Tuesday, December 30, 2008

Texas Innocence Project seeks funds after Madoff debacle

My employers at the Innocence Project of Texas (IPOT), a group dedicated to freeing innocent people from prison, took a major hit recently after the closure of the New-York based JEHT Foundation, which was a victim of the infamous Bernard Madoff ponzi scheme scandal. This unforeseen financial blow caused the Austin Statesman's editorial page to wonder, "What's the penalty for stealing hope?" A JEHT Foundation grant made up more than half of IPOT's annual funding.

Today IPOT Executive Director Natalie Roetzel sent out an email soliciting donations. Here's the text:
The Innocence Project of Texas Needs Your Help

The Innocence Project of Texas dedicates its time and money to assist those who have become voiceless in the criminal justice system, to those who have been wrongfully convicted of crimes in the State of Texas. In order to fund our Project, we actively seek out the support of foundations and donors, but we have learned over the past few weeks that we are not immune from Wall Street scandal. Most recently, our organization was informed that the JEHT Foundation, a major funder of IPOT's work in Dallas County, is closing its doors after being hit hard by Bernard Madoff's alleged ponzi scheme. In the wake of this tragedy that is affecting numerous non-profit organizations around the country, we are reaching out to you for contributions to our cause.

The JEHT Foundation has a legacy of funding organizations and government entities committed to achieving justice and preserving equality and human rights. In June of this year, the Foundation pledged more than $450,000 to fund DNA tests and IPOT expenses related to our work on Dallas County cases. Today, that funding is in jeopardy as the JEHT Foundation was forced to close its doors and inform grant recipients that no additional payments will be made on previously awarded grants. Although the loss of a portion of the IPOT designated JEHT funds will not constitute an end to our organization, it is a definite hurdle that we are committed to overcoming.

If you would like to assist the Innocence Project of Texas in our struggle to raise much needed funds for case investigations, DNA testing, and operational expenses, please consider making a donation today. By donating to the Innocence Project of Texas, you can play a part in making sure that Texas's wrongfully convicted men and women receive the justice they deserve.

Donate online today or mail your donation to the address below. We look forward to hearing from you soon.

Innocence Project of Texas
1511 Texas Avenue
Lubbock, Texas 79401
Please help if you're able, and the more zeroes you can tack onto the end of the contribution, the better.

MORE: See IPOT's specific wish list and a discussion of legislative funding for innocence work from the Fort Worth Star Telegram.

Whither justice reforms in a post-Craddick House?

I've been taking an "I'll believe it when I see it" approach to claims by "insurgents" in the Texas House of Representatives that they had enough votes to definitively oust Speaker Tom Craddick. But combined with seemingly every other GOP House member having announced their Speaker candidacy, the news yesterday that House Democrats released 64 anti-Craddick signatures (pdf) makes me think that, even though he's still the biggest, meanest dog in the fight, at the end of the day the pack will probably take him down.

There are 74 Democrats in the House, so 64 anti-Craddick signatures means 10 didn't sign, and predictably they're all "Craddick Ds," i.e., Democrats who backed Craddick for Speaker in 2007 and were rewarded with plumb committee assignments.

The list of non-signers includes several Democrats who hold key leadership positions on criminal justice topics, most prominently: Harold Dutton (Juvenile Justice and Family Issues Chair), Aaron Peña (Criminal Jurisprudence Chair) and Sylvester Turner (Chair of the Criminal Justice subcommittee on House Appropriations - himself a Speaker candidate). Non-signers also included my own state rep, Dawnna Dukes, and Appropriations Committee Vice Chair Ryan Guillen. So if the insurgents win, it's reasonable to speculate these members could lose their leadership spots, though there's also still a lot of horse trading yet to be done.

Perhaps the biggest loss if House leadership changed hands might be Corrections Committee Chairman Jerry Madden, a Republican whose extraordinary performance in that role IMO has made him one of the stars of the House. The West Point graduate and former engineer has served the state admirably and is well respected by nearly everyone on both sides of the aisle, so I'm hopeful that, if a post-Craddick coalition emerges, he'll get an opportunity to join it so he can hang onto that chairmanship and finish the visionary work he's begun.

Indeed, Paul Burka thinks Madden may be part of a group of swing votes - the R’s and D’s who aren’t comfortable with the current leadership of their parties and want to move on beyond Craddick" - who could wind up choosing the next Speaker.

While I was certainly critical of Tom Craddick's improper seizure of power from House members in 2007, on criminal justice reform his approach has ranged from ambivalent to modestly supportive. Both his committee appointees and the full House have passed quite a bit of important reform legislation during his tenure - much more than when Democrats controlled the lower chamber - even if Governor Perry's vetoes dulled their legacy and prevented an even more significant impact.

But for good or ill, now the die has been cast and the likelihood of a fourth Speaker term for Tom Craddick seems increasingly thin, making it quite likely that a different cast of characters could be calling the shots on key committees next year in the Texas House of Representatives.

MORE: Kuff rounds up more Speaker's race speculation.

AND MORE: Burka now believes the Speaker's race boils down to three possibilities: Dan Gattis, John Smithee or Burt Solomons.

Monday, December 29, 2008

Good chances for Texas needle exchange bill next year, but assume nothing

While I agree Texas has the best chance in my lifetime to pass needle exchange legislation next spring, perhaps the San Antonio Express News editorial board was counting unhatched chickens when they opined that, with long-time opponent Rep. Diane Delisi retired, the bill will now finally, easily pass.

Former Rep. Dianne Delisi, a Republican from Temple, opposed the bill in the House ... But rather than simply voting against it, she abused her position as chairwoman of the Public Health Committee by refusing to allow it to come to a vote.

After 18 years in the House, Delisi resigned her seat in July. The same bipartisan group of lawmakers who pushed the legislation two years ago — Sen. Robert Deuell, R-Greenville, Sen. Leticia Van de Putte, D-San Antonio, and Rep. Ruth Jones McClendon, D-San Antonio — plans to reintroduce similar measures in the upcoming session.

There can be little doubt that given the opportunity for floor votes in the Senate and House, Texas will join the 49 other states in making needle exchange programs legal.

I'd like to think that's true, having been a more or less active proponent of the idea since Glen Maxey used to carry the legislation back in the '90s. Certainly needle exchange legislation enters the 81st session with a ton of good vibes and positive momentum. After all, 22 senators have already gone on record supporting it. And a majority of House members voted for a pilot program in Bexar County with no impact on anyone's re-election.

But Texas' legislative process is designed to kill bills, not to pass them, and there's many a slip twixt the cup and the lip. Who knows, for example, who will replace Delisi as Chair of Public Health, which is of course a function of who wins the now-wide open Speakers race?

For the record, I dispute the charge that Delisi "abused her position as chairwoman of the Public Health Committee by refusing to allow [the bill] to come to a vote." While I disagreed with her decision because I knew we had enough votes on Public Health to pass the bill, in truth it's the committee chair's job to make those decisions. That was her prerogative under the rules and not an "abuse" of authority just because I or the SA Express News editorial writers don't like it.

I'm optimistic needle exchange legislation can finally pass in 2009, but that doesn't make it a slam dunk. In fact, it means it's time for supporters to bear down extra hard to finally push this legislation over the hump.

See the prefiled legislation: SB 188 by Deuell and Van de Putte.

Shoplifting up as economy tanks

Having undertaken to identify criminal justice implications for the current economic downturn, I was interested to see this item from the New York Times about a surge in shoplifting ("As economy dips, arrests for shoplifting soar," Dec. 22):

Police departments across the country say that shoplifting arrests are 10 percent to 20 percent higher this year than last. The problem is probably even greater than arrest recordsindicate since shoplifters are often banned from stores rather than arrested.

Much of the increase has come from first-time offenders like Mr. Johnson making rash decisions in a pinch, the authorities say. But the ease with which stolen goods can be sold on the Internet has meant a bigger role for organized crime rings, which also engage in receipt fraud, fake price tagging and gift card schemes, the police and security experts say.

And as temptation has grown for potential thieves, so too has stores’ vulnerability.

“More people are desperate economically, retailers are operating with leaner staffs and police forces are cutting back or being told to deprioritize shoplifting calls,” said Paul Jones, the vice president of asset protection for the Retail Industry Leaders Association.

The problem, he said, could be particularly acute this December, “the month of the year when shoplifting always goes way up.”

Two of the largest retail associations say that more than 80 percent of their members are reporting sharp increases in shoplifting, according to surveys conducted in the last two months.

