level.”

The layoffs will become effective at the end of November, officials said, and are part of a management reorganization — the fourth in two years at the agency.

In an email to TYC staff announcing the changes, Executive Commissioner Cherie Townsend said:

One of the hardest jobs for any administrator is making tough decisions that affect our friends and colleagues. No one wants to see any of our coworkers displaced; however, we are confronted with the reality that our current funding level simply will not support the number of positions we currently have in the central office.

At a time when our youth population has been reduced by more than 50 percent, we must acknowledge this changing dynamic requires a significant reduction in central office staff to restore proper balance. After an extensive review, I have instructed the Human Resources Department to conduct a Reduction in Force (RIF) and eliminate twenty-three (23) positions from the central office payroll effective November 30, 2008. I have also instructed HR to freeze an additional twelve (12) positions which are tied to the TYC youth population. Unless there is a significant increase in the TYC population, these positions will be eliminated at the end of this fiscal year. This will result in a net reduction in our budgeted central office personnel costs of nearly $1.7 million.

I have done my best to ensure as few people are affected as possible. The good news is that a majority of the positions to be eliminated are empty. However, seven positions are currently filled and those employees will be adversely affected. We will do everything we can to assist those employees in finding new jobs.

UPDATE: Expect more layoffs to come: In the first exceptional item (pdf) in TYC's Legislative Appropriations Request submitted to the Legislative Budget Board in August, TYC proposed to "reduce agency staff by a total of 172 FTEs each year of the biennium, including 120 Juvenile Correctional Officers, 30 Central Office Administrative staff, and 22 Parole Services staff."

If Obama's busting bad Bush policies, somebody please add new FBI snitch/snooping guidelines to the list

AP reports that President-elect Barack Obama plans to use executive orders to overturn numerous Bush-administration policies implemented by executive fiat (perhaps including overturning some of the President's notorious "signing statements"). This is to be expected and in most cases I'm glad to see it. (Bush did the same thing with many Clinton-era executive policies when he first came into office.)

In fact, as long as somebody's compiling a list of unilateral, last minute Bush administration misdeeds that need immediate undoing, allow me to humbly suggest that the FBI's under-the-radar guidelines on snitching and political snooping issued in October are among those that deserve immediate repeal. According to the New York Times, the FBI considered these new rules "one of the final steps by the Bush administration to extend its far-reaching counterterrorism policies into the next administration and beyond."

The most offensive aspect of the new rules as far as I'm concerned was their expansion of FBI investigative tools where there is no reason to suspect criminal wrongdoing, in what's called an "assessment" instead of a full-blown investigation. As described by the Center for Investigative Reporting's Muckraker blog:

The bureau's definition of "assessment" is what seems to startle some observers the most. An assessment is different than a full-blown criminal or national security investigation, the latter of which requires reasonable suspicion, or "factual predication" as the bureau calls it, that a crime has occurred.

Groups or individuals targeted for an assessment may simply resemble to an agent a risk to public safety without any advance information indicating that was the case. It's not clear, then, how the bureau determines what groups or people should be spied upon if they haven't broken any laws and whether that process is arbitrary.

"[The FBI] cannot be content to wait for leads to come in through the actions of others, but rather must be vigilant in detecting terrorist activities to the full extent permitted by law, with an eye towards early intervention and prevention of acts of terrorism before they occur," the new guidelines state.

In other words, the FBI can use its full investigative weight to delve into people's lives - specifically but not exclusively because of political and religious affiliations - whether or not the FBI thinks they might have committed or be planning to commit a crime.

Ironically, by enacting these rules in October, the Bush Administration handed sweeping authority to monitor political dissidents they'd long coveted for themselves to Barack Obama and Rahm Emanuel, which must now look like an error in strategic judgment. Rather than embrace this anti-democratic power to snoop on his political enemies, though, President-elect Obama would do well to renounce this new authority and tell the FBI to revert to their old rules.

There's a darn good reason the FBI rules prohibited domestic intelligence investigations based on politics instead of suspicion of criminal activity: Those who've forgotten those three-decade old lessons should peruse through the relevant archives of the Church Committee from the 1970s, which fully investigated abuses of similar power under the Nixon Administration.

In fact, when I heard about the new FBI guidelines, the first thing I thought of was their similarity to the notorious "Huston Plan," which Richard Nixon authorized to spy on domestic American dissidents. According to the Church Committee, Nixon's decision to unilaterally expand domestic intelligence gathering as suggested in the Huston Plan "formed the core of Article 11 in the Impeachment Articles framed by the Judiciary Committee of the House of Representatives in 1974." Even so, seemingly few people even noticed when the Bush Administration rather publicly reinstated those same, long-banned practices.

These new FBI guidelines are a Huston Plan for the 21st Century, and they were approved unilaterally, over the objection of Congressional leaders. President Obama should repeal those new guidelines by executive fiat as soon as he gets the chance, unilaterally, the same way his predecessor enacted them.

MORE: Jeralyn at TalkLeft reports that FBI Director Robert Mueller will likely stay on in an Obama administration, linking this news to the question of whether the guidelines might be overturned:

Yesterday, I included rejecting the new FBI snooping guidelines approved in September and October by Bush, Mueller and Attorney General Mukasey among my suggestions for President-Elect Barack Obama. ... How likely is that if Mueller is staying on as FBI Director?

Excellent point - that does seem to dampen hopes for an Obama Administration rolling back executive snooping powers. (Though it's early yet - maybe they'll still surprise me.) Jeralyn also provides these excellent links to relevant source documents:

• New FBI guidelines for investigations in full
• Memo discussing the changes distributed to Justice Department staffers (9/29)
• Testimony of FBI general counsel Valerie Caproni to the Senate Select Committee on Intelligence (9/23)
• Mueller Testimony: Senate Judiciary Committee (9/17)
• Mueller Testimony: House Judiciary Committee (9/16)
• Historical analysis of the guidelines by the Electronic Privacy Information Center

Criminal justice implications of 2008 elections from the courthouse to the Whitehoue

Looking around the web this morning, I see the newspapers and blogs have had time to begin assessing some of the criminal justice implications of Tuesday's historic election from the local to the national level, so let me point out a few highlights.

On the national front, Doc Berman has been busy since Tuesday writing about implications of the shift at the federal level, providing a few hints at Obama's transition plan priorities regarding drug policy reform, brings news of an extensive "Smart on Crime" agenda endorsed by 20 organizations, ponders appointments for US Attorney General and Solicitor General, and points us to this depressing piece from Drug War Chronicle about the success of two Oregon initiatives and the failure of California's Prop 5 that show "tough on crime can still trump smart on crime." An earlier SL&P post pointed out this compilation of state-level results on drug policy reform ballot initiatives.

Also, see Karl Keys' excellent post, "Jan. 21, 2009: Crimlaw Issues" in which the blogger from Capital Defense Weekly reads tea leaves from Barack Obama's public statements on crime policy.

It's hard to say yet what these elections meant for the Texas Legislature on criminal justice issues, and I'll wait to assess that more extensively once they finish counting votes in Linda Harper-Brown's race (otherwise Republicans control the House 76-74). A great deal hinges on who will be the next speaker, and I'm not among those who assume that because the Democrats picked up a few seats, Tom Craddick is necessarily gone. If Harper-Brown's seat flips and it becomes a 75-75 House, then I think we'll definitely see someone different, plus a lot of new committee chairs. Otherwise ... quien sabe?

On the Senate side, the Ds only pickup was Kim Brimer's loss in Tarrant County to Democrat Wendy Davis, a former Fort Worth city council member That brings the Democratic total in the Senate to 12 out of 31 seats, a far cry from the 50-50 split in the House, but still significant because 11 votes are necessary to block legislation in the Senate from coming to the floor.

