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
DONATE TODAY!!!

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.

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.

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.

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.

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.

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.

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.

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)

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.

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.

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.

JEHT Foundation closure a blow to criminal justice reform

News came on Monday that the JEHT Foundation, a philanthropic charity out of New York that has funded a great deal of criminal justice reform work in Texas and around the country, will cease giving grants and close its doors in January because their money was invested with alleged Wall Street crook Michael Madoff who apparently lost all their money in a $50 billion "ponzi scheme." You can read the announcement from their President Robert Crane here.

Along with George Soros, the JEHT Foundation was one of the largest funders of progressive criminal justice reform work nationwide. According to the New York Times:

When Jeanne Levy-Church created the JEHT Foundation in 2002 to promote justice, equality, human dignity and tolerance, she tapped into investments run by Bernard L. Madoff.

Those investments were initially made more than three decades ago by her father, Norman Levy, who entrusted his real estate fortune to Mr. Madoff. Financed solely by regular contributions from Ms. Levy-Church, the foundation gave away more than $75 million over the next few years.

But on Monday, the young foundation announced that it would cease operations by the end of January — a victim of the same investments that made it a star in liberal philanthropic circles. “The returns had been steady and strong for all these years,” said Robert Crane, the foundation’s chief executive. “It was shocking.”

Mr. Madoff’s investment firm, Bernard L Madoff Investment Securities, collapsed last Thursday when federal regulators arrested him on charges that he had masterminded a scheme defrauding investors of $50 billion by his own estimate. ...

Ms. Levy-Church and her husband, Ken Levy-Church, supported JEHT each year with a contribution from their Madoff funds. There will be no more.

“Our programming is totally dependent on the ongoing funding, so for all intents and purposes it has ceased,” said Mr. Crane, JEHT’s chief executive. “People with grants currently in hand will keep that money, of course, but we can’t make good on pledges and grants that are for multiple years.”

The foundation’s 24 employees are losing their jobs, and organizations like Human Rights First, the Center for Investigative Reporting and the Juvenile Law Center are losing revenue.

Another foundation sustained by the Levy-Church fortune focused on sustainable food policies must also shut its doors because of the Madoff debacle.

The JEHT Foundation was particularly important because it had undertaken to finance grants in areas like civil liberties advocacy and criminal justice reform that more traditional liberal foundations had considered too edgy to support.

In Texas, JEHT in the past has supported criminal justice advocacy work at the ACLU of Texas, the Texas Criminal Justice Coalition, and the Innocence Project of Texas - all organizations I've worked for during periods when they received JEHT support - as well as the Texas Defender Service and probably other reform groups I'm not aware of. One of JEHT's larger, recent campaigns in Texas supported voter registration work among ex-felons.

It's hard to know what impact JEHT's closure will have - they're not rescinding grants that were already let, but multi-year grants won't be honored and JEHT will not be issuing new funds for these types of projects.

This is a major blow to the criminal justice reform movement nationally, but at the same time JEHT's prior work has already helped build up a new cadre of skilled activists on these topics who didn't exist just a few years ago because nobody was providing them professional-level support and development. So even if JEHT never gives another dime, the foundation will have spawned a legacy that will outlive its formal, legal structure.

While the foundation's denouement was a disappointment, the contributions by Crane and Co. have been significant and much appreciated. They've financed much important work that will continue to impact criminal justice policy in the coming years even now that their money has dried up.

BLOGVERSATION: See more from Daily Kos, Thinking Outside the Cage, ForPeace, and MoneyLaw. See also this video from foundation E.D. Robert Crane.

MORE: See the New York Times' extensive coverage of Madoff's fraud, which they describe as the first international ponzi scheme.

AND MORE: From the Dallas News, "JEHT funding for Dallas DNA tests already granted."

Sunset Testimony: Merger ignores underlying TYC trends, biggest barriers to improvement

The Sunset Commission will accept written comments about the proposed merger between TYC and TJPC and other subjects addressed in the Sunset report through 5 p.m. on Friday. You can send public comments to sunset@sunset.state.tx.us.

I told Sunset Commission Chairman Carl Isett I would encapsulate my oral testimony from Monday's Dec. 15 public hearing into written form and submit it this week, and state Sen. Juan "Chuy" Hinojosa suggested that when I did, I should post it on the blog, so here it is, expanded from several prior Grits posts:

* * *

Simply merging the Youth Commission and Juvenile Probation Commission won't solve the myriad problems described by Sunset staff facing Texas youth prisons and might result in negative, unintended consequences.

Merger Ignores Biggest Problems

To the extent a merger is done with an eye toward reducing expenditures, it could actually make matters worse because most of the major problems identified by Sunset staff - inadequate mental health treatment, lack of special ed instruction, oversized facilities, etc. - require more resources, not less, to solve. Cost savings predictions also ignore the need for investment in other areas like public schools and healthcare that affect juvenile justice.

Why Not Embrace Blue Ribbon Panel Suggestions?

Sunset staff (who are government efficiency wonks, not juvenile justice experts) failed to advocate a shift to smaller, Missouri-style facilities or a rehabilitation model that conforms to widely acknowledged best practices aimed at reducing recidivism. The gubernatorial Blue Ribbon Panel's detailed suggestion (pdf) in 2007 for reforming TYC along these lines was sadly defenestrated by the adult-prison transplants who were running the agency at the time and was never revived.

Given my druthers, I'd prefer the Sunset Commission had revisited and drawn more heavily from those Blue Ribbon Panel suggestions - they're proposing to take the agency in a different direction than the one suggested by most juvie specialists.

Merging Parole with Counties Makes Sense

There is one area where I agree a merger is justified: TYC's parole services should be managed by county probation departments to create more seamless reentry networks and to ensure that locals are engaged with the kids from their community throughout the process. Reentry after leaving TYC is difficult and local probation offices have more resources and connections to help youth succeed. TYC already contracts for parole services with more than 30 counties, so there's an existing model for how this could work that's transferrable to other jurisdictions.

Beware Unfunded Mandates for Counties

The Sunset report downplayed too much (IMO) the financial impact of downsizing TYC on counties at a time when the Legislative Budget Board says youth inmate populations will be rising. There's a pilot grant program suggested to reimburse counties for costs, but it appears underfunded and speculative whereas if more TYC kids must be handled by counties, those costs will be specific and concrete.

Likely most counties would seek to identify private residential placements to manage these offenders, but the truth is there simply isn't enough private capacity out there right now to pick up the slack if LBB's inmate population projections hold. The Sunset report and the LBB projections, as far as I can tell, cannot be mutually justified - something's got to give.

From the data in Sunset's financial analysis, I'm convinced a merger cannot save the state money, as the report predicts. There are just too many questionable assumptions that will not bear out upon implementation.

Overstating Savings from Facilities Closure

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, the recommendation ignores the fact that TYC has already recently closed three facilities – San Saba, Marlin, and the Sheffield Boot Camp - and two others were de-funded by the Legislature and are currently paid for from “savings” due to understaffing at other units. Thus there would be no savings from the closures compared to TYC's current budget. Plus, the proposal comes at a time when TYC's inmate population is rising. According to the agency's response to the Sunset Commission

The Legislature appropriated funding for an average daily population of 2,292 in institutions. Currently, institutional populations are 7.8% under that number, while the population is projected to increase. If the three facilities identified in the Sunset report were closed, the agency would have insufficient capacity for serving the projected population.

The Sunset report categorizes the 587 layoffs as a loose guesstimate and said 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.

Plan for Inmate Population Increases

Since that time, the number of youth in TYC declined to half the number where the agency maxxed out 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. But the Sunset report assumes such a switch would save money. I don't think that's true.