Compounding the problem, stores are more reluctant to stop suspicious customers because they fear scaring away much-needed business. And retailers are increasingly trying to save money by hiring seasonal workers who, security experts say, are themselves more likely to commit fraud or theft and are less practiced at catching shoplifters than full-time employees are.

That last paragraph in particular strikes me as an interesting twist; I hadn't thought about the use of temp workers increasing the risk of theft, which adds another layer of cost and complications to businesses forced to downsize. That cheaper, seasonal employee may not seem so cheap once they clear out the cash register on their way out.

These data are from retailers associations, not official crime statistics, so we'll have to wait at least a year to see if the increases bear out in the official numbers. Certainly, though, it makes sense that low-level crimes of opportunity might increase when so many more people are feeling the economic pinch.

Hat tip to CrimProf Blog.

RELATED: The Washington Post says that whether or not property crime is statistically increasing, anxiety about property crime is going up.

MORE: Jack Shafer at Slate calls this story the "Bogus Trend of the Week." It'll be interesting down the line to compare this period's official theft statistics with media hype about the economic crisis boosting property crime.

Diversion programs worked, but who can measure how well?

This blog strongly supported initiatives by state Sen. John Whitmire and Rep. Jerry Madden in 2005 and 2007 expanding Texas' treatment and prison diversion programs by a whopping $200 million. Since then, events have unquestionably demonstrated the prescience of those landmark diversion programs, which eliminated the need for new prison building in the short term even though they aren't yet 100% rolled out.

Texans - not to mention Sen. Whitmire and Rep. Madden who shepherded the plan through the Lege - should be proud of that accomplishment, which inarguably saved the state billions of dollars.

It wasn't long ago that official predictions foresaw Texas needing 17,000 prison beds by the end of the next biennium. An additional 17,000 inmates would require issuing bonds to spend billions for several new prisons, plus about $612 million per biennium (at $18K per inmate per year) for staff costs and upkeep. But before the crisis ever materialized, Madden and Whitmire indefinitely forestalled those looming costs by convincing the Lege to invest $200 million per biennium mostly in probation and treatment programs.

I've little doubt diversion programs "worked" because of the dog that didn't bark - Texas prisons would already be bursting at the seams if probation revocation rates hadn't declined significantly in most of the largest jurisdictions.

But if there's one regret I have about Texas' new treatment regimens, it's that the state did not, from the start, establish a mechanism to gather program data for evaluation and improvement. Don't get me wrong - I'm as much to blame as anybody since I and other advocates for diversion programs weren't raising the issue at the time. I'm not assigning blame so much as identifying a shortcoming that still can be fixed post hoc.

I was reminded of this omission before the holiday upon reading a New York Times piece decrying the shortage of "evidence-based" support for many drug treatment programs ("The Evidence Gap," Dec. 22). Reported the Times:
Every year, state and federal governments spend more than $15 billion, and insurers at least $5 billion more, on substance-abuse treatment services for some four million people. That amount may soon increase sharply: last year, Congress passed the mental health parity law, which for the first time includes addiction treatment under a federal law requiring that insurers cover mental and physical ailments at equal levels.

Many clinics across the county have waiting lists, and researchers estimate that some 20 million Americans who could benefit from treatment do not get it.

Yet very few rehabilitation programs have the evidence to show that they are effective. The resort-and-spa private clinics generally do not allow outside researchers to verify their published success rates. The publicly supported programs spend their scarce resources on patient care, not costly studies.

And the field has no standard guidelines. Each program has its own philosophy; so, for that matter, do individual counselors. No one knows which approach is best for which patient, because these programs rarely if ever track clients closely after they graduate. Even Alcoholics Anonymous, the best known of all the substance-abuse programs, does not publish data on its participants’ success rate.
It's not that there aren't evidence-based programs out there, said the Times:
When practiced faithfully, evidence-based therapies give users their best chance to break a habit. Among the therapies are prescription drugs like naltrexone, for alcohol dependence, and buprenorphine, for addiction to narcotics, which studies find can help people kick their habits.

Another is called the motivational interview, a method intended to harden clients’ commitment upon entering treatment. In M.I., as it is known, the counselor, through skilled questioning, has the addict explain why he or she has a problem, and why it is important to quit, and set goals. Studies find that when clients mark their path in this way — instead of hearing the lecture from a counselor, as in many traditional programs — they stay in treatment longer.

Psychotherapy techniques in which people learn to expect and tolerate restless or low moods are also on the list. So is cognitive behavior therapy, in which addicts learn to question assumptions that reinforce their habits (like “I’ll never make friends who don’t do drugs”) and to engage their nondrug activities and creative interests.
Even programs adopted because they're "evidence based" must be rigorously re-tested on an ongoing basis to ensure they continue to be relevant and effective. That's not happening in Texas, particularly since the demise of Tony Fabelo's Criminal Justice Policy Council (victim of a line-item veto by the Governor in 2003). For example, the last outcome study measuring the effectiveness of Texas' in-prison SAFP treatment program was published in 2003.

Even "evidence-based" programs imported from other jurisdictions will require tweaking to make sure they work well in each jurisdiction's unique environment, and the only way to do that is to measure inputs and outcomes in an ongoing fashion.

If Texas is going to spend $200 million plus on prison diversion strategies, it makes a lot of cost-benefit sense to spend at least 1% of that amount on program monitoring and evaluation - not to play "gotcha" with providers who aren't doing well but to identify and promote what works and discard ineffective strategies.

BLOGVERSATION: Scott Greenfield at Simple Justice comments on the Times article.

In troubled financial times, children are the last sure-bet investment

In its message to the 81st Texas Legislature (pdf) the Children's Defense Fund smartly suggests that, in an era when few investments are reliable, investing in troubled youth to disrupt the "cradle to prison pipeline" gives a higher long-term rate of return than most other types of public spending:
From the day tens of thousands of children are born, multiple risk factors converge to suck children into the prison pipeline instead of towards educational advancement and career success. These include: pervasive poverty, inadequate health and mental health care, gaps in early childhood development, disparate educational opportunities, chronic abuse and neglect, rampant substance abuse and overburdened and ineffective juvenile justice systems.

The cost implications of such an epidemic are serious. An ounce of prevention is far more cost-effective than crisis care when children get sick or into trouble, drop out of school or suffer family breakdown.
  • The average cost of a mentoring program is $1,000 a year.
  • The annual per child cost of a high quality after-school program is $2,700.
  • The cost of providing a year of employment training for unemployed youths is $3,448.
  • The average annual per child cost of Head Start is $7,326.
  • The cost for a year of public education in Texas is $7,246 per pupil.
  • The cost of incarcerating a child in the Texas Youth Commission is $67,890 a year.
Children do not come in pieces, and our solutions to dismantling the pipeline must be comprehensive. More investment in the early years of an at-risk child’s life could provide all taxpayers enormous savings.
A Houston Chronicle editorial featuring CDF's message to the Legislature said investments in youth are a "sure thing" compared to the risky market, while pouring money into prisons, at this point, is like sinking your retirement savings into Wall Street's financial bubble after its already burst.

Once youths enter the pipeline, the cost to taxpayers shoots higher than most individual incomes.

It costs $67,890, according to the Children's Defense Fund, to incarcerate one child in the Texas Youth Commission. For one year. Now consider that a black male born in 2001 has a one in three chance of ending up in the correctional system. A Hispanic boy born that year has a one in six chance, and an Anglo boy a one in 17 chance.

Public costs for these pipeline travelers extend far beyond one year, of course. Even out of prison, they are more likely to earn less, more likely to rely on benefits, use costly emergency room care and need public housing.

The Chron singled out for particular praise CDF's suggestion to shift Texas youth prisons toward smaller, rehab oriented facilities modeled after those in Missouri, arguing that the investment would more than pay off in increased tax revenue and reduced crime down the line:

One of the most exciting [evidence based approaches] is the Missouri Juvenile Justice model. Rejecting the conventional, punitive juvenile justice approach, the state of Missouri offers youngsters counseling, family and community support, and education.

As a result, only one out of 10 released young people return to the prison system. The recidivism rate in the Texas pipeline is 50 percent.

Unfortunately, the Sunset Advisory Commission failed to endorse shifting Texas youth prisons toward a "Missouri model" approach in its staff report, but if money is available, there's still a decent chance the 81st Texas Legislature may decide to go that route. It's certainly still under discussion though legislators are fearful of the cost. By CDF's logic, perhaps they should be fearful of the costs if they fail to invest.