Mark Bennett has a great roundup of judicial elections in Harrs County, evaluating the merits behind the wailing and gnashing of teeth in Prosecutorlandia over a crop of rookie Democratic judges. While approving of most of the new Harris judges, Bennett said that overall, "What the Harris County voters delivered was not perfect — Harris County has lost a couple of good judges, and picked up a couple of real question marks." See more bloggerly coverage of the Houston courthouse races at Life at the Harris County Criminal Justice Center, and also a post at the Wall Street Journal Law Blog.

The Houston Chronicle had this piece on Harris County's judicial turnover, in which, "On the criminal side, one-third of the 22 judges [in Harris County] will be new" The transition will be an ongoing story, says the Chron, since "four of the criminal court losers — Devon Anderson, Caprice Cosper, Brock Thomas and Mike Wilkinson — took special training to preside over the county's drug courts, a program to divert drug offenders to treatment. Other judges will have to take the training if the program is to continue." OTOH, Harris judges have been a particularly obstinate bunch regarding sentencing and pretrial incarceration policy, so it'll be very interesting to see what happens. "Incoming Democrat Randy Roll, who will take over Wilkinson's bench, said he expects the new criminal judges to 'shake it up a little bit.'"

Texas Lawyer also had extensive coverage of the Houston races, as well as a good piece covering (mostly) "nailbiter" Republican victories on the appellate courts.

In Dallas, only six judicial races were in play - three of them criminal courts - and Democrats took all of them on party-line margins, solidifying Dems' control of Big D's judiciary and foreshadowing what could be in store for Harris County over the next few election cycles as the demographics continue to transform.

Let me know what other criminal justice implications you foresee from Tuesday's elections.

RELATED: Capital Defense Weekly lets us know that "Talkleft, PFAW, & NACDL all have thoughts on yesterday’s federal election and crimlaw. Mark Bennett & StandDown looks at the elections in Texas and crimlaw."

See more Grits post-election coverage:

• More Criminal Justice Election Highlights
• Tyler voters pick schools over jails
• Court races will be spearpoint of Texas Dems' future statewide success

Bloggerly scrutiny of Texas private prisons

I've got a busy day today away from the blog, but while I'm gone, check out several excellent, recent posts from our friends at Texas Prison Bidness:

• GEO keeps quiet on murder indictment (includes an extensive catalog of recent GEO-related scandals by Bob Libal)
• Idaho cancels contract with GEO's Billy Clayton unit, also by Bob.
• Parts One and Two of whats turning into an excellent three-part series by Nick Hudson on the Mineral Wells Pre-Parole facility.

Excellent bloggerly work!

Is "Babysitting While White" reasonable suspicion for police questioning?

Normally this blog focuses on the news of the day instead of personal stories, but I had an odd experience this morning that intersects with many of this blog's common themes, so I hope readers will excuse this self-indulgent anecdote.

In short, the Austin Police Department inconvenienced, annoyed, and angered me, in that order, culminating in an incident where I was subjected to an odd and surprisingly overt brand of racial profiling just two blocks from my own house.

Before getting into the racial profiling angle, though, let me provide some necessary background for this morning's anecdote. I've been taking care of my granddaughter Ty today because Austin police inexplicably ordered seven area schools shut down after a shootout overnight with police involving one suspect killed and two more still at large. Nearby day care facilities closed along with the schools, including the one where Ty usually goes. Fair enough. But when my goddaughter called in a panic with no child care for the day, it meant I found myself tasked with unplanned, impromptu babysitting duties, like hundreds of other parents and grandparents around Austin.

Two-year old Ty particularly loves a nearby neighborhood park, so off we went around mid-morning with her tiny hand wrapped around my index finger. After a fun time, we took a different route going back, at Ty's suggestion, in order to pass by a house where she knows she'll often see (and get to pet) a couple of friendly cats.

Two blocks from home, an Austin police officer pulled up and, to my surprise, got out and announced she was there to question me. Someone had called 911, she said, to report a suspicious looking white man walking down the street holding hands with a black toddler. (I could tell where this line of questioning was headed.) She said this as though it were the most natural thing in the world for police to investigate, as though my race and Ty's, in and of itself, was reason enough to stop and question me.

I've heard of racial profiling episodes involving "Driving While Black," but "Babysitting While White" is a new one on me. 'What's your relationship with this girl?', she wanted to know. 'Where are you going, where are you coming from?' "No offense," I told her, "but that's none of your business."

Not wanting to violate the failure to identify statute, I gave her my name, address and birthdate but refused to answer any other questions. ("I'm going to write down that you were noncooperative," she warned ominously, as though admonishing an elementary school student that some infraction might go on their permanent record. "Oh no, not that," I thought to myself.)

I asked if we could leave, but the officer kept me there demanding answers. "Someone complained," she declared, "we have to follow up." "Like hell you do," I told her, "not when you don't have reasonable suspicion to think I did anything wrong."

To my astonishment, while we were talking, another officer pulled up in response to the 911 call, this one a tall, older, thick-chested fellow with graying hair who felt the need to demonstrate his dominance. I replied to his "I'm in charge here" bluster by again asking, "Am I free to go?" "No you are not," he insisted, "not until I'm finished," and continued his pointless monologue.

Meanwhile, a THIRD police car pulled up to the scene. By then I was getting mad. Austin police had already disrupted my day significantly because they're supposedly out hunting armed killers, but they've got enough extra cops lollygagging around to send THREE squad cars to investigate me for Babysitting While White?

"Don't you people have actual crimes to investigate?" I demanded. (Admittedly, that didn't go over so well.)

"Aren't y'all supposed to be chasing shooters with assault rifles? Why are you bothering us?" The tall male cop replied that he'd just been at the locked down neighborhood and was working that case all morning. "Great," I thought, "so they pulled this guy off an actual crime to harass me walking down the street."

The truth is, I'm not so much angry about the racial angle. Black folks have been pointlessly stopped and questioned for generations because of their skin color in this neighborhood, and today it was just my turn. However, I adamantly maintain my skin color alone did not give police reasonable suspicion to question me, just like Driving While Black isn't a reason to pull over an African American driver (or a white driver because they're in a black neighborhood). And as a taxpayer, I'm incredulous that APD wasted three officers' time to respond to such a spurious 911 call at a moment when there were actual, violent criminals running around town with assault weapons. Don't these guys have supervisors? Prioritize, people!

Finally, the first officer answered my increasingly repetitious question, "Am I free to go?" with a reluctant "Yes," at which point I turned heel with the toddler grasped firmly in my arms and walked briskly towards home, both of us a little rattled by the experience. "They scared me, Grandpa," Ty said, sobbing lightly as she nestled her head into the crook of my neck. "I know, sweetie," I told her, "they scared me, too." And by the time we reached home, she was asleep in my arms.

More Texas Criminal Justice Election Highlights

Having already analyzed yesterday's court races and the Tyler jail vote, I wanted to update readers on a few other high-profile, contested criminal justice-related races we've been discussing on this blog:

Sheriff arrested for cartel affiliations re-elected
For starters, I can't help but point out that Starr County voters re-elected Sheriff Reymundo Guerra, which would be unremarkable except that he was recently arrested for allegedly working as an informant and functionary for the infamous Mexico-based Gulf Cartel! Granted, he was running unopposed and there's not a "none of the above" option, but that's still pretty funny! Reported KVUE-TV, "Even if he technically wins re-election, the sheriff of Starr County is not expected to go back to work anytime soon."