LBB Projections Ignored

Sunset failed to base its analysis supporting facility closures on the Legislative Budget Board's official projections regarding youth crime and incarceration in their five year population estimates (pdf), which are used to set agency budgets.

In 2007 the Legislature took steps aimed at reducing inmate populations at the Texas Youth Commission, including shifting 19-20 year olds to TDCJ and refusing to take misdemeanants at state youth prisons. The population drop can be seen most dramatically in the number of releases. TYC released 4,375 inmates during fiscal year 2007, up from 3,554 in fy 2006. By comparison, the number of new inmates entering TYC decreased from 3,462 in fy 2006 to 2,994 in fy 2007 and an estimated 2,090 in 2008 (based on the monthly rate for the first seven months). LBB predicts the new level of intakes will hold steady at 2,090 over the next five years.

Those declines mainly represent implementation of a new law disallowing judges from sending misdemeanants to TYC, sending 19 and 20 year olds to TDCJ, reduced lengths of stay, and reduced numbers from a handful of counties that essentially quit sending kids to the agency. Indeed, the reduced numbers have allowed TYC to meet minimum staffing requirements for the first time in years.

More Changes Needed to Keep Inmate Numbers Down

TYC's reduced inmate population at first seemed like it might be sustainable, particularly given that juvie crime is declining overall. The Sunset report notes that the "Texas juvenile arrest rate decreased between calendar years 2005 and 2006 (1.3 percent) following a decrease between calendar years 2004 and 2005 (8.3 percent)." Not only are arrests down, says LBB, Texas' overall juvie population is growing at a slower rate than in the past.

Even so, TYC's reduced inmate population will be shortlived unless more is done to reform the system. Today TYC operates at 6.5% below maximum capacity, and will slightly exceed max capacity in FY 2009, says LBB. But it's what happens after that which made me sit up and take notice. LBB predicts TYC's inmate population will resume fairly rapid growth in the near term, rising to 13.5% above apacity by 2010 and shooting up to 23.3% above capacity in 2012.

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, the plan must accommodate these new inmates instead of pretend they're just not coming. Downsizing TYC cannot result in a blatant, unfunded mandate for counties.

So the situation is this: Juvie crime is declining but total commitments to TYC will increase by about a quarter over the next four years as the agency's inmate population creeps back up toward their previous, higher levels. By contrast, LBB projects the increase in Texas' juvie probation population will be de minimus over the same period, with the number of juvie probationers overall expanding just .03% annually.These are not arguments for downsizing.

That said, the adult system predicted massive overcrowding just a couple of years ago, but reforms implemented by Rep. Madden, Sen. Whitmire and their colleagues staved off that increase for the foreseeable future by expanding treatment and diversion programs. The Legislature could do the same for TYC by beefing up diversion resources at counties, perhaps through the pilot grant program Sunset proposed. But unless such changes are enacted, merging and downsizing TYC seems premature and likely to renew the type of chronic overcrowding problems the agency has only recently overcome.

* * *

See related Grits posts:

• TYC Tidbits
• Most speakers at Sunset hearing oppose TYC, TJPC merger
• Merger won't solve all TYC's problems, may create some
• Sunset: TYC treatment programs failing miserably
  
• Sunset: TYC, county probation, don't gather, share enough information
• Would juvie probation be de-prioritized if merged with TYC?
  
• Will TYC-TJPC merger improve juvie corrections?
• Pondering the economics of TYC abolition
• Sunset's plan to abolish TYC
• What do you mean "abolish TYC"? A conversation with John Whitmire
• Self-paced learning at TYC the 'least effective' approach
  
• A closer look at the 'Missouri Model' for juvenile corrections
• TYC commitments to grow drastically despite declining juvie crime

SEE ALSO: The Texas Criminal Justice Coalition's written response to the Sunset Staff Report and TYC's official agency response.

TYC Tidbits

Two items related to the Texas Youth Commission deserve attention from Grits readers interested in juvenile justice: A guest column in the Abilene Reporter-News asks, "Is TYC Worth Saving?," while the Waco Tribune Herald reports that authorities are investigating five inmate on inmate sexual assaults at the TYC unit in Mart.

In other TYC-related news, Sunset Commission Chair Carl Isett announced they would leave the public comment period for Monday's hearing open until Friday at 5 p.m., so anyone who wants to get in their two cents worth about TYC, TJPC, or the Office of Independent Ombudsman (for that matter, also the Texas Commission on Jail Standards) should let the committee know what they're thinking. You can email comments to them at sunset@sunset.state.tx.us.

"Fast, Bold, and Lethal": Cartel assassins getting good at their jobs

The Washingon Post has a feature describing the squads of assassins working for multinational drug cartels, some of them former military and counter-drug personnel trained by American special forces, who have turned murder nearly into assembly-line duty in Juarez and other contested drug trafficking battlegrounds. ("In Mexico, assassins of increasing skill," Dec. 12). For the most part. these squads of assassins are used by cartels against one another battling over turf. But increasingly they also are targeting Mexican law enforcement who refuse to be corrupted. The story opens:

The hit was fast, bold, lethal. Jesús Huerta Yedra, a top federal prosecutor here, was gunned down last week in a busy intersection 100 yards from the U.S. border in a murder of precise choreography.

In Mexico's chaotic drug war, attacks are no longer the work of desperate amateurs with bad aim. Increasingly, the killings are being carried out by professionals, often hooded and gloved, who trap their targets in coordinated ambushes, strike with overwhelming firepower, and then vanish into the afternoon rush hour -- just as they did in the Huerta killing.

The paid assassins, known as sicarios, are rarely apprehended. Mexican officials say the commando squads probably travel from state to state, across a country where the government and its security forces are drawing alarming conclusions about the scope and skill of an enemy supported by billions of dollars in drug profits.

"They are getting very good at their jobs," said Hector Hawley Morelos, coordinator of the state forensics and crime laboratory here, where criminologists and coroners have been overwhelmed by more than 1,600 homicides in Juarez this year. "The assassins show a high level of sophistication. They have had training -- somewhere. They appear to have knowledge of police investigative procedures. For instance, they don't leave fingerprints. That is very disturbing."

Alejandro Pariente, the spokesman for the attorney general in Chihuahua state, said, "They are called organized crime for a very good reason. Because they are very organized."

The whole disturbing story is worth a read. Grits has pointed out other reports in the past that these same commando groups, most prominently Los Zetas, were training young gang members on the US side of the border as cartel assassins and agents of Mexican gangs. So far, the US side of the border has been spared that kind of daily carnage, but with competition over distribution routes heating up among multiple, powerful criminal gangs and the Mexican government unable to stop it, how long will that remain true?

Senate Dean promotes treatment options for nonviolent offenders

The Longview News-Journal has excerpts from a graduation speech given by Texas state Sen. John Whitmire to offenders who've completed the state's new DWI treatment program in Henderson ("Whitmire: Programs needed for nonviolent offenders," Dec. 16):

The chairman of the Texas Senate Criminal Justice Committee, said Monday that the state needs to be more proactive in creating programs for nonviolent offenders within the prison system.

State Sen. John Whitmire, D-Houston, told more than 130 graduates of East Texas Treatment Facility's DWI Recovery program — formed after Whitmire introduced its legislation in 2007 — that additional recovery programs are the ticket to reforming the state's prison system.

"We've done a real poor job dealing with nonviolent offenders," Whitmire said. "When you're out drinking and driving you put me, my family and others at risk. But when you're not drinking I don't think you're a threat to society."