CDF also singles out spending on youth mental health services as an important preventive that reduces criminality, as well as literacy programs and Head Start initiatives, along with the much more ambitious and nebulous goal of "ending child poverty." FWIW, that last item sounds a bit too pie-in-the-sky for my tastes. After all, even Christ acknowledged that the poor will "always be with us," while the rest of CDF's suggestions come off as much more concrete and suitable for implementation.

Definitely check out CDF's "Message to the 81st Texas Legislature," IMO they're hitting most of the important high points regarding how the Lege should be approaching juvenile justice.

Sunday, December 28, 2008

Holiday Roundup: DA Edition

Here are several stories that deserve Grits readers attention heading into the new year, several of which involve big-city DAs:

Deserved kudos
The Dallas Morning News named Dallas County District Attorney Craig Watkins its "Texan of the Year," calling him a "transformational figure who has made a name not by securing convictions, but by clearing the way for them to be overturned."

Travis DA: Meet the new boss, same as the old boss
Let me direct readers to this Statesman profile of outgoing Travis County DA Ronnie Earle, who's been the District Attorney in this town since I was in elementary school. Enjoy the retirement, Ronnie, and if you're reading this, consider it an open invitation to you or Twila to guest blog on restorative justice topics (at least, once you're no longer The Man). And good luck to incoming DA and Earle's longtime First Assistant, Rosemary Lehmberg, who will take office when he departs. She's been running the day-to-day lawyering in Earle's office for many years, now, so it should be a smooth transition.

You're fired, again
Speaking of DAs, incoming Harris County DA Pat Lykos could have been little classier about ousting already-fired ADA Murray Newman - he of Life at the Harris County Criminal Justice Center notoriety - for writing a (mean-spirited) Christmas spoof of his new boss on his way out the door. Don't feel too bad for him, though - Murray was asking for it and maybe the experience will help him get into an oppositional mindset toward the DA's office now that he'll be facing them in court. On the plus side, Murray can now stay home on New Year's Day and watch football like a normal person. Since he'll soon be launching a new career as a defense lawyer, I'd suggest eating black eyed peas and ham for luck while the bowl games are on.

Departed Hero
Louie White, Austin's first black police captain and an avid police accountability activist after his retirement, died on Saturday at age 76 after spending the last several years struggling with poor health. He was a good man and I'll miss him.

Ugly Dallas jail death investigated
Despite enough recent improvements to earn the Sheriff's re-election, the Dallas County Jail is still bad for your health.

Column: Don't shortchange probation
The probation chief in El Paso, Stephen Enders, has an effective column in the (El Paso) Times arguing to increase statewide funding for adult probation by $71 million "just to cover the expected basic needs of community supervision in the near future." According to him, "The biggest challenge for the probation system, and not only in El Paso but throughout the state, is the need for more highly qualified supervision officers, as well as more treatment beds, drug education programs, counselors and an expanded Learning Center to help prepare offenders to take their GED."

For which he earned the distinguished Prison Librarian merit badge
The Amarillo Globe News has the story of a high school junior and Eagle Scout who spearheaded a local book drive for TDCJ's Clemens unit, gathering 2,900 books to donate with the help of area churches.

More Texan clout in Congress?
Though the GOP's Senate loss leaves Texans without many congressional leadership spots in Washington these days, it looks like Texas will gain three or four new House seats in the next Congressional reapportionment which will certainly boost the state's long-term clout. BTW, I am decidedly NOT looking forward to Texas' decennial redistricting fight in 2011.

Saturday, December 27, 2008

On the limits of the justice system as tax collector

"Texas fails to collect $1 billion in fees and fines," a headline in yesterday's Fort Worth Star-Telegram read, and while unpaid college tuition makes up most of that sum, predictably Texas' "Driver Responsibility Fee" was the main criminal justice culprit:

Public-safety and criminal-justice agencies assessed $884.7 million in fees but failed to collect $292.7 million in 2006-07. Of that, $290 million was left uncollected by the Texas Department of Public Safety.

In 2003, a state law went into affect allowing the state to assign points and apply surcharges on drivers convicted of moving violations classified as Class C misdemeanors. Under its driver responsibility program, drivers are fined annual surcharges once they get a certain number of points during a three-year period. The surcharges range from $100 (driving without a license) all the way up to $2,000 (DWI).

In 2006-07, the DPS did not collect $268 million in fees and surcharges related to its driver responsibility program. Ninety-nine cents of every dollar collected is supposed to go to the Trauma Center and the Texas General Revenue Funds, and the remaining 1 percent goes to DPS to administer the driver responsibility program.

Regular readers know that these so-called "Driver Responsibility" fees - what a truly Orwellian name! - are so high that 70% of those on whom the fines are assessed cannot pay. The result has been a legal and bureaucratic nightmare of Capital "B" Boondoggle proportions: More than 10% of adult Texans now have outstanding arrest warrants, largely as a result of unpaid fees and fines on traffic offenses.

The Lege has come to wrongly see fees added to tickets and court costs as painless cash cows. (That's also true of hospitals providing trauma care, who ironically are the most powerful lobby against reforming this wretched statute.) But since 2003, with the addition of the Driver Responsibility fee, Texas reached a tipping point where returns on that strategy began to diminish because it would cost more to collect all the fees than they generate.

When more than one in ten adult Texans are wanted by the police, mostly for fines they can't afford to pay and other penny ante BS, to me that's a sign the whole overcriminalization trend has truly reached a point of absurdity. With the economy in a downturn, negative consequences from this approach will likely only get worse in the near future.

Relatedly, the Collin County Observer brings the astonishing news that more than one third of outstanding arrest warrants in that county are for failure to pay tolls - I kid you not! Writes Bill Baumbach:

While Collin County residents go about their daily lives, most are unaware of a new crime spree that is sweeping our county. Thousands of offenses against the peace have created a new class of criminal fugitive from justice.

Warrants are piling up, they come in faster than the constables and police can hope to keep up with them. Periodic warrant roundups can only scratch the surface of the mass of arrests needed to keep up with the papers that flow in daily to our constables office.

As of yesterday, there were 12,377 of these arrest warrants waiting to be served in Collin County.

About a third of the thirty thousand plus outstanding arrest warrants in Collin County are for this one crime - "Failure to pay tolls". It has become the leading reason to be wanted by the police in Collin County.

That's right, "Failure to pay tolls". No fooling.

Baumbach clears up my own confusion about this, since I'd understood that tolls were civil fines, not crimnal violations:

I remember when the NTTA first proposed the automated toll booths. We were told that since the fines were civil in nature, an "administrative fine", there need be no typical "proof beyond a reasonable doubt" burden that the US and Texas constitutions provide for all criminal defendants.

But now as the warrants pile up, we learn that while the fine may be civil, failure to pay it is a criminal offense.

Now there's a slippery slope for you. Are cops, courts and arrest warrants really the only way to go about traffic enforcement or insuring drivers, or might engineering solutions and civil regulatory structures perform these tasks just as well?

Licensed peace officers are some of the most expensive employees on every local government's payroll. Does it really make sense to use them as bill collectors for the toll booth operators?

I recall being surprised to learn this summer that 22% of arrests by Austin police officers are for Class C misdemeanors - one wonders if this police-as-bill-collector function explains why that number's so high? Since one in four Texans has no insurance and is therefore subject to "Driver Responsibility" fees if they're ticketed (which is how you get more than one in ten with outstanding arrest warrants), conceivably revenue generation could become a full time job for every cop in the state.

The justice system has a difficult enough time solving crimes and preserving public safety without also imposing on it the role of tax collector.

Friday, December 26, 2008

LBB: Texas' 2010-11 budget won't be completely strapped

With several big-ticket criminal justice items on the table during the 81st Texas Legislature - most prominently a half-billion in raises for prison staff and another 8-9 figure expense for new programs to combat contraband smuggling in prisons - many have been openly wondering whether the state will have enough money to pay for it all.

What's more, TYC requires investments in smaller facilities, special education, and expanded mental health services, while the Legislature has underinvested in free-world mental health services, in particular, in ways that direly impact the justice system. And that doesn't even begin to address problems at state mental hospitals, state schools for the mentally retarded, nor poor quality public schools which consciously channel their failures into the justice system.

The Legislature's $200 million investment in prison diversion programs in 2007, which staved off the state's short-term need for new prison construction, is a prime example how, for many dilemmas facing Texas justice, functional solutions require short-term investments to prevent even greater future costs. But when there's just no money for those investments, that can be hard to accomplish.