New Sheriff in Harris, Still Counting DA's Race Votes
I already mentioned the Democrats' near-sweep in Harris County judicial races (Mark Bennett has more), but didn't point out that long-time GOP incumbent Tommy Thomas lost to Democratic challenger Adrian Garcia, an historic upset. That's as big a deal, arguably as important a moment in Harris County's political transformation as was Craig Watkins' upset of District Attorney Bill Hill in Dallas in 2006. Garcia is a former police officer and a Houston city councilmember.

Spoiling any pretensions of one-party dominance, however, former District Judge Pat Lykos, a Republican, appears to have pulled off a nailbiting upset over former Houston police chief Clarence Bradford in the Harris County District Attorney's race, possibly a result of voters' rocky memories of his tenure as Houston's top cop. Bradford has yet to concede, though, and there are still 10,000 uncounted provisional ballots; as of the most recently reported numbers, Lykos was ahead by around 5,000 votes.

Congratulations, Lupe, now fix the jail
In Dallas, Sheriff Lupe Valdez defeated her Republican challenger by a 55-45 margin with the help of higher than usual central city turnout, giving her four more years to figure out how to get the jail to pass inspection.

Step One: Don't Get Indicted for Bribery
In Bexar County, Democrat Amadeo Ortiz beat Republican Dennis McKnight (whom I favored for the job) for the Sheriff's post. From what I've seen, Ortiz doesn't seem nearly as focused on problems at the jail as I think he'll need to be, while McKnight is an acknowledged expert with a real handle on how to fix the jail's looming crises - only time will tell if Ortiz is up to the job. One thing in his favor: Ortiz replaces a man who resigned to avoid bribery charges, so the bar's been set pretty low.

Midland jail to expand
Somehow this one had flown under my radar screen, but Midland voters approved a $22 million bond to expand their jail. Even with no formal opposition the proposal wasn't overwhelmingly popular: "The bond passed with 54 percent of the votes — 22,762 versus 19,407."

West Coast Update
California voters sent a mixed message with their votes on the propositions we'd earlier discussed, voting down both the treatment-not-incarceration package (Prop 5) and a raft of new penalty increases (Prop 6), but agreeing to new limits on parole and defendants' access to evidence (Prop 9) - see the San Francisco Chronicle coverage and a summary of initiative results from the group Join Together. I guess California voters prefer their prisons overcrowded and dysfunctional, just like they are! Also Prop K, a muncipal ballot initiative in San Francisco which would have decriminalized prostitution, failed by a substantial margin.

Tyler voters pick schools over jails

Tyler voters said "Yes" to schools, but "No" (for the third time in three years) to a new jail. The vote was closer than I'd expected - about 55-45 - but bottom line: No means No. Or, as the political committee created to oppose the jail was named, "What Part of 'No' Don't You Understand?"

Whatever else was going on in this election, we know it's not fears about the economy that drove voter decisions; a $125 million school bond on the same ballot overwhelmingly passed. Surprisingly, after the local newspaper boosted the project for weeks, there's not even a story on the Tyler Morning Telegraph website today about the jail bond's defeat. Until they get around to covering the story, see the anti-jail committee's list of reasons why Smith County voters rejected a new jail for the third year running. IMO they cover most of the bases.

Despite these embarrassing, perennial defeats, I wouldn't be surprised if the Smith County Commissioners Court proposed a new jail for the fourth year in a row in 2009. A better plan, though, would be to more ardently embrace jail diversion strategies and reduce their incarceration rate instead of trying to build their way out of the problem.

Court races will be spearpoint of Texas Dems' future statewide success

For the most part, the power of incumbency is an amazing inertial barrier to enacting change in the judiciary through the ballot box, as Texas' election results last night ably demonstrated.

Democrats challenging for statewide judicial seats couldn't quite get over the hump: Court of Criminal Appeals candidate Susan Strawn and the seldom-seen J.R. Molina, along with a pair of Texas Supreme Court candidates, all fell short of a majority, though once again they were the highest Democratic vote getters on the statewide ballot, posting especially solid numbers in urban areas.

Candidate Sam Houston in his Supreme Court race garnered 45.94% of the vote; Susan Strawn was close behind him with 45.60% of voters backing her bid for the Court of Criminal Appeals. That makes these judicial candidates the highest Democratic vote getters statewide. Their GOP opponents, Dale Wainwright and Tom Price, won with just 51.03% and 51.57% of the vote respectively, making incumbents on those courts easily the most vulnerable statewide races for Democratic pickups in 2010. (Perennial Libertarian candidates made up the difference.)

These high court races are getting darn close to winnable for Dems. In 2006, CCA Presiding Judge Sharon Keller was the GOP's lowest statewide vote getter (besides Gov. Perry, who was in a weird, 4-way contest), winning 56.73% of the vote. This year, incumbent CCA Judge Tom Price won with just 51.57%, a lower figure than the Presidential margin (McCain took 55.43% of the statewide vote; Sen. John Cornyn got 54.74%). These races are getting much closer, quickly!

Think of it this way, Court of Criminal Appeals candidate Susan Strawn, with a minimal budget and no voter outreach, got 92,695 more statewide votes than Democratic Senate candidate Rick Noriega who ran a significant grassroots campaign and was on TV in several markets. For whatever reason, Texas voters appear to dislike Republican judges in greater numbers than they do other statewide pols.

As Texas continues to shift demographically from rural to urban and the Latino vote increases in importance, these electoral trends all favor Democrats and it won't be long before Ds begin picking up statewide races, inevitably starting with judicial appellate seats. In close races where every vote counts, it will be judicial races, ultimately, that become the spearpoint of Democrats' statewide electoral success. Mark my words.

In other positive judicial election news for Democrats, challenger Woodie Jones knocked off Republican Ken Law on the Austin-based 3rd Court of Appeals. Judge Law recently boosted his notoriety, and probably lost the election, after signing off on an opinion recently benefiting GOP whipping boy Tom DeLay that claimed money laundering laws only apply to cash, not checks.

The big Democratic coup of the night came in Harris County where incumbent Republicans were swept out by a wave of Democratic challengers, reminiscent of what happened in Dallas in 2006. Democrats won 21 out of 25 seats, with only four incumbents weathering the maelstrom.

Dems didn't fare so well in appellate races, Kuff reports, though "the Democrats did win one of the Appeals Court races that includes Harris County - Jim Sharp won the Court 1, Place 3 seat that Sam Nuchia lost in the GOP primary to Ed Hubbard by 50.57-49.42. All other Democratic challengers for the 1st and 14th Courts of Appeals lost by margins ranging from 20,000 to 50,000 votes, out of 1.5 million cast. They all carried Harris County, but only Sharp's 58,000-vote margin there was enough to make up for ground lost elsewhere." It should be mentioned that the GOP incumbents who won on the 1st and 14th appellate courts did so by slim margins buoyed by more conservative rural and suburban voters outside Harris County, but their districts in the near term are subject to the same trends as other Houston-area judicial races.

Meanwhile, in San Antonio, reported the Express News:

Bexar County voters Tuesday appeared poised to unseat two of three Republican district judges with more than four decades' combined experience on the bench, as well as elevate a veteran Democratic appellate jurist to chief justice of the 4th Court of Appeals.

Strong straight ticket voting made it unlikely that 379th District Judge Bert Richardson or 57th District Judge Joe Brown Jr. would hold their seats, appearing headed for defeat at the hands of Democrats Ron Rangel and Antonia “Toni” Arteaga, respectively. ...

Additionally, it appeared that 4th Court Justice Catherine Stone would win in her bid to succeed retiring Chief Justice Alma Lopez by defeating Republican Ann Comerio.