The six-month program teaches DWI-convicted inmates from across the state life skills, alternatives to drinking and driving and the medical lifestyle and stress effects of alcohol.

The Department of Criminal Justice awarded the $8.9 million bid for the pilot program in January. In 2009, the amount will increase to $13.3 million, according to department spokesman Jason Clark.

Inmates who successfully complete the program go before the state's parole board, which decides to grant inmates' release or send them to another facility.

"This is an experiment in the state's eyes and I've got colleagues that don't believe in this," Whitmire said. "But I really want this to work." ...

Whitmire said preliminary data shows that many of the inmates are living successful lives since completing the program.

"This is not rocket science stuff," he said. "If you provide the treatment, they are going to do very well once they leave."

AG stops TDCJ conspiracy to commit federal crime: Cell phone jammer test canceled

The Texas prison system was planning to commit a federal crime on Thursday at the Austin state jail, but Attorney General Greg Abbott intervened - not with an arrest for conspiracy but with a polite note saying, basically, "Uh ... please don't violate federal law."

Readers will recall many historical instances where this crimefighting technique was effective - that's how they got Bonnie and Clyde, after all.

In any event, while this kid-gloves approach to conspiracy to commit a federal crime may sharply contrast with tough on crime rhetoric we're used to hearing from the Texas AG, it will likely be enough to prevent the testing of cell phone jammers designed to eliminate cell phone contraband inside Texas prisons. At the request of legislative officials, TDCJ planned such a test on Thursday, but Abbott now says if the agency goes ahead they "could be exposed to legal consequences."

Still, the conspirators are pushing forward, according to the Austin Statesman ("Cell phone jamming test off," Dec. 15):

Legislative leaders who supported the test were unhappy with the cancellation.

“I think it’s a good question why they’re backing up on this,” said House Corrections Committee Chairman Jerry Madden, R-Richardson. “But if they don’t want the test on their unit, fine, we’ll find someplace else to do it. We’re in the process of punting right now —looking for some place else to do it.”

Senate Criminal Justice Chairman John Whitmire, a Houston Democrat who earlier prompted the crackdown on smuggled prison cell phones after receiving calls — and a death threat —from a death row convict, said prison officials should go ahead with the test. “This shows some very indecisive leadership at TDCJ, and it proves my point that I just don’t think they get it on this issue,” he said.

To be fair, it doesn't seem right to critique TDCJ as "ineffective" or "indecisive" for complying with the Attorney General's interpretation of whether or not the test would violate the law: We already knew it did. Besides, cell phone jammers are already used in some theaters and other private sector settings; they're fairly well known to work as advertised and I don't see why they need to be "tested."

What's needed instead is for the US Congress to change the 70+ year old statute, and that's not going to happen by this Thursday. Otherwise, testing the jammers without permission when they know it's against the law would amount to a bizarre and pointless act of civil disobedience by TDCJ; by any measure that's a rickety limb to ask a state prison system to crawl out on.

UPDATE: The FCC changed its mind and now says a test would be okay, though the AG points out they've cited no legal authority to explain the flip flop.

Most speakers at Sunset hearing oppose TYC, TJPC merger

I spent all afternoon at the Texas Youth Commission Sunset hearing mentioned here - including offering oral testimony myself - and it was hard to not leave with the impression that the proposal to merge TYC and the Juvenile Probation Commission faces a steep, uphill climb.

By my count, only one person testified in favor of the merger besides Sunset staff themselves, and many people (including quite a few chief juvenile probation officers) argued against it, suggesting the recently reorganized agency be given time to work out its kinks.

Both Sunset Commission members Ruth Jones McLendon and Juan "Chuy" Hinojosa said they opposed merging the agencies. Sunset Chairman Carl Isset also mentioned he'd received a letter from influential state Rep. David Swinford opposing the idea.

MORE: See related MSM coverage from the Dallas News and News 8 Austin.

UPDATE: A link to the Sunset hearing may be found here. Technical difficulties botched the section of the hearing covering the Commission on Jail Standards, but the portion on juvenile justice begins around 2:54 hours into the recording.

Jail Standards Commission may prioritize riskiest jails

The Sunset Commission recommended that the Texas Commission on Jail Standards evaluate county jails by risk factors and focus more regulatory attention on counties with higher risks.

I'd like to see TCJS more engaged with counties which have overcrowding problems to develop diversion strategies and solutions that reduce unnecessary incarceration. They also need more authority and staffing to monitor jail healthcare. Sunset's third recommendation seems to move in that direction, suggesting an expansion of the Commission's "technical assistance" functions for local jails.

See the Sunset staff's report (pdf) on TCJS.

Is county jail the right answer for teen suicide?

When an 18-year old girl attempts suicide, is county jail the right place to treat her?

Paul Knight at The Houston Press has an excellent story examining in detail a case where that's exactly what happened and closely tracks the young lady's struggles with depression since then and her journey through the justice system.

Sunset public hearing today: Merger won't solve all TYC's problems, may create some

Today the Sunset Advisory Commission will receive public testimony regarding several agencies including the Texas Jail Standards Commission, the Youth Commission, and the Juvenile Probation Commission, among others (see the agenda). A live broadcast of the hearing will be available online here beginning at 9 a.m.. Also, see the public comments submitted to Sunset on the topic.

Most eagerly watched will be the final agenda item where they discuss the Sunset staff's proposal to merge TYC with the Juvenile Probation Commission. Now that I've had a chance to thoroughly consider the staff report (pdf) and talk to a number of people about the plan, I've reached the conclusion that simply merging the agencies won't solve the myriad problems described by Sunset staff facing Texas youth prisons.

What's more, to the extent a merger is done with an eye toward reducing expenditures, it could actually make matters worse because most of the major problems identified by Sunset staff - inadequate mental health treatment, lack of special ed instruction, oversized facilities, etc. - require more resources, not less, to solve. Cost savings predictions also ignore the need for investment in other areas like public schools and healthcare that affect juvenile justice.

In addition, Sunset staff (who are government efficiency wonks, not juvenile justice experts) failed to advocate a shift to smaller, Missouri-style facilities or a rehabilitation model that conforms to widely acknowledged best practices aimed at reducing recidivism. The gubernatorial Blue Ribbon Panel's detailed suggestion (pdf) in 2007 for reforming TYC along these lines was sadly defenestrated by the adult-prison transplants who were running the agency at the time and was never revived.

Given my druthers, I'd prefer Sunset had revisited those Blue Ribbon Panel suggestions - they're proposing to take the agency in a different direction than the one suggested by most juvie specialists.

The Sunset report also downplayed too much (IMO) the financial impact of downsizing TYC on counties at a time when the Legislative Budget Board says youth inmate populations will be rising. There's a pilot grant program suggested to reimburse counties for costs, but it appears underfunded and speculative whereas if more TYC kids must be handled by counties, those costs will be specific and concrete.

Likely most counties would seek to identify private residential placements to manage these offenders, but the truth is there simply isn't enough private capacity out there right now to pick up the slack if LBB's inmate population projections hold. The Sunset report and the LBB projections, as far as I can tell, cannot be mutually justified - something's got to give.

See related Grits coverage:

• Sunset: TYC treatment programs failing miserably
  
• Sunset: TYC, county probation, don't gather, share enough information
• Would juvie probation be de-prioritized if merged with TYC?
  
• Will TYC-TJPC merger improve juvie corrections?
• Pondering the economics of TYC abolition
• Sunset's plan to abolish TYC
• What do you mean "abolish TYC"? A conversation with John Whitmire
• Self-paced learning at TYC the 'least effective' approach
  
• A closer look at the 'Missouri Model' for juvenile corrections
• TYC commitments to grow drastically despite declining juvie crime

SEE ALSO: The Texas Criminal Justice Coalition's written response to the Sunset Staff Report.