So how will the tanking economy affect Texas' overall budget revenue for the 81st session (which begins January 13)? As at least an iniitial answer to that question, I was pleased to notice this Nov. 14, 2008 budget certification (pdf) from the Legislative Budget Board which reads:
(1) the estimated rate of growth of the Texas economy from the 2008-09 biennium to the 201 0-1 1 biennium is 9.14 percent;

(2) the level of appropriations for the 2008-09 biennium from state tax revenue not dedicated by the Constitution is $72,992,740,945 subject to adjustments resulting from revenue forecast revisions or subsequent appropriations certified by the Comptroller of Public Accounts; and therefore,

(3) the amount of appropriations that can be made for the 2010-11 biennium from state tax revenue not dedicated by the Constitution without special concurrent resolution is $79,664,277,468 subject to adjustments to 2008-09 biennial appropriations referenced in (2) above.
While the Comptroller could still adjust those numbers downward, particularly if oil prices continue to decline, if the LBB's projections hold (and they were made post-credit crash, fwiw), the Lege will still have quite a bit of leeway - up to $6.7 billion - for either new spending or tax reduction. (That estimate assumes a robust 9.14% growth rate over the next two years, however, that may be overly optimistic.)

To the extent LBB's estimate is accurate, the Lege should set aside at least a billion of that extra capital to deal with immediate crises in the justice system: Pay hikes for prison staff and state troopers, making crime labs accountable and independent, investing to create local public defenders, expanding drug courts, treatment and re-entry programs (plus measuring their effectiveness), not to mention implementing critical innocence reforms.

These aren't the sexiest issues, but they're inarguably critical to the welfare of the state. If LBB is right and the Lege does have extra money to spend next spring, these are the public safety programs they need to prioritize.

Governor's border policies aimed at 2010 GOP primary

To understand Texas' border security policy, you don't actually need to know anything about security, but it sure helps to know about elections.

Since at least 2005, Texas Governor Rick Perry's re-election priorities have openly dominated Texas' border security policy. Campaign ads stoking fears of "terrorists" crossing the border were the centerpiece of Perry's 2006 gubernatorial re-election bid, and in 2007 the Legislature ponied up more than $100 million in pork-barrel grants - some of it going to people who where themselves working for the drug cartels - in an effort to create what's really quite a tenuous, money-driven coalition between law enforcement on the border and anti-immigrant activists in Texas cities and suburbs.

Perry's incumbency advantage combined with a strategy of pandering to xenophobia worked well enough to earn his 2006 re-election, albeit in an odd, 4-way contest in which only 39% of the electorate voted for him. Though his message didn't resonate with a majority of Texans, the math of re-election required only lockng down the right wing of the GOP base.

Now, once again electoral policies are dominating Texas' approach to border safety, with Governor 39% dishing up lots of red meat for the nativist base with an array of feel-good, do-nothing policies. The impetus this time around is well-liked US Senator Kay Bailey Hutchison's semi-declared intention to run for Governor in 2010, which easily poses the most serious challenge to Rick Perry since he edged out Democrat John Sharp for Lt. Governor in 1998.

In a Texas GOP primary, abortion and immigration are the touchstone issues and it's immigration where Perry thinks he can tack to Hutchison's right and lock up his third gubernatorial nomination. Based on 2006 and 2008 election returns, it's still doubtful a Democrat can compete head to head with a Republican for governor statewide, so if Perry wins the Republican primary, he'll likely continue on as Governor through 2014.

Sen. Hutchison supports a border wall and opposes comprehensive immigration reform, but she's taken pragmatic votes in Washington that Perry's people will be able to portray as "soft" on illegal immigration compared to his own politicized grandstanding.

Given that backdrop, I'm hardly surprised to see more border-related security theater from the governor as we head toward the 81st Texas Legislature in 2009. Perry wants to expand the $100+ million border security grant program the Lege gave him in 2007 to include urban police departments in the state's interior - essentially a pork barrel program similar to President Bill Clinton's COPS initiative. And he'll probably be asking them to pay for the security camera program he's launched along the Rio Grande river bottoms. Both requests IMO should be rejected.

Don't get me wrong: I don't doubt for a second that Texas needs to spend money on "border security," but a smarter place to start would be to finance Sen. John Carona's proposed law enforcement integrity unit at DPS, using limited state resources to take aim at police corruption. Instead, Governor Perry's pet initiatives are all PR or pork-related but don't seem designed to produce results.

That goes double for the Governor's longstanding push to put webcams on the border, which the Houston Chronicle reported yesterday has so far been a security bust ("Border cameras worth the cost?," Dec. 25):

More than a month after the launch of a state-funded Web site that allows people to monitor footage from surveillance cameras along the Texas border, the effort has netted one drug bust of more than 500 pounds of marijuana, officials said.

Since the Internet site went live Nov. 19, more than 21,000 people have signed up as "virtual deputies" and Web traffic has topped more than 5 million hits, according to BlueServo, the company that runs the site.

The program allows "virtual deputies" to monitor activity on 13 cameras in South Texas and report suspicious activity through www.BlueServo.net, which automatically notifies local sheriff's departments via e-mail of the reports, said Donald Reay, executive director of the Texas Border Sheriff's Coalition.

The surveillance program, funded with a $2 million grant from Gov. Rick Perry's office, scored its first and only drug seizure Nov. 28 with the discovery of 540 pounds of marijuana and the arrest of a suspected drug smuggler, Reay said. He declined to disclose the location of the bust or the agency involved, saying that would provide too much information about the camera's location.

Hmmmm. Don't you think the drug runners already know where their man got caught with 540lbs of pot? For that matter, anyone watching THROUGH the cameras could identify enough landmarks to tell their vantage point. The only people for whom the camera's location is a secret is the public, not the drug cartels!

Indeed, there's a real chance these webcams actually aid drug traffickers instead of deter them: If I'm a cartel strategist, I'd make sure a half-dozen false tips were reported through the website every time I made a run.

In any event, there are only 13 cameras along 1,254 miles of Texas border, so this is an impotent and useless strategy no matter how many people view the website. It's a program created for the benefit of the web viewer, not with an aim toward catching the bad guys. Indeed, the Governor's people say it would be wrong to judge their program by so crude a measure as results:

Allison Castle, a spokeswoman for Perry's office, said Tuesday that the governor is pleased with the new program so far.

She said it's designed to deter crime, much like a surveillance camera in a bank lobby, or a police car parked on the side of the road.

"If you try to measure its success on the number of people that are caught or pounds of marijuana seized, you kind of miss the point," she said. "We want to keep people from committing crime in the first place."

Got that? When they catch a mule with 540 pounds of dope it's a success, but when they don't catch anybody, it's also a success because it's evidence of deterrence. Really?

Does anybody think there's less dope flowing across the border since the cameras went up in November? If Texas can't keep contraband off death row, it's a dead-sure bet a few cameras won't keep it from crossing the Rio Grande.

Gov. Perry spent $2 million in law enforcement grants to finance this web circus, and he'll certainly be asking the Legislature to pick up the tab going forward. They should tell him "no." For too long Texas' border policy has been held hostage to the governor's political concerns, and for once the state should prioritize security over showmanship.

Wednesday, December 24, 2008

Will DPS get a "law enforcement integrity unit"?

State Sen. John Carona has thrown down the gauntlet on law enforcement malfeasance, filing SB 388 which would establish a new "integrity unit" at the Texas Department of Public Safety to investigate police corruption.

I've been complaining about Gov. Perry's pork-barrel border security program, mostly because it failed to do exactly what Sen. Carona aims to accomplish with SB 388: Focus first on reducing police corruption instead of throwing good money after bad, including sometimes giving it to people who are themselves working for the drug cartels.

One also notes the popularizing and broadening of the term "integrity unit," which to my knowledge finds its origins in Dallas County DA Craig Watkins' "Conviction Integrity Unit," before the Court of Criminal Appeals created its own "Integrity Unit" as essentially a study group. Now we see a third, still different manifestation of the term. Apparently "integrity" is lacking at many different points throughout the system for this term to catch on so readily in so many different venues.

What exactly the new unit would do, though, and how investigations would be initiated, remains a bit of a mystery to me. The unit would "assist" prosecutors and other agencies in investigation and prosecution of police corruption and serve as a "clearinghouse," but would not (as far as I can tell) inititiate investigations itself. (See the bill language.)

Nor is there a specific prosecution arm - no new unit at the Attorney General, for example - to whom investigators might even take cases. As the legislation is written, the unit would be relegated to assisting agencies when asked, which seems to ignore the fact that agencies which most need investigating might never solicit their services.