According to WOAI radio in San Antonio, "Another well known Republican at the courthouse, veteran Judge David Berchelmann, was very narrowly re-elected, beating Democrat Amber Alwais by 700 votes our of more than a half million cast."

Democrats also picked up an appellate court seat on the 8th Court of Appeals where Guadalupe Rivera defeated a GOP incumbent appointed by Gov. Perry. Two other successful Democratic challenges in local races mean Democrats now hold every judicial seat in El Paso County.

In Dallas, Democrats won every contested judicial seat, defeating Republican incumbents in every case except for Judge John Creuzot who'd switched parties to run as a Democrat. Dallas County has officially flipped and the 2010 countywide races will be a real transition point, one imagines, for that long-time Republican bastion.

Overall, though, it was a Republican night in most Texas judicial contests, despite President-elect Obama's national whipping of Texas' much-preferred presidential choice. But these judicial results show a significant loosening in what not long ago seemed like the GOP's iron grip on the state judiciary

If I were a Democratic strategist, in 2010, I'd make sure the party fielded strong candidates for all six appellate court seats that will be up (3 each on the Supreme Court and the Court of Criminal Appeals) and run a unified campaign on their behalf with a significant TV buy. If they're your statewide candidates with the best chance of winning, why the hell not? The Dems did a little of that for the Supreme Court candidates toward the very end of early voting, but in 2010 there should be a much more focused effort on winning these races, which will almost certainly constitute the vanguard of any Democratic success.

Winning those high court races was how Karl Rove first elected GOP candidates into statewide office after decades of Democratic dominance, and I've believed for some time now that, for similar reasons, the courts are Democrats' best, immediate chance to start winning statewide elections in Texas again.

Note to readers: Let me know in the comments about any other important judicial races you were watching that I missed covering here.

Unconfirmed UAs aren't accurate but used anyway

After all the allegations that the Bexar County probation department made supervision decisions based on faulty, unconfirmed urinalysis tests, I was interested to see a USA Today story ("False results put drug tests under the microscope," Nov. 3) reported by scribe Mimi Hall describing the same problem with a national scope, the:

use of unreliable field drug-test kits as the basis to arrest innocent people on illegal drug charges.

The inexpensive test kits are used by virtually every police department in the country and by federal agents, including Customs officers at the nation's borders. The kits test suspicious materials, and a positive result generally leads to an arrest and court date, pending more sophisticated tests done after the sample is sent to a lab.

The kits use powerful acids that react with the substance in a plastic pouch. If the liquid turns a certain color, it is a considered a positive result. But a number of legal products and plants test positive: chocolate for hashish; rosemary for marijuana; and natural soaps for the "date-rape drug" GHB.

"The tests have no validity," says former FBI narcotics investigator Frederick Whitehurst. And as more organic products come on the market, "the potential for civil rights violations when these presumptive tests are out there is phenomenal." ...

Government officials say there are no records on the number of people who have been wrongly arrested because of the tests. Garrison Courtney of the Drug Enforcement Agency says the test kits are "not perfect but they give you a pretty good idea" whether a suspicious substance is an illegal drug.

Allen Miller of Forensic Source, which makes kits, says they find "families of chemical compounds" and are not meant to be definitive. Any arrest should be the result of good investigative police work, Miller says.

At a minimum, confirmation tests (or admission of use by the testee) should be mandatory before taking either judicial or administrative action, and people should only be required to pay for the confirmation test if it comes back positive - if it exonerates them, the probationer (or whoever's being tested) shouldn't have to pay.

Sloppy forensic science isn't just a problem in high profile rape and murder cases, which is the impression you might get looking only at the long string of Texas-based DNA exonerations - it's just as big a source of false accusations (if not much more common) in penny ante cases where the stakes may not be high enough to justify the risk and expense of fighting them.

CORRECTION: To my chagrin, a commenter corrects me to point out the USA Today article "is talking about field testing on the actual substances found... not urinalysis drug tests." Looking at the story again, that's totally right and I apologize for the error. That said, the principle is the same. When we know cheaper forensics have a higher error rate, access to confirmation tests shouldn't be optional or based on budget concerns.

TYC Sunset report coming soon, new notification rule on meds released

Some readers may be interested in the Texas Youth Commission's new rules regarding giving youth psychotropic medication, particularly the part of the directive that declares:

If a youth is prescribed psychotropic medication, the youth will be verbally notified and the parent/guardian will be notified via the Medication Notification Letter, Word Document HLS-190, of the diagnosis, name of the drug, purpose of the drug, potential side effects or complications of the drug, and safety precautions (if applicable).

If a prescribed psychotropic medication is discontinued, the youth will be verbally notified and the parent/guardian will be notified in writing on the HLS-190.

The policy goes on to spell out rules regarding hoarding and other types of noncompliance by youth.

In other TYC news, new Executive Commissioner said in an email to employees dated Oct. 28 that she'd be:

participating in the exit conference with Sunset Advisory Commission staff on behalf of TYC this week. This exit conference is the last step before the Sunset Advisory Commission staff will write their final report and make recommendations to the Commission. The final report on TYC is expected to be released November 12th and will be considered by the Sunset Advisory Commission in December.

So we can expect the Sunset report on TYC to come out perhaps as early as next week.

Computerizing prosecutor case files a good use of asset forfeiture funds

Ever since the Harris County DA's office was criticized for stockpiling millions in asset forfeiture money, which was either pointlessly hoarded or used as a slush fund for pet projects by former Harris DA Chuck Rosenthal, interim DA Ken Magdison has been looking to use the money for more legitimate projects, in part to keep the Legislature next spring from dedicating some of that money toward other projects if it appears the big-county DAs aren't using the money effectively.

Most recently, Magdison approved $225,000 for "a uniquely cooperative program to digitally archive about 20,000 boxes of DA felony litigation files."

Archiving old files is a great start, but it would create even greater efficiencies to follow Tarrant County's lead and put CURRENT case files online on a secure system. Tarrant County has an "open file" policy, so the entire DA's file is scanned in and the defense counsel (with the proper password) has immediate, full access, reducing communication delays and time wasted by attorneys (who aren't the least expensive employees on the payroll, after all) haggling over who gets access to what information.

In Tarrant, the ADA and the defense counsel both have access to the exact same information about the investigation pretty much at the same time - a fact that makes the whole process run a lot more quickly and smoothly. In Tarrant, according to the local criminal defense lawyers association:

To access criminal case files of the Tarrant County Criminal District Attorney over the Internet, defense attorneys may order the TCCDLA ECFS ACCESS DEVIC, "TEA Device" which allows them access to Tarrant County's Integrated Justice System Online. You must either be a member of TCCDLA or purchase a support contract in order to purchase the TEA Device.

In El Paso, too, DA Jaime Esparza recently told a conference at the Task Force on Indigent Defense, that the DA's Information Management System (DIMS) allowed defense counsel to get access to case files within 24 hours and facilitated more routine cases getting disposed of within three days or less, reducing jail costs, overcrowding, liability, relieving court dockets, and even freeing up space in the jail that's now leased out to house federal inmates and makes extra money.

Harris County already has a cutting edge information management system (El Paso's was modeled in part after Harris County) where prosecutors rapidly evaluate cases. (See excellent bloggerly descriptions of Harris County's system here and here, and a related article from Courts Today.) It shouldn't be a stretch for them to take the next step, following Tarrant's lead, to enact an open file policy and give defense counsel complete online access to the complete case file (with appropriate security - e.g., encrypted and password protected, etc.). Everyone who uses the system in Tarrant County raves about it.

There's no real downside and many benefits for prosecutors to give defense counsel full access to their case files, so why not systematize the practice? Especially now that we know full disclosure up front can help prevent accidentally convicting an innocent person. It can also prevent inadvertently violating Brady requirements to hand over exculpatory evidence if it turns out seemingly inconsequential data later becomes probative.