Prosecutor, defense counsel jobs substantially differ

Dallas Criminal Defense Lawyer Robert Guest has worked as both a prosecutor and a criminal defense attorney and says there are more dissimilarities between the jobs than you might imagine. "Does my prosecution experience help my current clients?," he writes. "Yes, but not as much as more defense work would have." See his insightful analysis of the major differences.

RELATED: Scott Greenfield at Simple Justice elaborates on Guest's epiphany. Mark Bennett adds his comments regarding Guest's post and the biases of prosecutors.

Texas Voices profiled; broad sex offender registry criticized

Doc Berman points to an article ("Texas group fights sex crime's stigma," Dec. 14) by the Houston Chronicle's Lisa Sandberg about the group Texas Voices, made up of sex offenders, their families, and others who believe that

community notification laws fail to protect the public, because they don't distinguish dangerous predators from otherwise harmless men and women who foolishly had sex with underage lovers, served their sentences and don't need a lifetime of public scrutiny. ...

Texas Voices is finding agreement in unusual places.

Ray Allen, the former Texas House Corrections chair who helped shepherd into law tough sex registration bills, said he and his colleagues went too far.

"We cast the net widely to make sure we got all the sex offenders. Now, 15 years on, it turns out that really only a small percentage of people convicted of sex offenses pose a true danger to the public," he said.

Sen. John Whitmire, D-Houston, the Senate Criminal Justice chair, said, "If we're not careful, we're going to have a sex offender registry that is so large and so encompassing, it's not much good."

Texas Voices members know their chances for success hinge on politicians risking their careers on a population with just about zero political clout.

Sen. Florence Shapiro, R-Plano, who has been a driving force behind the community notification laws, isn't ready to assume that risk. She insists that if the registry is too large, it's because there are too many people out there committing sex crimes.

Dozens of offenders, along with moms, dads and significant others, show up for the monthly Texas Voices' meetings, sharing stories and plotting strategy.

The most committed spend days and nights scrolling through the registry seeking to recruit new members. Nearly 1,000 offenders have been contacted, and about 300 have heeded the call to action, organizers say.

The article mentions that most states' sex offender registration laws begin after some heinous crime, even though they're often written to capture a wider array of offenses:

"If you look at almost all the laws out there on the books, they usually have been enacted following a horrible crime, a sexual assault and murder, which represent a tiny fraction of sex offenses," said Dr. Fred Berlin, founder of the John Hopkins Sexual Disorders Clinic.

I wish Sandberg had mentioned that the heinous crime which spawned Texas' sex offender registry actually resulted in a false conviction that was later overturned by DNA evidence. She writes, "Texas' first community notification law was passed in 1995 and named for Ashley Estell, a 7-year-old girl snatched from a North Texas playground and murdered by a sex offender parolee." But she failed to add that the man convicted of that crime - Michael Blair - was exonerated this year and did not commit the offense. As I've written previously, "to the extent [Texas' registration] laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception."

I'm in broad agreement with the group's stated agenda and agree the issue deserves this kind of focused advocacy effort. I'll look forward to seeing what Texas Voices will be working on during the 81st Texas Legislature.

Why is the solution to every social problem more cops, courts and punishments?

Our buddy Charles Kuffner has a couple of posts up at Off the Kuff that, following up on our discussion of Rep. Solomon Ortiz Jr.'s graffiti enhancement bill, made me think this morning about how Democrats (really both parties, but I'm picking on Kuff today) need to revamp their methods to stop using the justice system to address social problems.

If the only tool you own is a hammer, everything looks like a nail, the saying goes. And thus for too long a bipartisan tool shortage has encouraged reformers of all stripes, and from all points on the political spectrum, to reach first for solutions involving police, courts, fines and punishments instead of other less coercive strategies.

Kuff offers up two workaday posts on subjects that even he says should be noncontroversial - opposition to smoking and use of child booster seats in parents' cars. Neither are bad goals in and of themselves. Nearly everyone agrees smoking is bad for you, and few parents will dispute the benefit of booster seats when the case is made for them.

Yet in both instances Kuff suggests using the criminal justice system to impose by force a policy with which most could be convinced to comply on its merits if the case were forthrightly made.

Discouraging smoking and encouraging use of booster seats are meritorious things, but why are fines and criminal enforcement the only way to promote those public goods? I don't think they are. Perhaps this is a case where the road to hell is paved with good intentions?

We are living in an absurdist period of overcriminalization spurred largely by using the justice system to solve social problems that would better be resolved through provision of public services, expanded healthcare access, business regulation, public education and a variety of other means which are too often ignored. Texas has labeled 2,324 separate acts "felonies" (including eleven involving oysters), plus thousands more misdemeanors and many more local, municipal ordinances enforced with Class C fines.

That's not the only possible way to address these problems, though frequently it's the only approach the government and members of both political parties bring forward. At the Legislature, that's because new crimes and punishments are falsely claimed to have zero budget impact, while other options would require lawmakers to weigh the relative importance of social problems against each other in the budget process.

Neither of Kuff's public policy goals inherently require using criminal law enforcement. A smoking ban on restaurants, e.g., to me is an issue for a zoning commission, not the police. (I know Houston doesn't have one, but that's partially because they deal with stuff like this via the cops and homeowners associations instead of code enforcers.)

And with booster seats, why the need for a criminal law and a fine? Is there an assumption by proponents that some parents don't love their children and won't do what's best for them unless coerced through threat of punishment? Perhaps people stopped without a car seat for their five-year-old should simply be given one and sent, safer, on their way?

Chuck's motives are pure and I don't doubt the world would be a better place if more kids had booster seats and fewer people were smokers. But the means of perfecting our society cannot be only criminal punishment of those who fail to comply with what the political class thinks is best for them. That's where Kuff and I part ways on these topics.

5th Harris County DNA exoneration an indictment of eyewitness IDs

Dallas has witnessed so many DNA exonerations (more than most states) mainly because the courts kept old biological evidence from rape cases for much longer than other jurisdictions so investigators could re-examine old cases. In Houston, all that old evidence was mostly destroyed or contaminated in the state's possession, so only a relative handful of more recent cases still have biological evidence available for testing.

Still, Harris County has seen its share of DNA exonerees, including a terrible story that came out this week from the Houston Chronicle ("5 years lost in prison before DNA got tested," Dec. 12):

Five years after he was wrongfully convicted of sexually assaulting a child, Ricardo Rachell will be released from custody today.

Prosecutors and Rachell's attorney appeared before state District Judge Susan Brown this morning to request the 51-year-old Rachell's release on a personal recognizance bond after DNA tests cleared him of committing the 2002 attack.

The judge agreed and the Harris County Sheriff's Office began the process of organizing his release.

Rachell, who was brought to Houston Wednesday night from a prison in Tennessee Colony, in East Texas, did not attend the hearing, nor did any members of his family.

After the hearing, Assistant District Attorney Roe Wilson said her office will work to ensure that Rachell's conviction is overturned.

"Our goal is to make sure justice is done. And today, that means making sure Mr. Rachell is out of custody and returned to his family," Wilson said.

I'm glad to see a Harris County prosecutor express the attitude that her goal is to pursue justice and not just convictions. Not only did the state fall down on the job, Rachell's defense attorney was given a police report informing him the biological evidence existed, but he claims he never saw that information and never requested testing.