Still, this is a much needed and welcome development for which Sen. Carona deserves much credit. I don't see a lot of people from either party stepping up to take on law enforcement corruption head on. I'm hopeful that, if his proposal makes it through, lawmakers will give the new unit enough teeth to make it worthwhile.

Tuesday, December 23, 2008

Grapevine fans give early Christmas gift to TYC football team

This story from Sports Illustrated about a remarkable high school football game last month between a Grapevine Faith and the team from TYC's Gainesville unit literally made me weep:

It was Grapevine Faith vs. Gainesville State School and everything about it was upside down. For instance, when Gainesville came out to take the field, the Faith fans made a 40-yard spirit line for them to run through.

Did you hear that? The other team's fans?

They even made a banner for players to crash through at the end. It said, "Go Tornadoes!" Which is also weird, because Faith is the Lions.

It was rivers running uphill and cats petting dogs. More than 200 Faith fans sat on the Gainesville side and kept cheering the Gainesville players on—by name.

The Grapevine Faith coach deserves credit for this astonishing, inspiring event:

This all started when Faith's head coach, Kris Hogan, wanted to do something kind for the Gainesville team. Faith had never played Gainesville, but he already knew the score. After all, Faith was 7-2 going into the game, Gainesville 0-8 with 2 TDs all year. Faith has 70 kids, 11 coaches, the latest equipment and involved parents. Gainesville has a lot of kids with convictions for drugs, assault and robbery—many of whose families had disowned them—wearing seven-year-old shoulder pads and ancient helmets.

So Hogan had this idea. What if half of our fans—for one night only—cheered for the other team? He sent out an email asking the Faithful to do just that. "Here's the message I want you to send:" Hogan wrote. "You are just as valuable as any other person on planet Earth."

Some people were naturally confused. One Faith player walked into Hogan's office and asked, "Coach, why are we doing this?"

And Hogan said, "Imagine if you didn't have a home life. Imagine if everybody had pretty much given up on you. Now imagine what it would mean for hundreds of people to suddenly believe in you."

Next thing you know, the Gainesville Tornadoes were turning around on their bench to see something they never had before. Hundreds of fans. And actual cheerleaders!

"I thought maybe they were confused," said Alex, a Gainesville lineman (only first names are released by the prison). "They started yelling 'DEE-fense!' when their team had the ball. I said, 'What? Why they cheerin' for us?'"

It was a strange experience for boys who most people cross the street to avoid. "We can tell people are a little afraid of us when we come to the games," says Gerald, a lineman who will wind up doing more than three years. "You can see it in their eyes. They're lookin' at us like we're criminals. But these people, they were yellin' for us! By our names!"

Maybe it figures that Gainesville played better than it had all season, scoring the game's last two touchdowns. Of course, this might be because Hogan put his third-string nose guard at safety and his third-string cornerback at defensive end. Still.

After the game, both teams gathered in the middle of the field to pray and that's when Isaiah surprised everybody by asking to lead. "We had no idea what the kid was going to say," remembers Coach Hogan. But Isaiah said this: "Lord, I don't know how this happened, so I don't know how to say thank You, but I never would've known there was so many people in the world that cared about us."

And it was a good thing everybody's heads were bowed because they might've seen Hogan wiping away tears.

Wow. Just ... wow.

Hat tip to TYC Ombudsman Will Harrell for passing this along.

MORE: See earlier coverage from the Waco Tribune Herald.

Pre-holiday link dump

Because I'm too lazy to write full posts about each of them, here's pre-holiday link dump of stories that deserve Grits readers attention. Give me your thoughts on any or all of them in the comments:

Juarez crime harms El Paso coffers
The City of El Paso can measure the harm from decreased international bridge traffic to and from its troubled sister city, Juarez, by watching the money dry up in its city coffers: income from tolls makes up 3-4% of the city budget. Juarez saw an astonishing twenty more murders over the weekend.

No more private Idaho
After the state of Idaho pulled its prisoners, the Geo Group (a private prison company) gave pink slips for Christmas to 75 employees at the Billy Clayton Detention Center in Littlefield, which will close its doors in January. See the blog Texas Prison Bidness for more private prison stories.

Blaming the victim in Galveston
What should you tell your kids to do if "Three men pull up in an unmarked,windowless van, yell about you being a prostitute, and grab you, intending to stuff you into the van." If you're in Galveston, the answer, apparently, is supposed to be "go quietly." Otherwise, they might turn out to be cops and the child will be beaten and charged with resisting kidnapping arrest.

Most of the time justice
Former Bexar County DA Sam Milsap points to the cases of nine actually innocent Texans who've been exonerated off death row and says, "We cannot sanction a death penalty system that gets it right most of the time."

Profound confusion
Waco criminal defense lawyer Walter Reaves asks "How can someone convince themselves they are not guilty?"

Do you think the Lege will take his advice?
Mark Bennett, a Houston crimnal defense lawyer, thinks Texas' statute regulating online solicitation of a minor is unconstitutionally overbroad.

More police pork
There are more sources of law enforcement pork out there than I'd ever realized: TXDoT is giving police departments grants to pay for overtime on DWI enforcement.

Taping interrogations won't fix Miranda
Scott Greenfield, a New York lawyer and blogger, says assumptions behind the Miranda decision were deeply flawed, but cautions against embracing quick-fix refoms like recording interrogations that won't solve more fundamental problems.

Unsung heroes
There's a nice profile in the Temple Daily Telegram of the unsung heroes working at Central Texas Youth Services.

Shapiro: Texas sex offender registry strong enough
Texas probably won't bother to comply with the Adam Walsh Child Protection and Safety Act, which is a federal statute requiring states to make their sex offender registration requirements harsher or lose certain federal grant funding. The money quote: "In Texas, not complying could cost about $700,000, while complying will cost millions more. That may make the decision simple, said Sen. Florence Shapiro, R-Plano, long an advocate of strong sex offender laws. 'Seven hundred thousand on the one hand vs. $20 million on the other hand? It's pretty easy to resolve,' she said. 'Our laws are strong, and we don't need to comply.'"

Don't taze me, bro
Amnesty International published a new report (pdf) on police use of Tasers.

Making the most of second chances
Finally, a feel good story: At Women in Crime Ink, Cynthia Hunt says there are legal and life lessons we could all learn from Marcus Dixon, a Dallas Cowboys backup defensive end who was freed last year from a Georgia prison where he was serving a mandatory 10-year sentence for what was essentially a statutory rape case from when he was 18. (The same law gave a ten year minimum for consensual oral sex among teens.) Public outcry and some fancy lawyering paid for with his adopted parents' life savings won Dixon's freedom and early release. After returning to school and finishing college as a 3-year captain and member of the Dean's list at Hampton University, he earned a spot on the Cowboys' squad this year as an undrafted free agent.

Monday, December 22, 2008

Duncan, Ellis championing cause of innocent man who died in prison

On the innocence front, state Senators Robert Duncan (R-Lubbock) and Rodney Ellis (D-Houston) say they'll team up during the 81st Texas Legislature to extend compensation to families of innocent inmates who died in prison before they were exonerated, creating a mechanism to formally clear the name of those unhappy souls who did not live to see their innocence proven.

This effort stems from the Tim Cole case out of Lubbock, where a Texas Tech student was falsely accused of rape after the victim identified him in a photo lineup. Reported the Lubbock Avalanche Journal:
State Sens. Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston, may clarify how the state compensates and exonerates wrongfully convicted inmates who die in prison.

The work, along with recognition by Texas courts, could bring closure after 22 years to the family of Timothy Brian Cole and formally recognize what could be the country's first posthumous exoneration.

"I think we need to recognize that for the family," Duncan said. "When the government deprives somebody of liberty, that's a pretty significant right." ...

Legislation Duncan authored seven years ago gave inmates with a legitimate innocence claim easier access to DNA testing. A separate bill by Ellis laid out rules for compensating the innocent Texas had imprisoned.

"I think this basically improves the reliability of our prosecutions and, hopefully, provides some assurance to the public that the criminal justice system has checks and balances," Duncan said in a late November interview. "Hopefully, maintains the integrity of the justice system."
See prior Grits coverage of the Tim Cole case here, here and here.

Meanwhile, the Dallas News Crime Blog informs us that more Texas police departments - Carrollton PD is specifically profiled - are beginning to establish written policies for eyewitness identification procedures. A study by the Justice Project (pdf) released last month found that 88% of Texas police departments do not have any written procedures for how to conduct live lineups or present photo arrays to suspects.