If the Harris County District has a lot of asset forfeiture money laying around to fund computerization of old records, the next DA, whoever it turns out to be, should definitely invest in a computerized open-file system to make day-to-day records processing go more seemlessly and prevent lawyers from even appearing to play hide-the-ball with exculpatory evidence.

Ex-Im Bank chief who oversaw cartel loans now chief investment officer for bailout funds

Let's turn out attention to a national subject that's slightly off topic for Grits (and perhaps a little above my pay grade), but that I've thought deserved attention ever since I noticed a particularly odd connection regarding the much-ballyhooed Wall Street bailout and a story I've written about on Grits. According to Forbes:

The U.S. Treasury on Wednesday named U.S. Export-Import Bank chairman James Lambright as the interim chief investment officer of the Treasury's new Troubled Asset Relief Program, reversing a previous appointment.

The Ex-Im Bank came onto my radar screen last year after a Dallas TV news reporter discovered they were giving loans to Mexican cartel subsidiaries which then defaulted. I haven't paid much attention to multinational banking institutions since I was an economics major in college, but when most of the agency's defaulted loans in one country went to drug-cartel affiliated figures, you don't need an accounting degree to know something's wrong. According to WFAA-TV:

The federally funded Ex-Im Bank apparently backed loans to people affiliated with both cartels and the Mexican drug trade.

Under the Freedom of Information Act, News 8 asked for all documentation related to defaulted small business loans made to Mexico from 2002 to 2005. Although there were nearly 200 bad loans, so far, information on only 34 cases has been turned over.

But the bank did give a list of the defaulted loans and the names and addresses of the people who got them in Mexico.

"They have drug connections, which is very disheartening to think that the U.S. government is lending money to documented traffickers in the drug trade that are tied into the cartels in Mexico," said Phil Jordan, the former head of the El Paso Intelligence Center for the DEA and Border Patrol in El Paso.

Jordan ran background checks of the borrowers with two federal sources and found borrowers from Juarez and Sinaloa with criminal ties to money laundering, organized crime or drugs in Mexico. Jordan said he was surprised to find that the Ex-Im Bank didn't do similar checks before guaranteeing the loans.

Reporter Byron Harris was able to show that "Out of $243 million in the medium-sized loans the Ex-Im Bank backed in Mexico from 2003 through 2005, less than $25 million was ever repaid."

That's bad enough, but what disturbs me most (given that this is a guy we're putting in charge of handing out $700 billion in borrowed money like lollipops on Wall Street) is that the Ex-Im Bank under Lambright responded to the scandal by minimizing it, making few substantive changes, and issuing voluntary due-diligence suggestions instead of requiring more rigorous background checks. As I wrote when the guidelines came out:

the due diligence non-checklist itself doesn't go far enough: Suppliers and key financiers for loan applicants should also be checked in those databases before making loans to be sure that Ex-Im Bank money isn't falling into the hands of organized crime. It's pretty easy to form a company whose top officers come up clean, but who do business with much shadier characters if the "due diligence" delved just a little deeper.

Only one arrest has been made regarding shady Ex-Im Bank loans to Mexico, and it was a San Antonio businessman, not a loan recipient in Mexico or a bank employee who gave out hundreds of millions of taxpayer money to a bunch of drug cartel thugs.

For whatever reason (perhaps the presidential campaign had captured all their attention), the MSM never picked up Harris' story more widely, and Mr. Lambright's weak-kneed reaction to the scandal turned out to be enough to placate Congress and the media, or at least deflect its attention, for a time.

Lambright may be just the right guy for the job, but now that we've elevated the Ex-Im Bank chief to lead the bailout effort, I think it's time to revisit my suggestion last February that:

I'd like to see the Government Accounting Office or some independent auditor follow up on WFAA's revelations about Ex-Im Bank loans to drug cartels. Their self policing obviously is insufficient, and my guess is that Mr. Harris has only uncovered the tip of the iceberg.

Lambright's permissive approach, especially his issuance of voluntary guidelines to prevent loans to transnational crime gangs, doesn't give me a lot of confidence that the money allocated for the Wall Street bailout will be effectively policed.

See prior, related Grits posts:

• Who are the big American drug bosses? How about the Ex-Im Bank?
• Voluntary guidelines don't ensure Ex-Im Bank won't give more loans to drug cartels
• New Ex-Im Bank guidelines won't prevent loans to drug cartels
• Ex-Im Bank stonewalling media on weak, new anti-corruption guidelines
• Ex-Im Bank scandal looks like tip of corruption iceberg
• First arrest made involving fraudulent Ex-Im Bank loans

No final word yet on TDCJ lockdown results.

I've not seen a recent update on results from the TDCJ statewide prison lockdown searching for cell phones and other contraband since this report from AP nearly a week ago declaring:

Illegal cellphones were the target in a shakedown of the huge Texas prison system, but the first full week of the inch-by-inch inspections has yielded an assortment of contraband, prison officials said Monday.

More than 120 prohibited phones and phone components have been seized, they reported. That includes 63 phones, 56 chargers and five SIM cards that swap information among phones.

But officers also turned up 61 weapons, 52 tobacco stashes and 14 stashes of money — all prohibited for the approximately 155,000 inmates in the state’s 111 prisons.

During lockdowns, inmates are confined to their cells and may not have visitors.

Inspections at about 15 units are complete, and the lockdowns there have been relaxed, a prison spokeswoman said.

Particularly startling was the number of weapons found, which was many times the number reported seized annually in recent years (see this Grits post). Only ten prohibited weapons were found in 2007, and only 8 in all of 2008 before the latest lockdown and search.

Since 2003 it's been a felony to bring contraband onto Texas prison units, but the problem worsened since then and nearly everyone agrees most of contraband - especially cell phones getting into hard to reach places like death row - comes mostly from inmates bribing corrupt guards.

Six years later, the main solutions proposed have nothing to do with boosting penalties (since we've already done that), instead focusing on limits on what guards can bring to the unit, pat downs going in and out of each shift, pay hikes for guards, and expanded (legal, monitored) phone access for prisoners. They're also installing metal detectors (before now only 22 units had them), but they had metal detectors at the Polunsky unit and they've found 22 cell phones in that unit on death row in 2008 alone!

Meanwhile, more cell phones have been found this year at the Stiles unit in Beaumont than any other facility, and now that unit has generated what so far is the state's highest profile conviction
- a former guard was sentenced to four years for contraband smuggling. The Inspector General from TDCJ recently testified to a state senate committee that it was difficult to secure convictions against TDCJ staff, so one wonders if recent media coverage about cell phones on death row has changed to some degree how people feel about such misconduct?

Finally, from Cat's Meow, we get a little TDCJ lockdown humor:

RELATED: Texas Prison Bidness has a post on contraband smuggling at a private prison unit in Mineral Wells and lets us know the Senate Criminal Justice Commitee will hold a hearing on interim charges related private prisons on Nov. 13.

DNA Forensics Roundup

Several recent DNA-related items deserved Grits readers attention.

Do DNA exonerations merit death penalty moratorium?
Twenty men exonerated by DNA evidence all gathered in Austin on Friday to call for a moratorium on Texas' death penalty in light of the state's recent slew of long-time inmates proven innocent by applying modern forensics to old evidence, including most recently the exoneration by DNA of Michael Blair who'd been sitting on Texas' death row. Reported the Austin Statesman:

The exonerated men, members of Witness to Innocence, a Philadelphia-based organization that is holding its annual meeting in Austin, want Texas to create a commission to search for wrongful convictions. And while the commission works, they want a moratorium on executions in the busiest death penalty state — with 419 executions since 1982 and six more scheduled this month. ...