Rachell's case was yet another instance of a false conviction caused by faulty eyewitness testimony, this time from two child witnesses:

In 2003, jurors convicted Rachell, who was severely disfigured by a shotgun blast to the face years before, largely based on eyewitness testimony from the 8-year-old victim and one of his friends.

Five years later, DNA tests show that Rachell could not have committed the crime and instead point to another man who is serving time for committing similar attacks, Rachell's lawyer Deborah Summers said.

Rachell has a serious facial disfigurement that was not identified in pre-identification witness descriptions by either child and which the actual perpetrator didn't share, but bizarrely, that didn't stop police putting his photo in a lineup nor a jury from convicting him. It's hard to imagine an 8-year old would both a) be able to identify his assailant and b) not have noticed the facial disfigurement and told investigators when he made his original statement. What could police investigators have been thinking to suspect this guy in the first place?

A recent Justice Project study found that 88% of Texas law enforcement agencies have no written policies on eyewitness ID procedures and the majority of those that do don't utilize best practices (like blind administration and cautionary warnings to witnesses that the suspect may not be there). DNA evidence has provided a unique window onto the causes of false convictions, with incorrect eyewitness IDs topping the list. However, there's no biological evidence available in the vast majority of cases where eyewitness testimony is used to secure convictions. That means, inevitably, there are quite a few more folks like Mr. Rachell languishing in prison who are just as innocent but have no way to incontrovertibly prove it.

MORE: I'm reminded by this terrible episode that corroboration of victim testimony is not required in Texas to obtain sex crime convictions, and while I understand this is because such cases are otherwise difficult to make, Rachell's conviction demonstrates why that's problematic: Two boys pick a man out of a lineup despite obvious discrepancies with the original witness description. No other evidence points to his guilt, but a jury convicts an innocent man based on their testimony. We've seen this over and over.

During Texas' 80th legislative session when the House was considering creation what turned out to be an unconstutional death penalty provision for child rape, I suggested adding language requiring external corroboration for victims and eyewitnesses in cases where they did not previously know the defendant, and Rachell's case seems to me to cry out for such a reform. If two boys can misidentify someone with such an obviously different visage from the actual perpetrator (how could they not notice that?), clearly their testimony was utterly worthless on its own; they could have (and did) identify anybody the police put in front of them.

End of the Week Roundup

I thought I'd take a moment to point Grits readers to several fascinating stories I might blog about if I had more time:

• By the Numbers. Doc Berman provides links to loads of fresh data from the Bureau of Justice Statistics about prisons, probation and parole.

• Payback. In Austin, the city settled a lawsuit with the family of Daniel Rocha, an unarmed suspect who was shot to death by Austin police, for $1 million

• Closure and Transparency. At the Travis County jail, an inmate's family is trying to find out how he died in county custody, demonstrating once again why Texas' open record statutes need to be (re)strengthened for investigations that don't result in prosecution.
  

• Exonerated. Pegasus News has an interview with Dallas DNA exoneree Stephen Phillips, who was one of the men whose DNA tests were denied by former DA Bill Hill and the courts before Craig Watkins took office in 2006 and reversed the decision.

• Human Trafficking. As the Texas Legislature prepares to consider legislation to prevent "human trafficking," I was interested to see this post from the Federal Crimes Blog and also Douglas McNabb's prior coverage on the topic.

• Subways vs. Prisons? Eric Lotke from the Campaign for America's Future has a great column that opens, "China has opened a new subway system every year for the past six years. The U.S. has opened 45 new prisons and jails. Who’s setting up to lead in the 21st century?"

• The Chaplain. The Bandera County Courier has a feature on a local pastor who's been operating a jail ministry at the county jail for the last 25 years.

Explaining the decline in Harris County death sentences

A good discussion broke out over at Doc Berman's Sentencing Law & Policy blog about data from the new report by the Texas Coalition to Abolish the Death Penalty which shows the death penalty on decline in Texas, at least regarding overall totals. Most notably, Harris County sent no one to death row in 2008, though they've sent as many as 15 people per year in the past. Indeed, "While Harris County still accounts for a third of all Texas inmates awaiting execution (116 of 344), it only has sentenced seven people to death in the last four years." Why is that?

The study looked at new defendants sent to death row, not just the number of executions, so delays in cases because of the Baze lethal injection controversy don't play into the analysis.

Doc Berman said "I assume these remarkable numbers reflect the tendency of prosecutors seeking few death sentences and juries handing out fewer death sentences," and I think both those things are true. The Quintero verdict shows juries are responsible for at least part of that trend, which may also be influencing prosecutor decisions.

I suggested another reason for the decline in the comments:

there's a third cause for the declining number of Texas death sentences: New standards in the wake of the 2001 Texas Fair Defense Act to ensure capital defendants have adequate trial counsel. Better lawyers on the front end means fewer death penalty results on the backside, whereas in Harris County, in particular, the quality of counsel in such cases was historically, notoriously low before that law passed.

As evidence of this trend, more than 60 counties in West Texas recently banded together to jointly fund a capital public defender program, solving the dual problem of 1) the large cost of DP defense and 2) the lack of qualified counsel in many rural counties. So some of this may represent shifting public attitudes, but it may also demonstrate what happens when capital defendants receive effective, zealous legal representation compared to a more lackadaisical variety.

(See more about the West Texas capital public defender program - accurately dubbed "murder insurance" by proponents - in this recent Lubbock Avalanche Journal story and also this one.)

Another commenter noted, "The real reason is that Texas recently added life without the possibility of parole as a sentencing option." An anonymous lawyer suggested more reasons:

Additionally, a relatively new method of jury selection, the Colorado method, helps counsel get -- where they are adult enough to know they won't win the guilt phase -- life verdicts much, much, more often. Finally, a change in culture in the defense bar where we call a "win" in a capital case not a NG / "not guilty" but any verdict other than death encourages lawyers to seek life at all costs.

I've not heard much about institution of the "Colorado method" of jury selection as part of this debate and hope to learn more about that later.

Finally, yet another insightful commenter suggested what's likely the biggest reason for Harris County's dip in death row contributions:

For Harris County anyway, political turmoil is probably the largest reason no one was sentenced to death in 2008. Former DA Chuck Rosenthal resigned in February 2008 and an interim DA was appointed until an election could be held in November. I don't have the numbers, but I wonder how many actual death-penalty trials were held in 2008 in Harris County, rather than being delayed so that a new, elected DA could make the necessary decisions.

That's probably true. There's a good chance interim DA Ken Magdison chose to slow down these high profile cases in deference to the office's past dysfunction and its new incoming leader.

When a major change occurs in public policy outcomes - like a county sending up to 15 defendants per year to death row then none just a few years later - often there's no one reason but instead it results from the conjunction of many trends. That's what appears to have happened in Harris County, where I think all of these described trends contributed to this year's surprising goose egg for new death sentences and Texas' overall trend toward decline.

Boosting penalties wrong approach on graffiti

Given this blog's past focus municipal graffiti policies (see below), I was interested to receive a copy of a press release from Rep. Solomon Ortiz, Jr.'s office about HB 385 proposing penalty enhancements for certain graffiti crimes. From the release:

"The graffiti problem is completely out of hand in Corpus Christi ," Ortiz said. "Vandals are indiscriminately tagging homes, buildings, and fences throughout the city, without any concern for public or private property. This bill gives law enforcement the tools it needs to combat this blight on the community."

HB 385 adds a felony graffiti offense to the list of offenses eligible for prosecution under the organized crime designation, allowing prosecutors to seek higher penalties for gang-related graffiti.