It was a faulty eyewitness testimony that convicted Tim Cole, and the rape victim in that case has bravely joined with Tim Cole's family to help clear his name and demand systemic improvements.

Sen. Ellis has filed SB 117 to require Texas police departments to all implement written eyewitness ID policies that include minimal safeguards like blind administration, cautionary instructions to witnesses (e.g., "the perpetrator might not be there"), and other low-cost/high-benefit measures to reduce false accusations.

RELATED: See this detailed public policy report from The Justice Project on best practices for eyewitness ID procedures.

"The quality of mercy is not strain'd," particularly when it doesn't have to do any heavy lifting

Shakespeare wrote that "Sweet mercy is nobility's true badge," and that "The quality of mercy is not strain'd ... it becomes the throned monarch better than his crown." But I'm not sure the Bard would have reacted with such noble sentiments upon seeing the handful of lightweight holiday-season clemencies offered up by Gov. Perry last week, mostly for penny ante offenses from decades past:
· Jerry Wayne Crownover of Arlington, 54, was convicted in 1997 of making a terroristic threat during an altercation with his brother, a Class B misdemeanor. He was sentenced to 15 days in jail. He is granted a full pardon.

· Wesley Baker Davis of Amarillo, 79, was convicted in 1947 of knowingly passing a forged check at the age of 18. He was sentenced to five years of probation. He is granted a full pardon and restoration of firearm rights.

· Marlyn Ann Linguist of Cedar Hill, 52, was convicted in 1976 of unlawful carrying of a weapon and theft at the age of 21. She was sentenced to three days in jail for both charges. She is granted a full pardon.

· Nicholas Villa Marquez of Comanche, 39, was convicted in 1989 of a misdemeanor at the age of 20. He was sentenced to six months’ probation and paid $725 restitution. He is granted a full pardon.

· Ruben Eduardo Ramirez of Galveston, 32, was convicted in 1996 of possession of less than two ounces of marijuana. He paid a $500 fine. He is granted a full pardon.

· Thomas Clyde Reedy of Denton, 59, was convicted of burglary in 1971 at the age of 22. He was sentenced to five years’ probation. He is granted a full pardon.

· Ronald John Ursin of San Antonio, 78, was convicted of indecent contact with a child. He was sentenced to 10 years probation. He is granted a full pardon. His pardon was granted after the victim and the woman who accused him both said the complaint had been fabricated during a child custody battle.
One feels particularly sorry for the 79-year old Amarillo man who only now had his firearm rights restored for the offense of passing a bad check in 1947 - there's a collateral consequence that hardly seems to fit the crime. Similarly, heaven only knows what injustices Mr. Ursin had to endure as a result of his false conviction for "indecent contact with a child" - a pardon at age 78 hardly makes up for years spent on the sex offender registry because of fabricated allegations.

Another that stands out to me is the pardon of Ruben Ramirez for a 1996 B-misdemeanor pot possession charge. It's not that I don't think it's merited, but it's hard to understand why the Board of Pardons and Parole would pick out one low-level pot offender to pardon when thousands of others are similarly situated.

Lawyers for polygamist Moms top Texas Lawyer's "Impact Players"

Texas Lawyer magazine has given its annual "Impact Player of the Year" moniker to attorneys they've dubbed "The Mom Squad" who represented the fundamentalist Mormon parents in the Great Eldorado Polygamist Roundup this spring, particularly highlighting the work of Julie Balovich and Amanda Chisholm from Texas Rio Grande Legal Aid. These are well-deserved kudos, properly also shared with the many other attorneys who traveled to San Angelo from all over the state to represent FLDS parents in emergency removal hearings.

I find it fascinating that opinion leaders' views have now shifted so mightily about whether the state was correct to take the kids. Reports TL:
Jack Sampson, a University of Texas School of Law professor who founded the law school's Children's Rights Clinic, says the Supreme Court's opinion drove home a point paramount in all parents' rights cases that will be remembered for a long time in Texas family courts: The state needs evidence of a threat to remove children from their homes on an emergency basis.
The irony: That's a message that was lost on Sampson himself when the event actually took place. During the entire mess, he positioned himself firmly in CPS' and Judge Walther's cheering section and made himself widely available to be quoted in media accounts as an expert on the subject. Balovich, Chisholm, many other lawyers, and also the Third Court of Appeals and the Texas Supreme Court all distinguished themselves in that process, we can now see with the benefit of 20/20 hindsight. But the same cannot be said for folks like Prof. Sampson who crowed to the press about unproven abuse and spun justifications in the media to cover for what was essentially an illegal kidnapping at gunpoint by the state based on false allegations.

Texas Lawyer also published nice features on its runner-up list of "Impact Players" for 2008, which includes:
  • Andrea Marsh of the Texas Fair Defense Project, whose first case as an attorney was Rothgery v. Gillespie County which was decided in her favor this year by the US Supreme Court and is presently transforming how Texas counties handle indigent defense.
  • Lloyd Kelley, a Houston attorney whose civil suit revealed emails to and from then-District Attorney Chuck Rosenthal that ultimately brought down the powerful DA's administration, only to see his former law partner, C.O. Bradford, narrowly lose the election to succeed his nemesis to Republican Pat Lykos.
  • Robert Ryan and Jeffrey Dorrell, two Harris County grand jurors who bucked the DA's office to insist on indicting Texas Supreme Court Justice David Medina for arson.
  • Gerry Birnberg, chair of the Harris County Democratic Party whose candidates nearly swept Harris County judicial races and won their first countywide seats - including Sheriff - in many years.
  • The prosecution team in the Holy Land Foundation case (more on this in an upcoming post).
  • Hurricane Ike.

Better border strategies needed for journalist, witness protection, unmasking corruption

The War on Drugs from its inception has been marked by a stubborn futility in the face of overwhelming failure, but these days some of the proposals to combat Mexico's cartels are laughably pointless, like the Dallas News' suggestion last weekend to protect journalists reporting on the drug war. Their editorial last Sunday opened:

As much as we hate to admit this, the leaders of Mexico's drug cartels know what they're doing. By targeting the people who tell the rest of Mexico – and the world, including those of us in North Texas – about their deadly ways, the cartel's honchos know they are silencing the storytellers.

And by silencing them, they decrease the chance that people will know the depth of the cartels' corruption.

Sadly, this is precisely what's happening. The Committee to Protect Journalists in New York reports that 21 journalists have been slain in Mexico since 2000. That includes Armando Rodriguez, killed last month in Ciudad Juárez.

So what is the solution to this problem, according to the Dallas News? Pass another law against it! God knows, that'll solve it - why didn't we think of that before?!

That's why it's so critical that Mexican legislators pass a law before them now to make it a federal crime to curtail an individual's right to self-expression. The proposal also would strengthen the federal office of special prosecutor and give it more clout in investigating cases like Mr. Ortiz's.

Giving the feds more power to protect journalists wouldn't end the violence, but at least the cartels would know that Mexico City values the storytellers. And that must frighten them.

Why in heavens name would the Dallas News think a new law against murdering people would "frighten" the cartels when they're killing cops and rivals with impunity and it's the police who are afraid of them, not the other way around?!

New laws banning already illegal behaviors are just for show. What are needed instead are new strategies and tactics.

Twenty one dead journalists is the best argument I can think of for state and federal intelligence officials (the FBI and CIA at the federal level, DPS' criminal intelligence division for the state) to forego their traditional "security through obscurity" approach and embrace what' I've been calling "open-sourced intelligence," where part of the government's strategy is to publicly unmask cartel members and drive them as far as possible underground. I see no reason for journalists to die for reporting information that, in most cases, is already sitting in some government file somewhere and which is in the public interest to make known.

I've also been trying to think what strategies the US might employ as Mexicos' partner to reduce corruption. IMO the emphasis on buying guns and equipment from Congress' favorite contractors, by itself, is a failed strategy if it doesn't first address the biggest barrier to success in reducing cartel power: Official corruption on both sides of the border.

Here's a suggestion that plays off of America's inherent advantages and strengths - the fact that the rule of law is much stronger here than in Mexico and people in the United States are (relatively) safe from retaliation compared to in Ciudad Juarez or Acuña:

Corruption occurs in Mexico more because of intimidation than some inherent weakness in the national character. Plata o Plomo - Silver or Lead - is the choice facing both local and federal officials, and the threat of a bullet is no joke. It doesn't matter who you are, the government can't protect you.