Sam Millsap, former Bexar County district attorney, said he slowly came to believe that the death penalty must be abolished because of the growing number of exonerated death row inmates — 130 since 1973, including nine in Texas, according to the Death Penalty Information Center. "I am no longer convinced that our courts will in fact guarantee the protection of the innocent," Millsap said.

Millsap said he has taken responsibility for the 1993 execution of Ruben Cantu , a San Antonio man who Millsap said might have been innocent of a 1984 murder. The conviction was based on one eyewitness who later recanted, and no physical evidence tied Cantu to the crime, he said. "My decision to seek the death penalty was a mistake."

The most recent Texas exoneration was in September , when a Collin County court dismissed the capital murder case against Michael Blair , sentenced to die for the 1993 murder of 7-year-old Ashley Estell.

However, the reporter (perhaps rightly) warned the exonerees:

any bill to halt executions stands no chance of passing the Texas Legislature, [Austin state Representative Elliott] Naishtat said. Capital punishment has substantial support in Texas. The 2007 Texas Crime Poll by Sam Houston State University found 74 percent of Texans support the death penalty. And 66 percent said they were confident that innocent people are protected from execution.

Research underlying DNA forensics began in Houston
The Houston Chronicle published a story commemorating the 20th anniversary of a Harris County case that launched the international boom in the use of DNA in forensic science and interviewing Dr. Tom Caskey, whose patents on the early technology still fund research positions at the Baylor College of Medicine:

"Don't ever say crime doesn't pay. Crime does pay," quipped Caskey, who now directs the Brown Foundation Institute of Molecular Medicine for the Prevention of Human Diseases, a part of the University of Texas Health Science Center at Houston.

Caskey's early work on a Houston homicide case became the foundation for today's national network of criminal DNA sampling, reported the Chronicle's Eric Berger:

Caskey's primary scientific interest at the time involved the identification of genes linked to human disease. But, during the course of his research, he identified short segments of DNA — called short tandem repeats, or STRs — that vary widely from person to person.

His lab developed an STR identification technique that soon became the gold standard for criminal cases.

The method underlies the U.S. Combined DNA Index System, or CODIS, which contains DNA information on more than 6 million offenders. The system also forms the basis of Interpol's criminal database and that of most governments.

A constitutional right to DNA testing?

The US Supreme Court will soon decide whether a federal right exists to have DNA evidence tested that could prove a long-ago convicted defendant's innocence, even if he confessed to the crime:

William Osborne was accused of raping a prostitute at gunpoint, beating her with an ax handle and leaving her for dead in the snow. His lawyer declined a DNA test of the evidence, thinking that it would confirm his guilt.

Osborne was convicted, spent more than a decade in prison and gave a detailed confession to a parole board. But after recanting that confession, the Alaska man won a federal lawsuit seeking new DNA tests that he now says can clear him, a judgment that was affirmed by the U.S. Court of Appeals for the 9th Circuit. It is the first time an appellate court has ruled that an inmate has a federal constitutional right to such testing.

Now, the Supreme Court is being asked to evaluate that ruling in a case that pits the administration of Alaska Gov. Sarah Palin, the Republican vice presidential nominee, against a Republican-appointed judge who accuses her state attorney general of being "obstinate" in blocking Osborne from getting to test the evidence used to convict him. The high court debated Alaska's request to take the case in a private conference on Friday and could announce its decision as early as today.

Touch DNA evidence could overwhelm crime labs
Finally, if you're not yet familiar with the concept of "touch DNA," be sure to check out this piece from the back pages of Scientific American which answers the question:

So what’s touch DNA?

The touch DNA method—named for the fact that it analyzes skin cells left behind when assailants touch victims, weapons or something else at a crime scene—has been around for the last five years. In fact, the prosecutor in the Ramsey case, Boulder County District Attorney Mary Lacy, learned about touch DNA when she attended a course here at the West Virginia University Forensic Science Initiative in the summer of 2007.

The technique has dramatically increased the number of items of evidence that can be used for DNA detection. In the 1980s, in order to perform DNA analysis on a crime scene or victim, forensic investigators needed a blood or semen stain about the size of a quarter. The sample size fell in the 1990s to the size of a dime and then became: “If you can see it, you can analyze it.”

Touch DNA doesn’t require you to see anything, or any blood or semen at all. It only requires seven or eight cells from the outermost layer of our skin.

Here’s how it works: Investigators recover cells from the scene, then use a process called polymerase chain reaction (PCR) to make lots of copies of the genes. Next, scientists mix in fluorescent compounds that attach themselves to 13 specific locations on the DNA and give a highly specific genetic portrait of that person. The whole process takes a few days, and forensic labs are often backed up analyzing data from other cases.

These cautionary asides about touch DNA, backed up labs and evidence retention problems echo concerns voiced recently to the Court of Criminal Appeals "Criminal Justice Integrity Unit that:

The advent of "touch DNA" ... threatened to overwhelm agencies' storage capacity. Potentially lots of new items could be stored for touch-DNA testing, even though labs already have tremendous backlogs. That means long lag times during which the evidence must be securely stored despite limited space.

Texas' DNA labs right now are backed up and understaffed, but the trend will be for their caseloads to dramatically expand in the near term as these techniques become more widely used (especially considering the range of possible uses to which it could be subjected). For these reasons, ironically, demand for DNA lab services will inevitably increase regardless of whether crime rates go up or down.

Forensic science errors and the introduction of junk science as evidence are responsible for up to a quarter of false convictions among Texas DNA exonerees. The focus on DNA forensics in Texas has been to bring existing labs up to snuff quality-wise, but nobody's planning pro-actively, to my knowledge, how the state will make the labs independent, much less eliminate current backlogs, or meet the inevitable, expanded future demand for forensic capacity.

The advent of touch DNA is an amazing and wonderful thing evidence-wise, but it exacerbates an already problematic situation with regard to lab backlogs and DNA-related forensic errors.

Californians bypass their Legislature on sentencing policy

I received an email over the weekend from a friend in California asking my opinion about Proposition 5, a ballot initiative focused on drug treatment and prison diversion that could reduce the Golden State's inmate population by as much as 10%. While I agreed with her that the initiative and referendum process isn't a great way to pass laws and has caused California a lot of problems, I told her "I'd likely vote for it if I were there."

Regular readers know California faces an very immediate prison overcrowding crisis made even more pressing by an imminent federal contempt order for failing to build new prison hospitals. And I was impressed by recent comments from a former San Quentin warden that Prop 5 "may well be California's last chance to bring about a solution to the many, intertwined problems in our criminal justice system that cause overcrowding."

However, the truth is I really dislike the idea of statewide initiative and referenda, particularly on criminal justice topics which require more nuance for good statute-writing than you get from these millionaire funded ballot initiatives. Indeed, ever "tuffer" referenda pushed by dot.com dabblers and grandstanding pols are largely what got California into its prison overcrowding mess. To drive home that point, two competing initiatives on the same ballot, Prop 6 and Prop 9 would boost sentence lengths for certain crimes, reduce opportunities for parole and expand California's prison population. Here's how the New York Times described the three proposals:

One initiative, Proposition 5, would increase financing for drug rehabilitation programs and reduce penalties for some drug- and addiction-related crimes. Another, Proposition 6, would increase financing for law enforcement and increase penalties for drug- and gang-related offenses. And a third, Proposition 9, would expand victims’ roles in criminal and parole proceedings, prioritize restitution payments to victims and reduce the frequency of parole hearings for offenders.