"The Corpus Christi Police Department (CCPD) knows that much of the graffiti in Corpus is connected to gang rivalries," Ortiz said. "This provision will allow CCPD to go after and break up graffiti gangs."

The bill also changes the definition of graffiti to include markings made by any kind of paint, instead of just aerosol paint. In addition, it adds graffiti to the list of crimes where contraband can be seized, and expands the list of contraband items to include cameras and laptops that graffiti taggers use to publicize their crimes on the internet.

Ironically, Ortiz's approach to graffiti builds on Corpus Christi's failures at graffiti enforcement instead of capitalizing on its successes. Corpus Christi is already doing much more on the civilian side to combat graffiti than the police are doing to address it. This is a purely symbolic bill that will do little to reduce real-world graffiti, even in the smallest quantum.

Corpus has an excellent anti-graffiti program run by the city. By contrast, police there have identified dozens of individual taggers but it's both difficult and, overall, ineffective to make those cases.

That's why Corpus police want bigger penalties for the handful of taggers they occasionally do catch, but that's not an effective anti-graffiti strategy, even if it may be more emotionally satisfying for police.

Think of the cost benefit analysis: Felony graffiti is already a mandatory two-year minimum state jail felony. Enhance that upward and say an offender is given a 5 year sentence. That's about $90,000 in current dollars just for TDCJ incarceration costs (forget all the myriad collateral consequences and court expenses). By comparison, Corpus Christi spends less than $80K on a truck to go around cleaning graffiti up, a tactic which a) actually reduces graffiti (unlike incarceration) and b) is popular with homeowners and businesses who're victimized.

So to incarcerate one person under this proposal would likely cost more than doubling Corpus Christi's graffiti cleanup capacity. Can that really be a wise investment of taxpayer dollars? Corpus Christi already arrests a lot of people for graffiti, and it hasn't stopped the problem yet.

The other portion of the bill - making cameras and laptops used to publicize tags into contraband - appears to defy the notion that the legislation targets gangbangers. Instead, who you're more likely to rope in with that tactic is a serious artist with a rebellious streak who dabbles in graffiti. Some taggers have famously gone on to become world reknowned artists. Would we want to prevent, for example, the emergence of a Texas Banksy or Lee Quinnones?

Nobody would view a website of gangbangers posting their tags - trust me when I say it's a chore to draw web traffic and that type of content won't cut it. This aspect of the bill targets only artistic graffiti, not the gang stuff.

Finally, I think about the anonymous web author (including this one in particular) who may or may not be a tagger but publicizes illegal graffiti using photos and the web. Will they be subject to investigation to see WHETHER they put up any of the tags on the site just because s/he's publicizing them? Their anonymity means it's unknown whether they're responsible for any of it; would that be probable cause for a search warrant to seize a computer under HB 385? Possibly - it's opening the door to a slippery slope.

In general I'm biased against solving social problems with criminal penalties, which, is how I view this legislation. Focusing on criminal enforcement expends resources on a strategy that simply has never, anywhere on the planet, reduced graffiti from the time of the Roman Empire until today.

That said, I'm also adamantly against creating more nonviolent felony crimes, so I'll admit my position on this bill is biased by that perspective. Texas currently has labeled 2,324 separate acts felonies and for too long relied too heavily on incarceration as the sole means for addressing social problems. Particularly regarding artistic graffiti (as opposed to the gangbanger variety), I'd rather see leaders who are asking, as a Saudi prince recently asked in response to a graffiti upsurge in Jiddah:

"What have we done for young people? Have we asked them what they need or want?" said Abo-Umara, wearing a flowing white head scarf and long robe. "Until I talk to them and find out why they are scribbling all over Jiddah and do my part in offering them the services we're supposed to provide, then I can't punish or criticize them."

If I were going to write an anti-graffiti bill, my own preference would be to REDUCE felony graffiti to a Class A misdemeanor and use the savings in the fiscal note for grants to buy graffiti cleanup trucks like they have in Corpus and fund graffiti abatement programs staffed with probationers on community service. That approach would actually reduce graffiti in Texas, whereas, based on all historical examples, boosting penalties likely will not.

See related Grits posts:

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

Contraband prosecutions

After all the hubbub about contraband smuggling in state prisons, it's ironic that the only recent example we've seen of indictments against prison staff for contraband comes from a privately run federal facility. AP reports that:

A former correctional officer at the Ector County Correctional Center faces a federal bribery charge for allegedly supplying an inmate with three bags of marijuana and a cell phone in exchange for about $450, the U.S. Department of Justice said Wednesday.

Andrew Allen Zehr, 23, faces up to 15 years in federal prison and a maximum $250,000 fine if convicted of the offense alleged to have taken place in late October. ...

Zehr was employed by New Jersey-based CiviGenics, otherwise known as Community Education Centers. The company is contracted by the county to manage the federal holding facility inside the Ector County Courthouse, the Odessa American reported Tuesday for its online edition.

The Texas Senate Criminal Justice Committee was told in November that TDCJ has caught 46 guards smuggling cell phones into prisons since a system-wide lockdown was implemented this fall, but we've heard nothing yet about prosecutions in any of those state cases.

Will Lege revisit Family Code after the Great Eldorado Polygamist Roundup?

This post from Kurt Schulzke over at Contraries (formerly I Perceive) questions whether the Texas Family Code may allow authorities to too easily remove children without cause, as happened in the Great Eldorado Polygamist Roundup.

The fact that appellate courts threw out most of those cases might lead one to think the law was fairly plain, but instead it was state agency actors and local jurists who engaged in such sweeping overreach. Maybe so. But there were many problematic aspects to that absurdist incident and the courts only ruled against CPS on one of them. It's still troublesome that CPS would even think they could take so many kids without the slenderest reed of specific evidence about their families, all based on what turned out to be a hoax phone call.

Part of me would like to suggest that the Family Code deserves revision in light of the Great Eldorado Polygamist Roundup, but the politics surrounding that case were a complete zoo and in truth, I have no idea how the Texas Legislature would deal with that case if asked to consider what happened. State Rep. Harvey Hildebran was a key instigator in pushing state action against the West Texas polygamists, and it wouldn't surprise me (though it would disappoint me) if the Lege endorsed a bill that made it easier to engage in religious-based persecution of families.

For that reason, maybe it's better to let sleeping dogs lie - to be thankful the appellate courts rose above gross politicization in this case and avoid seeking any legislative remedies.

RELATED: See this news story about use of the same tactics deployed against FLDS being used against non-polygamous citizens in an abusive fashion.

US Attorney pitches reentry programs for gangs on his way out

Bob Ray Sanders recently interviewed Richard Roper, the outgoing US Attorney for Texas' Northern federal judicial district, who surprised the Startlegram columnist by pitching:

a gang prevention and intervention program that he hopes doesn’t disappear once he is gone.

It is true that Republicans have a reputation, true or not, of focusing only on enforcement and rarely championing the idea of putting money and other resources into prevention. Even many police officers consider such programs "social work" that they simply don’t want to do.

Roper, pointing to studies in front of him conducted by the University of Texas at Arlington, noted he was quite proud of the Dallas/Fort Worth Anti-Gang Initiative for which he received a $2.5 million grant targeted to areas where the crime activity was the worst.

The program has a three-pronged approach — enforcement, prevention and re-entry — and in every area the numbers are impressive.

Comparing the last six months’ data (January to June 2008) with the first six-month period, gang-related arrests increased 82 percent, while certain gang related activities showed dramatic decreases: 29 percent decrease in aggravated assaults; 57 percent drop in robberies and 55 percent decline in aggravated assaults with a firearm. ...