One of the lessons learned from US debates over witness intimidation and the "stop snitching" slogans popularized in recent years by drug dealers and hip hop moguls is the importance of well-funded witness protection programs to prevent witness intimidation. At the end of the day, sloganeering aside, there's really no substitute if you want people to cooperate by standing up to violent, dangerous thugs.

With that lesson in hand, perhaps the United States, as Mexico's partner, could assist by establishing a robust witness protection program whereby police and others who turn in their cartel handlers or citizens who rat out corrupt cops could actually come live in America with their family, not just until they were required to testify but as long as they continue to be in danger.

Even if America chipped in most of the cost, you'd have to relocate a lot of people before you reached the $1.4 billion-plus total proposed by the Bush Administration for guns and equipment in the Merida initiative.

(H/T: Drug War Rant)

Saturday, December 20, 2008

DPS' legislative wish list

A little birdie forwarded me a list of bills the Texas Department of Public Safety is requesting from the 81st Texas Legislature, so I uploaded it into a Google document format which readers can view here.

Though I've not yet examined this bill list in any detail, that's quite a lengthy and ambitious agenda.

Wichita Falls punishing victims of graffiti crime

Wichita Falls is the latest city to declare a "zero tolerance" policy for graffiti (which one imagines will work about as well as the "zero tolerance" policy regarding contraband on death row) aimed entirely at punishing the victims of graffiti crime instead of solving the problem:
property owners will first receive written notice. Then they'll have 15 days to either take care of the graffiti themselves --- or pay 50 dollars for the city to clean it up. If nothing is done, the property owner will be fined 150 dollars and the city will remove it.
The TV news story about the new ordinance demonstrates a bizarre disconnect where the city council's punitive view toward graffiti is misplaced toward property owners, who as crime victims are not given the least consideration:
Councilors Michael Smith and Dorothy Roberts-Burns wanted the fee to be lowered from 50 dollars to 25. But the other councilors voted to keep it at 50. “I concur with Councilor Ginnings, in that the lower you make the fee – the closer it gets to zero – then it becomes just an entitlement,” said Councilor Rick Hatcher. “People think, ‘I’m supposed to get the city to do that for me.’” One Wichita Falls Business owner said the city must crack down. “It’s embarrassing to me, when I bring people to invest in our city,” said Rick Graham. “Specifically, the Hotter ‘N Hell bike race – we have graffiti all over the place, that’s been there for 15 years!”
This to me is a bizarre set of opinions to hold all in the same head. Councilor Ginnings said, "the closer it gets to zero – then it becomes just an entitlement," but the property owner is a crime victim, not the offender.

Why shouldn't taxpayer dollars be used to paint over unwanted graffiti? The city is perfectly willing to use taxpayer funded police to arrest graff writers, the jail to incarcerate them, the courts to prosecute them, etc.. All that costs a lot more money than just cleaning up the graffiti would, so why is there such resistance on the council to treating crime victim restoration as an "entitlement"?

At the same time, business owners are complaining about graffiti that's been there 15 years. You could fine every business owner in town and that graff will still be on the wall until the day they clean it up. Why delay that improvement or put the financial onus on the property owner when a) they're the crime victim and b) the city is acting based in the public interest, thus justifying expense of public funds?

Besides, lots of cities have fine regimens for graffiti like Wichita Falls has created and that approach has hardly resulted in a "zero tolerance" atmosphere - it just gives city government another income stream from fining local property owners for things that aren't their fault.

The real solution and the most effective punishment for graffiti is not fines for property owners or incarceration for graff writers but simply rapid cleanup. If graffiti vanishes immediately and graff writers can't admire their work the next day, that's the strongest disincentive a city can create for wall writers and the best way to reduce graffiti as opposed to simply playing cat and mouse with taggers for years on end.

I continue to believe rapid cleanup (combined with establishing public spaces for invited graff) has the potential to actually reduce uninvited graffiti, whereas both punishing crime victims and spending tons of police resources chasing phantom-like graff writers will continue to fail to address the crux of the problem.

Friday, December 19, 2008

TCJC: Jails need technical assistance to reduce unnecessary overcrowding

As part of their participation in the Sunset review process for the Texas Commission on Jail Standards, the Texas Criminal Justice Coalition:
recently launched an anonymous online survey targeted towards Texas Sheriffs, County Court Judges, and Jail Administrators. Specifically, this survey was intended to address questions posed by the Sunset Advisory Commission in regards to the mission and performance of the Texas Commission on Jail Standards (TCJS).
See the full survey here (pdf). Most respondents said no changes were needed to TCJS' functions, but the largest number who offered suggestions believed that "additional assistance to jails and counties in their efforts to be safe and compliant," while responses to another question placed the highest premium on "more training for jail staff; more education and available information."

I think that's exactly right; TCJS currently performs annual inspections but does not have capacity to provide significant technical assistance to counties to help them implement diversion programs or reduce overcrowding. As a result, TCJC recommended that:
TCJS should be given additional staff that can focus solely on providing technical assistance for programs that provide rehabilitation, education, and re-integration for inmates confined in county and municipal jail facilities under its jurisdiction. Such programs could include (a) group counseling, (b) drug education, (c) basic education programs, (d) transition planning, and (d) aftercare planning.
Staffing that function at TCJS could have a big impact on local jail overcrowding and help ensure that lessons learned in one jurisdiction are communicated to jailers in other counties. IMO, the other big need is for greater oversight by TCJS of medical and mental health-related jail functions, both as part of the inspection process and providing technical assistance to improve these functions.

Respondents to TCJC's survey were asked to list the biggest challenges facing their jails and TCJS in the next five to ten years and, perhaps predictably, the top three were:
• 36% = overcrowding (due to increasing jail populations)
• 22% = additional jail and TCJS staffing
• 13% = additional jail construction
It's true that jail populations are increasing in Texas even though crime has been declining, but nearly all that trend results from expanded use of pretrial detention for low-level offenders. Given that, staffing TCJS to provide technical assistance aimed at reducing pretrial detention could produce a lot of bang for the buck for county taxpayers, particularly in the near term when many jurisdictions are still using inefficient practices. I think that's a really smart suggestion.

Read TCJC's full written response to the Sunset Staff Report here. See also the Sunset staff report and public comments submitted as part of the Sunset process. Comments on the Jail Standards Commission's Sunset review may still be submitted until 5 p.m. this afternoon; email them to sunset@sunset.state.tx.us.

Dynamics of Overcriminalization

Last weekend I wondered aloud why the first response in this country to every social problem always seems to involve more cops, courts and punishments. So later in the week I was delighted to see some of those themes more ably developed in two top-notch posts by criminal defense attorneys Mark Bennett and Scott Greenfield, both of whom offered useful and important discussions that, taken togther, at least partially explain the overcriminalization dynamic.

Greenfield, a criminal defense attorney out of New York, laments the decline of the mens rea requirement in crimnal law, which is the principle that punishment requires personal fault. He rightly argues that:
legislative bodies have exhausted every possible permutation of malum in se offenses, the ones everyone knows or should know are wrong without having to be told in explicit detail, they have increasingly crafted malum prohibitum to be used as a regulatory framework to control more behavior that isn't inherently wrong, but that they have decided for whatever reason shouldn't be done. These offenses don't necessarily involve any moral fault on the part of the perpetrator, but rather a choice between various options, one or more of which has been denominated a crime.
Bingo! It's exactly that dynamic that causes a state like Texas to wind up with eleven different oyster-related felonies on the books!

Greenfield properly dislikes "The fact that the conduct was innocent or negligent no longer seems to deter the demand for punishment. It's all about the outcome and that every harm must have a crime to combat it."

Meanwhile, at his excellent blog Defending People, Mark Bennett opines on modern tradeoffs between freedom and safety, drawing on sources as disparate as philosophical debates among the Founding Fathers to modern brain science and the impact of fear and anxiety on policymaking. Bennett grants that safety, to an extent, is a prerequisite for liberty, but argues that the threshold after which liberty becomes the more important value is an extremely low one:

Do we have to have a degree of safety to enjoy freedom? Sure. The bottom level on Maslow’s Hierarchy has to be satisfied. But guess what: there’s no sabretooth breathing down your neck. The barbarians are not at the gates of your condo, which is fortunate because if they are you’re on your own — the government is busy popping hookers and crack users, and won’t show up when you call.