I can't help but wish the California Legislature hadn't made such ballot initiatives necessary by abdicating its responsibility to manage the state's prison problem. We're lucky in Texas our Legislature has embraced the idea of treatment funding to avoid new prison building which, as the former San Quentin warden says, may be the only real option to stem the swelling tide of prisoners and red ink in the state corrections budget. In California, by contrast, partisan gridlock routinely grinds reforms to a halt.

For those interested in learning more about California's Prop 5, which has drawn strident opposition from the prison guards' union and high-profile pols, check out these op eds pro and con from the Los Angeles Times. A supporter writes:

Whatever else might be said about Proposition 5, it would be difficult to dispute that it would reduce prison overcrowding and save taxpayer money. The nonpartisan Legislative Analyst's Office (LAO) estimates that the measure would reduce the prison population by more than 18,000 inmates, or a bit more than 10% of the current population of 171,000. In addition, the LAO calculates that under Proposition 5, there will be 22,000 fewer parolees.

As a result, California taxpayers would save at least $2.5 billion, according to the LAO. To put that number in perspective, $2.5 billion would be enough to pay the salaries of 37,500 elementary school teachers or healthcare for 2 million California children.

This prison population reduction is sorely needed. California currently has too many nonviolent offenders behind bars, and too many nonviolent parolees are sent back to state prison for technical violations of parole -- very often a minor drug violation such as a positive urinalysis. With our prison system at 60,000-plus inmates over capacity, Proposition 5 will help ensure that scarce incarceration space is used for serious and violent offenders.

The ballooning prison population is quickly moving beyond a run-of-the-mill policy problem and becoming a true crisis for our state. Here is how serious the situation is: Just this Monday, a federal district court judge ordered that state officials cough up $250 million for prisoner healthcare by Nov. 5 or risk being held in contempt of court with possible fines of up to $3 million a day.

Frankly, given the dire nature of our overcrowding problem and the difficult choices the state faces, Proposition 5 might be worth considering even if the reduced prison population and taxpayer savings came with costs in the form of a slight decrease in effectiveness. But they don't. Proposition 5 would achieve its inmate reductions and tax savings without sacrificing efficiency. Indeed, Proposition 5 would improve our efforts to combat addiction and related crimes by offering a public-health solution (drug treatment) to a public-health problem (drug abuse).

Even opponents agree Prop 5 would reduce California's prison population. Los Angeles County DA Steve Cooley writes in a counter point:

There is no doubt that Proposition 5 would reduce prison overcrowding because, if approved, tens of thousands of criminals who truly belong behind bars would avoid incarceration. They would simply have to claim they have or appear to have a drug dependency or addiction to be back on the streets. ...

Proposition 5 would greatly expand the pool of felony criminals eligible for treatment in lieu of incarceration. It would eliminate both the threat of incarceration as a deterrent to criminal activity and the reality of incarceration for those who most deserve it.

So Californians basically must decide if they think people who commit addiction-related crimes "truly belong behind bars," to use the prosecutor's framing, or if the "threat of incarceration" provides a "deterrent to criminal activity" for low-level drug crimes. Those are worthy questions for debate.

In many ways, the proposal is also a referendum on whether the public thinks a prior, less ambitious initiative mandating drug courts and treatment instead of incarceration, Prop 36, was a boon or a bane: Prop 5 expands on the same programs and concepts.

Meanwhile, to the north in Oregon, voters tomorrow will consider two ballot initiatives of their own, both of which would boost criminal penalties and obligate the state to build new prisons. (That's more typical of initiative-generated crime policy than Prop 5.)

These west coast plebiscites are among the downballot races I'll be watching tomorrow night as the 2008 election season finally, mercifully comes to a close.

RELATED: Via Doc Berman, see also this NY Times piece on San Francisco's Prop K, which would forbid expending city resources to enforce prostitution statutes, effectively decriminalizing the oldest profession in the city by the bay:

Supporters of the measure say it is a long-overdue correction of a criminal approach toward prostitutes, which neither rehabilitates nor helps them, and often ignores their complaints of abuse.

“Basically, if you feel that you’re a criminal, it can be used against you,” said Carol Leigh, who says she has worked as a prostitute for 25 years and now works as an advocate for those who trade sex for money. “It’s a really serious situation, and ending this criminalization is the only solution I see to protect these other women working now.”

The language in Proposition K is far-reaching. It would forbid the city police from using any resources to investigate or prosecute people who engage in prostitution. It would also bar financing for a “first offender” program for prostitutes and their clients or for mandatory “re-education programs.”

Economy may doom Smith County's jail building aspirations

An AP story published in the Houston Chronicle says the economy may doom Smith County's jail bond proposal on Tuesday's ballot:

The most contentious local bond election Tuesday in Texas might be in Smith County, where voters in the ultraconservative heart of East Texas could reject a jail expansion proposal for the fourth time in three years. Each have been sound defeats that came in better times for taxpayers.

The latest pitch is a $59.6 million, 694-bed addition offered in a widening national financial crisis. Like other local ballot measures Texas, the plan could be sunk by economic fears.

"They're whole-package conservatives here," said state District Judge Cynthia Kent, who leads the opposition to a new Smith County jail. "They're law and order, but they're also conservative about giving us more of their money."

Financially squeezed taxpayers elsewhere may feel the same. More than 50 school districts in Texas are asking voters to approve tax hikes Tuesday, hoping to fare better than at least two dozen districts that have already been rejected by voters in tax rollback elections.

In Dallas County, a $747 million package to build a new Parkland Memorial Hospital is among the largest bond proposals in the state. Without any organized opposition, the crumbling economic climate may be the biggest hurdle.

"There's so much bad economic news nationally," said Bernard Weinstein, director of the Center for Economic Development and Research at the University of North Texas. "Consumer confidence is falling off a cliff. That could affect voter outcomes."

It's a possibility even jail supporters in Smith County concede.

Burglarize a home in Tyler and jurors will "sock it to you here," longtime Smith County Sheriff J.B. Smith reminded. But when it comes to more jail space to house suspects, three proposals since 2006 have failed with 63, 86 and 68 percent of the vote.

Five nights a week, jail vans leave Tyler to deliver inmates to neighboring counties or haul them back for court appearances. Smith said $12 million has been spent since 2004 leasing outside beds; 151 inmates from Smith County were locked up elsewhere in East Texas as of Monday.

Sheriff Smith goes on to claim that "Even when all the beds aren't full, ... 10 to 15 percent are needed to ensure, say, DWI offenders aren't locked up with suspected murderers." That sounds a little high to me; I've heard it said 5-7% of beds needed to stay empty for that purpose, not 10-15%. It sounds to me like he's overstating the number of empty beds he must maintain just like he overstated the threat of federal litigation forcing the county to construct a new jail: Because Judge Cynthia Kent's jail diversion program has worked so well that currently the county has space in the jail but still chooses to pay for outside beds.

Crunch the numbers for yourself. As of October 1, Smith County's jail had a capacity of 755 but only housed 675 people. Of those, 47 weren't actually county inmates but were being held on contract for some other entity (probably the feds) for a fee. So on October 1, there were 628 county inmates in the jail, and another 107 housed in other counties. That means Smith County's current "demand" is 735 total county inmates and it has a jail designed for 755.

Just a few more tweaks and funding for new diversion programs would easily reduce that number to something more manageable. El Paso, for example, reduced the time defendants wait in jail pretrial by 18 days by introducing a direct filing system. Tyler's police department and the Sheriff have refused to let officers use new authority given by the Legislature to give summons instead of arresting petty misdemeanants. And Judge Kent has proposed a litany of jail diversion proposals, of which the commissioners court only chose to back one.