The statistics on the prevention and re-entry modules are even more compelling to me. For example, the total number of youths participating in the prevention program was 2,467, with 69 percent of them completing it. Of that group, the number of youth who have offended or re-offended is zero, according to the study.

The study also shows a marked increase in school attendance and improved family relations for these young people.

"The recidivism rate drops tremendously when there is a re-entry program that includes training, mentoring and job placement," Roper said.

Mexico debates how to stem police corruption; America's hour for not comprehending

The MexFiles clues us in to a public policy debate in Mexico over the structure of police and how best to fight corruption:

There is a legislative battle right now between PAN and the Calderon Administration on one side, and PRI, PRD and the legislative left on the other over police reforms. The Calderonistas are pushing for a single national police force under the control of the Federal Executive and the opposition parties, for varying reasons, agrees that better police coordination is needed, but rejects a consolidated police.

In this case, it’s the leftist parties that are fighting the consolidation, and — if you read the rightist, or pro-PAN publications — is to maintain local government control (read “patronage”) where opposition parties have the upper hand. For the lefties, it’s also a matter of civil liberties. Police answerable only to the Federal Executive could be used to quash legitimate dissent. Of course, local coppers are used to put down dissenting movements now… but when they do, they risk their own electorial advantage if the movement is indeed popular with the locals, and — if they are unable to control the movement — then they need to compromise with the dissenters or open themselves to federal control (and risk removal from office for “inability to govern”). I tend to prefer a few pockets of anarchy and the risk of some violence to a police-state, but that’s a personal thing.

A more conservative argument against federalizing the police is also a basic capitalist one. If I were in the gangster biz, I’d rather only have to bribe one or two key officials, than handle the bribes for local police chiefs, state police inspector generals, federal police commanders — any one of whom might, in a fit of honest pique, undo my dirty work. A unitary police force would make bribery and corruption a much simpler task.

For the honest coppers, and those of us who support them, the less unified the police, the better. If there are corrupt forces, it’s easier to replace, say, the transitos of Fulanatitlan, than to pick out the bad apples buried omewhere in a huge police apparatus “controlling” a country of 120,000,000

See the rest of the post which includes excerpts from a Mexico City newspaper columnist who looks on in wonder at the new "Merida Initiative" money and understandably laments that, "The Americans seem to think, just about every time, that this time is going to be different."

That line not only sums up the last 40 years (at least) of US drug policy toward Mexico, but also reminds me of a these verses from one of my favorite Mexican painter/poets, Alfredo Castañeda, published in his 2005 Book of Hours:

Hour For Not Comprehending

And like the first time, I ran as fast as I could.
And like the first time, I fell at the base of the tree.
And like the first time, I got up uttering horrible blasphemies.
And like the first time, I wept until the sun went down, taking
xxxxxxxxxxxxxxxwith it all that bitterness
And like the first time, too, I thought:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxTomorrow I will make it at last.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxTomorrow will be my day

Surely as it regards the drug war and Mexico, this is America's "Hour For Not Comprehending."

Texas not adequately monitoring SAFP program

The Austin Chronicle says criticisms of the state's Substance Abuse Felony Punishment (SAFP) program are falling on deaf legislative ears, airing complaints that female SAFP inmates are routinely called misogynist names and allegedly subject to tortuous treatment methods, citing a Nov. 13 Senate hearing that took limited testimony on the topic.

Earlier this year, following the initial reports of inmate charges, Whitmire's committee announced that this interim hearing would focus on SAFPF procedures. But by August, specific mention of SAFPF had dropped off the hearing agenda. Asked why, a committee aide said: "There's not enough evidence. ... We're not going to hold hearings based on your article" – or based on the growing pile of inmate testimonials, apparently.

At last month's Senate hearings to review, among other things, the state's privately run prisons and related programs, Whitmire was caught off guard by the testimony of Kerry Wolf, former inmate of the Hackberry "special needs" SAFPF unit in Gatesville. "Obviously, you've come to support SAFPF," the senator began. "Did it work?" Wolf answered, "I was appalled by the human rights abuses and torture that went on in the name of treatment." She'd sat through tighthouse herself. "I saw inmates who were already mentally fragile losing their minds, running around, tearing out their hair, falling out of chairs onto the floor, having seizures, fainting, or hallucinating," Wolf said. As for "peer-driven" therapy, she told the committee, it was "Lord of the Flies run amok."

But Wolf was the lone SAFPF critic that day. A dismissive Whitmire implied that she'd been out of SAFPF too long for her testimony to matter, sighing in relief, "Ohhhhh ... there's been a lot of changes since then" (Wolf was in SAFPF from 2001 to 2002). Whitmire quickly lost interest, and during most of her testimony, he fidgeted and whispered to an aide. Michael Giniger took the mic and promptly discredited Wolf. "I am vice president of Gateway Foundation, the organization that this woman claims tortures people in our SAFPF facilities, which we don't. I ... tell you as I told you before, the SAFPF programs that are offered here in Texas ... are by far the best offered in the country." He pointed to 2003 "outcome studies," conducted by the Texas Criminal Justice Policy Council, which showed "astonishingly good outcomes." Unsurpris­ing­ly, Whitmire didn't point out that those studies also covered the years when Wolf was at SAFPF. Wolf left the hearings in tears. "I can't stand to listen to this," she said.

I have no way of knowing what's going on inside SAFP treatment programs, but I can say with certainty there's a significant problem if there have been no outcome studies to measure the program's effectiveness since 2003. Why in heaven's name not?

I realize Tony Fabelo's now-defunct Criminal Justice Policy Council did the last study and that agency no longer exists. But it's pretty much nuts to me that nobody at TDCJ or the Lege insisted that ball get picked up - how can we not be analyzing Texas' main in-prison treatment program to see if it works or if it needs improvement?

Texas has expanded its treatment capacity significantly since 2003, largely on the premise that evidence based treatment practices will reduce recidivism. I tend to agree with that premise, but it's just a hypothesis until tested in the real world, and we can't measure and test whether the program works or not if no one is comprehensively examining SAFP outcomes - the same can be said for the new treatment programs installed in 2007.

I hope Sen. Whitmire is right that complaints of abuse are dated or overstated, but the exchange at the November hearing revealed a shortcoming in the state's oversight of treatment programs that needs to be addressed in a more systematic, ongoing way.

Sunset: TYC's treatment programs failing miserably

Ed. note: This is the latest installment in a series analyzing highlights from the Texas Youth Commission/Juvenile Probation Comission "Sunset" staff report released last month. The Sunset Commission will meet on Monday, Dec. 15 in Austin to receive public comments regarding the report.

Some of the most critical sections of TYC's Sunset Commission staff report (pdf) relate to shortcomings in the agency's treatment programs. Although these criticisms were described as part of a recommendation to merge the agency with the Juvenile Probation Commission, I'm not sure exactly how either merging the agencies or shifting some of the kids to county control will directly improve limited treatment access or low success rates. Even so, by the measures Sunset staff looked at, TYC's treatment programs - both general and specialized - can only be described as a colossal failure:

TYC cannot ensure that youth with identified needs receive treatment or that treatment programs are effective. The Youth Commission identifi es more youth in need of specialized treatment programs than it serves, as shown in the chart, TYC Specialized Treatment Enrollment and Completion. For example, of the 284 youth TYC identified 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. Despite the documented need for more treatment, in fi scal year 2008, the agency only used 61 percent of its specialized treatment budget. TYC received funding for an average daily population (ADP) of 934 specialized treatment beds, and only served an ADP of 571 youth, leaving 363 treatment beds vacant. While the agency explains this as a result of its reduced population, staffi ng vacancies, and closed facilities, failure to use these beds meant that youth in need went untreated.