The costs of relying on government to keep us safe are manifold. We have to pay for it, which is in itself a deprivation of liberty; since government is inefficient and blows dangers out of proportion we pay a lot more than it would cost us to do it ourselves. We have to give up freedom from governmental intrusion in our own lives, because government can’t discriminate ab initio between the good guys and the bad guys and requires the power to meddle as much in our affairs as in those of the ones who might do us harm.

There's a lot more great stuff in both pieces and I'd encourage you to read them both. These are discussions which are almost impossible to imagine occurring in the mainstream media, so thank God for the blogosphere where the only limits on discourse are the boldness, knowledge, and imagination of the writer, not any ideological filter.

Thursday, December 18, 2008

CCA rejects death penalty cases over Brady violations: What statutory changes might deter withholding exculpatory evidence?

Here's something you don't see everyday, from the Dallas News Crime Blog:
Two death row inmates received favorable rulings from the Texas Court of Criminal Appeals on Wednesday, a rare occurrence, but particularly unusual because of the reasons: possible prosecutorial misconduct.

Michael Roy Toney, who was convicted in Tarrant County for killing three people in 1985 with a briefcase bomb, was ordered a new trial because of his claim that prosecutors failed to disclose evidence. Joseph Andrew Prystash, who was convicted in a 1994 murder-for-hire case out of Harris County, had his case sent back to the trial court for consideration of his claim that the state suppressed evidence.

Another death row inmate making a similar claim, Rodney Reed, was not so lucky. The Court denied relief, saying Reed, who was convicted of murder in Bastrop in 1996, failed to show the state did not disclose favorable evidence.

See the Fort Worth Star Telegram coverage of the Toney case.

Rodney Reed was denied a new trial by the CCA despite strong new evidence which only emerged after his conviction implicating the victim's fiance, a police officer named Jimmy Fennell, who is currently "serving 10 years in prison after pleading guilty in September to kidnapping and improper sexual activity with a person in custody." Reported the Austin Statesman:
Wednesday's court opinion noted some of the evidence that Reed's lawyers say suggests Fennell's involvement — including that he gave deceptive answers in a polygraph test during the investigation — "arouse a healthy suspicion that Fennell had some involvement in Stacey's death."
Even so, the court ruled that a "healthy suspicion" someone else committed the crime does not rise to the level of "reasonable doubt" and that a jury wouldn't have ruled any differently. Personally I doubt that they can really know that with such absolute certainty, given how much new information has come out about that case.

In any event, the common thread here are allegations of prosecutorial misconduct - specifically so-called "Brady" violations (i.e., withholding exculpatory evidence).

I wish I believed these two cases indicated the Court of Criminal Appeals is becoming a more interventionist watchdog over prosecutorial misconduct, but their past record can't be mitigated by just a couple of cases, though I certainly hope this is the beginning of a shift in thinking among the court's majority. Still, the CCA's oversight isn't a significant enough deterrent to Brady violations and I believe more preventive measures are needed.

The single best solution would be to mandate an "open file" policy in every Texas jurisdiction (right now it's done at the discretion of the local DAs and county attorneys) so that defense counsel could have access to the same police reports, witness statements, and other documents the prosecutors get to see. That system works wonderfully in Tarrant County, where these files are kept online and defense counsel can access files on their cases via a password that lets them see everything in there.

A more punitive approach was suggested by Dallas District Attorney Craig Watkins, who in the past has endorsed boosting criminal penalties for knowing Brady violations. Incoming Harris County DA Pat Lykos has also said that could be appropriate in some cases.

For my part, I'm not sure creating some new crime is needed so much as tweaking an existing one to allow its use in the types of cases where Brady violations routinely come up. I'm not a lawyer, but I don't see why a knowing Brady violation couldn't (theoretically) be prosecuted as a Class A misdemeanor under the rubric of "abuse of official capacity" (See Title 8, Sec. 39.02 of the Texas Penal Code). The problem comes because too often the violations aren't identified until years after the fact when the statute of limitations has already expired.

(Let me know in the comments, by the way, if you think a Class A misdemeanor is a stiff enough offense category for knowingly withholding exculpatory evidence in a capital case.)

Perhaps instead of creating a new offense, the timeline on the statute of limitations for "abuse of official capacity" could be changed to begin when the problematic behavior is discovered instead of when the offense is committed. After all, the harm to the falsely convicted defendant has been ongoing and didn't stop two years after the event.

Another option would be to create a new, separate crime with its own penalty categories, but in general I believe we've got plenty of laws on the books and for the most part only need to tweak and adjust the ones we have.

It's not so radical to think public officials deserve this extra layer of accountability. The statute of limitation for theft by a public servant is already one of the longest on the books - ten years - because of the extra expectation of integrity imposed on public servants. Revamping the limitation for "abuse of official capacity" would help ensure rogue prosecutors and others in positions of authority aren't rewarded for successfully concealing their crimes.

Equally important to realize: To a large extent this problem stems just as much from the failure of the legal profession's self-regulation of individual prosecutors' misdeeds. In truth, I wish the State Bar of Texas were handling its own business more aggressively so that it weren't necessary to turn to criminal statutes to enforce prosecutorial integrity.

If the state bar disciplinary committee began sanctioning prosecutors who engage in Brady violations or even, in egregious cases, stripping them of their license to practice law, there would be no need to contemplate tougher criminal penalties.

If that day ever comes, these problems would soon, IMO, self correct. Most prosecutors aren't engaging in overtly unethical behavior and the rest largely do so because there's virtually no risk they'll face any consequences for their actions. After all, lawyers, as a class, are generally a risk-averse lot. I'll bet they're much more responsive to adjustments in criminal sanctions than almost any other class of defendants.

MORE: Eye on Williamson County has more on the Reed/Fennell case.

West Texas locals view TYC as jobs program

During prison building boom in the '90s, Texas pols came to view new prison units as a way to prop up the economy in depopulating rural areas, hoping to slow the rapid urbanization that transformed the state in recent decades.

However, siting corrections units in remote, rural areas created many practical problems: It's difficult to find staffing, even more difficult to find medical specialists or mental health providers, and for juvenile corrections there's little access to specialized programming that might help kids succeed.

Equally frustrating, because the only reason the state put prison units in tiny rural towns was to prop up their economy with political pork, locals inevitably came to see those agencies as mere jobs program instead of fulfilling a state function. That dynamic may be seen in this Odessa American story ("Possible Pyote Closing," Dec. 16) about the possible closure of TYC's West Texas State School:

Less than a year after the last battle, David Cutbirth is ready to fight again to keep the West Texas State School in Pyote.

With a drop in the oil and gas markets, the Monahans mayor said there's an even greater need for the Texas Youth Commission facility and the 153 jobs it provides.

"About the time we need jobs, they shut it down," Cutbirth said. "That's the damn state for you."

Cutbirth was upset over a recommendation in a report by the staff of the Sunset Advisory Commission, a state agency created to eliminate waste, duplication and inefficiency in government. The group called for the TYC facility, located 15 miles west of Monahans in Ward County, to be closed, citing a difficulty to keep the juvenile prison staffed.

Due to a lack of workers, the Pyote school is budgeted for 96 youth, even though it has 240 beds, the Sunset commission said in its report. It currently has 92 students. Closing it would save the state $9 million.

Cutbirth clearly could care less about TYC's juvenile justice functions, and he certainly doesn't care that the local DA isn't interesting in prosecuting sex crimes at the unit. His only concern is that "we need jobs."

However that's not remotely TYC's responsibility to worry about - it's got enough troubles managing its own business. Anyway, a far bigger blow to the West Texas economy are layoffs in the oil industry; by comparison, TYC is small potatoes.

The biggest irony is that Cutbirth actually lost this fight in 2007 and apparently didn't realize it. The Legislature only budgeted the Pyote facility through fiscal year 2008, and the unit is currently being operated on leftover savings because of understaffing at other TYC units. (The same is true for the Victory Field unit in Vernon.)

While the Sunset staff projected budget savings from those closures, in fact that was an erroneous analysis - closing those facilities won't reduce TYC's budget from the current amount, but keeping them open would cost the state more. Bottom line: The Pyote and Victory Field units are already living on borrowed time.

Prisons are not jobs programs - that's true for both TDCJ and TYC. If the state wants to invest in jobs programs, prisons have a relatively small economic multiplier effect (see this report from the Sentencing Project) while other investments - in education, healthcare, and transportation infrastructure, for example - will give much more job-producing bang for the buck.

To the extent TYC should be salvaged, it's because it fulfills an important state function, not soley to put money in the locals' pockets. Where that's the goal, there are many more beneficial ways to go about it.