That program's success is what's lowered Smith County's numbers to where they are, and if they'd enact the veteran judge's other ideas, I've little doubt the overcrowding problems would be completely alleviated for the time being. If a new jail were to pass, I think that'd be the last we'd hear about alternatives from the commissioners court, so I welcome the prediction that economic bad times might spook voters into rejecting the jail, again.

Perhaps after voters reject the Smith County Commissioners fourth jail proposal in three years, they'll finally get serious about incarceration alternatives instead of merely dabbling with the idea while they plot to double their jail capacity.

RELATED: See recent coverage from the Tyler Morning Telegraph:

• Public to decide fate of $59.6 million jail proposal
• Bond endorsed by Master Plan Resource Committee
• Judge Cynthia Kent: No New Jail
• Letter from proponents: Bonds worthy of support
• Jail bond opposition group reports higher contributions than pro-jail group
• Tyler Chamber of Commerce endorses $59.6 million jail bond plan
• Commissioners, judges, discuss courthouse plans, possible bond
• New Jail the Answer?
  

Executed man claimed innocence till the end

To update a prior post, after a stay in the case for last minute DNA testing which proved inconclusive, Gregory Wright became the 14th Texan executed in 2008. (Six more are scheduled between now and the end of November.) Today would have been Wright's 43rd birthday.

When you read the final statements of most executed offenders, at least those who choose to give them, they tend to express remorse, often apologizing to victim families, or else offering comfort to friends and family they're leaving behind. Wright's final statement was noteworthy because he defiantly maintained his innocence until the end, instead insisting that an informant who testified against him really did the deed:

John Adams lied. He went to the police and told them a story. He made deals and sold stuff to keep from going to prison. I left the house, and I left him there. My only act or involvement was not telling on him. John Adams is the one that killed Donna Vick. I took a polygraph and passed. John Adams never volunteered to take one.

Wright concluded, "Before you is an innocent man. I love my family. I'll be waiting on ya'll. I'm finished talking."

The Court of Criminal Appeals denied Wright's final habeas claim because "failed to make a prima facie case of actual innocence." I'm not saying he's innocent, mind you; a jury didn't think so and I've no way to know. But his final statement was strikingly different from most, that's for sure, and at that penultimate moment, a killer typically has nothing to lose by admitting their guilt.

One wonders: When an execution takes place under those circumstances, does it still bring "closure" for those involved?

Outpatient centers better solution than jails for competency restoration

Four new pilot programs providing outpatient competency restoration services have significantly reduced the number of mentally ill inmates languishing in county jails waiting for state hospital beds to open up, according to a handout from the Department of State Health Services (pdf) distributed last week to a conference sponsored by the Texas Task Force on Indigent Defense.

This is a great idea because there's no real public safety benefit and a lot of extra expense to insisting competency restoration services be delivered in a carceral setting. For some defendants, sure, but not indiscriminately for everyone. Here's how the DSHS flyer described the new pilots:

The Outpatient Competency Restoration (OCR) pilots were launched by Department of State Health Services (DSHS) earlier this year in response to Senate Bill 867, 80th Legislature which amended Article 46B, Code of Criminal Procedure, in many respects to explicitly allow for outpatient competency restoration of defendants who have been determined by the court not to be a danger to others (see CCP, Art. 46B.072(a) ). Funding was awarded for pilot sites for OCR in selected areas where the Mental Health Authority and local judiciary have partriered together for this unique concept in competency restoration. OCR programming and curricula were modeled after successful OCR programs in other states.

Harris County was the first to do outpatient competency restoration, and now these pilots cover the other major metropolitan areas. The four sites are:

• Austin Travis County MHMR (Travis)
• Center for Health Care Services, San Antonio (Bexar)
• North'Texas Behavioral Health Authority, Dallas (Dallas)
• Tarrant County MHMR, Fort Worth (Tarrant)

These outpatient programs are not in secure settings and are suitable when the court believes the defendant won't be a danger. Jeannette Kinard, head of Travis County's Mental Health Public Defender unit, said the Travis County outpatient is available to both felons (except violent, "3g" offienders) and misdemeanants.

The need for these new programs arises because once a defendant is declared incompetent to stand trial, their case cannot be resolved, even if it's a petty misdemeanor, until their mental state improves. Defendants could sit in jail for months waiting for a state hospital bed, legally unable even to plead guilty to minor charges that would otherwise get them out immediately for time served.

The bulk of volume of court commitments to state hospitals comes from these larger jurisdictions, so they're a great place to start, but really there needs to be outpatient competency restoration provided through MHMR Centers statewide. Managing a mentally ill inmate whose case cannot be disposed can be an even greater problem in smaller, rural jurisdictions whose jail and staff are likely not trained or equipped to handle them. For that matter, defendants frequently "de-compensate" in jail after they've been in the state hospital, which requires even more time before a court can dispose of the case. That's a lot less likely in a supervised outpatient program because they don't have the dramatic shift from the hospital to the jail cell and can schedule the court date when the defendant is stable.

Before the 80th Legislature allowed the outpatient option, the only way to get the needed mental health treatment for competency restoration was to send defendants to one of Texas' state mental hospitals. But Texas quit building new hospitals and since 2003 has underinvested in the ones we have as well as in indigent mental health care generally.

By 2006, the waiting list was many months long and defendants had to wait in jail the whole time, even for petty misdemeanors. There was literally no legal option for them, so Advocacy Inc.'s Beth Mitchell sued on behalf of a man who was beaten by other inmates while waiting in jail for a state hospital bed to open up. It was that litigation more than anything that spurred DSHS' new strategy.

The Lege authorized outpatient competency restoration in 2007, but did not agree to pay for new state hospital beds, making outpatient competency restoration the only remaining option to what was clearly an untenable situation. No funding was designated for the task, however, and counties were slow to step up. Only Harris County MHMR - to their great credit - took it upon themselves to immediately begin providing competency restoration services. Mitchell told the indigent defense conference they're already seeing great results, with recidivism declining for those receiving outpatient competency restoration compared to those treated in jail or a state hospital.

Given that history, DSHS deserves kudos for creating these new programs to fill the gap, helping solve their own problem (state hospital waiting lists) and the jails' at the same time. According to their handout, the pilots will divert 427 people from state hospital beds in 2009 now that they're all up and running at full capacity. That's a good start, but I'll bet if they were funded for it they could handle more volume - certainly some people need full-blown hospitalization, but probably the majority do not.

The waiting list to get incompetent defendants into Austin State Hospital was not long ago many months long, but thanks to the outpatient diversion, the wait is down to 7-10 days, according to a Sergeant from the Travis County Sheriff's Crisis Intervention Team. Violent offenders who require competency restoration must go to the state facility in Vernon, he said, for which the waiting list is currently 20-23 days - still too long, perhaps, but a far cry from the months-long waits that were routine just a couple of years ago. (For those offenders, I still think in the long run the state will still have to pay for more beds.)

In the meantime, I'd like to see the 81st Legislature take the "pilot" label off these competency restoration programs and fund their expansion in other jurisdictions. DSHS, with a little added motivation from Advocacy Inc.'s lawsuit, has latched onto what I think is exactly the right solution to a lingering problem that's still creating headaches for a lot of jails around the state.

See the DSHS flyer (pdf) and prior, related Grits posts:

• Lawsuit moves forward to require quicker competency restoration
  
• Legislature's underspending on competency restoration beds creates havoc
  
• Competency restoration legislation moving, funding for new forensic beds in jeopardy
  
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
  
• Lawsuit could force Texas to treat mentally incompetent defendants
  
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails
• When I was sick, did you imprison me?
  
• MH funding not enough, but better than a sharp stick in the eye