Internal policies and practices may contribute to low enrollment and completion rates for specialized treatment. Youth identifi ed with multiple treatment needs typically only receive residential treatment for one of their needs. TYC’s case management standards require youth to be removed from some treatment programs for behavioral problems or failure to progress, which may prevent the most troubled youth from receiving treatment.

The Youth Commission’s specialized programs show low success rates, and the general treatment program cannot be evaluated yet. Recidivism data for these specialized treatment programs has not always supported the programs’ effectiveness. For example, in 2007 youth who completed sexual behavior treatment had higher recidivism rates than youth who did not complete treatment. TYC notes that it has recently adopted a new, research-based chemical dependency curriculum that it hopes will be more effective, but its impact cannot yet be shown. (pp. 16-17)

A chart on page 17 of the report informs us that while 71% of TYC inmates who need chemical dependency treatment get it, that number drops to 32% for offenders with mental health needs.

Houston appellate courts may be next to turn blue

Analyzing recent election returns, Kuff looks toward 2010 and speculates that Houston's First and Fourteenth Courts of Appeal could see Democratic sweeps in two years similar to the raft of new Dem judges elected in Harris County last month and in Dallas in 2006.

New President means new 4 new US Attorneys in Texas

With a new president about to assume power, Texas will soon see four new US Attorneys as Bush's appointments are replaced by Obama's in the early days of his tenure. The Dallas News has a story describing the jockeying among four possible candidates for US Attorney in the Northern District:

Three – Larry Jarrett, Terri Moore and Mike Snipes – are former assistant U.S. attorneys, and one – Sarah Saldaña – is currently a federal prosecutor. All are Democrats and have sought local political office, one successfully.

I've not seen any speculation about possible US Attorney replacements in Texas' other three federal judicial districts. Readers with any knowledge on the topic, please share it in the comments.

Searching for snitches in the want ads?

Police in Albuquerque, N.M. have become so reliant on snitches to solve cases that when they couldn't generate enough informants organically they began to advertise in the local paper, we learn from USA Today:

The Albuquerque Police Department put a want ad in the city's weekly newspaper for "people that hang out with crooks to do part-time work."

"Make some extra cash! Drug use OK. Criminal record? Not a problem." The ad in the Weekly Alibi prompted 93 calls during its two-week run before it was taken down last week, police spokesman John Walsh said.

He said some calls yielded valuable information in a drug investigation and two violent crime cases. Walsh said the ad will run again "as soon as the detectives feel they need the help" and it could become a model for other agencies.

That's just bizarre! Usually informants' connection to police occurs because of a specific case and the needs of a particular investigation, but in Albuquerque they're literally soliciting snitches in the want ads.

There are many problems with this really bad idea, but just for starters, can you believe they included the line, "Drug use OK"? Really? The police department used tax dollars to run advertising with the message "Drug use OK"?

I realize that's how snitching works ... hell, in many cases drug dealing is considered okay, sometimes for years on end. That's why law prof Alexandra Natapoff argues that widespread use of snitches can be "crime producing and corrupting." In more than a few cases, murder and violent crime have been tolerated. But it's still pretty shocking to see them say it in print.

Others quoted in the article worried that soliciting criminals in such an open-ended fashion would lead to false accusations:

"In an economy when jobs are scarce, this is just asking people to make up information for money," said Ellen Yaroshefsky, a legal ethics professor at New York's Benjamin Cardozo School of Law. "This is extremely dangerous."

In 15% of cases involving a wrongful conviction overturned by DNA evidence, an informant or jailhouse snitch testified against the defendant, said Barry Scheck, co-director of the Innocence Project, which seeks to free the wrongfully convicted.

There's also the risk of snitches using police to further their own criminal interests rather than with an aim of reducing crime. An officer quoted in the story told USA Today "you have to be careful. [Informants] may be playing their own games."

Finally, the story identifies two agencies that recently reformed their policies regarding confidential informants:

• Atlanta police amended their policies in 2007 and again this year after a botched drug raid based on an informant's tip, spokesman Otis Redman said. Supervisors must witness informant payments, and sources must undergo credibility checks.

• The Tallahassee Police Department reviewed its policies after the shooting death of an informant in May, Capt. David Hendry said. The new policy allows only 30 of 360 officers to oversee cases involving informants.

They could have added to the list reforms implemented at Dallas PD requiring greater documentation and oversight of informants after the infamous "fake drug" scandal. (Similar changes, at a minimum, are needed at the Dallas Sheriff.)

Look for some of these issues to be debated in the 81st Texas Legislature in light of the recent spate of DNA exonerations. State Senator Rodney Ellis, who is the board chair of the national Innocence Project out of New York, has filed SB 260 which would require an admissibility hearing before jailhouse snitch testimony could be heard by a jury, mandates full disclosure of witness inducements, and requires a cautionary jury instruction whenever witnesses receive a reduced sentence in exchange for testimony.

"Baffling" harmless error ruling from Houston Court of Appeals

Colin Miller at EvidenceProf Blog says the Houston Court of Appeals issued a correct evidentiary ruling in favor of a criminal defendant, but coupled it with a "baffling" conclusion of "harmless error" - perhaps the favorite pet phrase of Texas appellate courts. In Aguilar v. State, 2008 WL 5058974 (Tex.App.-Houston 2008), Miller says that the Houston 14th CoA was correct in finding that hearsay testimony about a defendant's disputed confession was inadmissible, but that's when the ruling jumps the rails:

So, Aguilar won his appeal, right? Well, actually, the Court of Appeals found the trial court's error to be harmless. And how did it reach this conclusion? Was there forensic evidence supporting the conviction? Did eyewitnesses testify? Did other people hear Aguilar confess? No, no, and no. Instead, according to the court,

"At trial, Luhan testified that [Aguilar] shot him. Further, Officer David Wiese, an officer who responded to the scene of the shooting, testified that he asked Luhan who shot him and Luhan identified [Aguilar]. Therefore, the court admitted the only damaging evidence from Mancias' statement, that appellant shot Luhan, through other sources. Because the same evidence was admitted without objection, the error is harmless."

Really? So, the trial court's error in admitting evidence of Aguilar's alleged confession was harmless solely because the victim identified him twice? Is the Court of Appeals really saying that a victim's identification of the defendant as his assailant is the same as the defendant's confession to the crime? It looks to me as if this is a clear case where the Court of Criminal Appeals of Texas needs to reverse and order a new trial.

See Miller's full post for a more detailed analysis.

BLOGVERSATION: Scott Greenfield at Simple Justice comments on the case and calls the phrase "harmless error" the "last refuge of scoundrels," declaring:

To compare the introduction of a confession to the victim's account is, in real trial terms, utterly ludicrous. But with the invocation of those two most nasty and despicable words, harmless error, the appeals court can rule in Wonderland where a blink and a phrase makes everything bad go away. This wasn't the "same evidence," unless the judges of the court have never tried a case and exist in some theoretical world where all evidence carries the same weight and impact.

Time for new US, Mexican anti-drug strategies

If the 81st Texas Legislature weren't nearly upon us, it'd be easy and timely to devote much more attention on Grits to criminal justice topics south of the border. That issue could take up an entire blog and then some, and Grits just doesn't have time or resources to tackle the story properly. Rather than delve deeply into these subjects, then, I at least wanted to point readers to several important, recent lowlights from law enforcement's battle against multinational drug cartels that significantly affect the Lone Star State.

Ironically, crime in Texas (including our murder rate) has actually declined during a period in Mexico when thousands were slain in battles between competing criminal organizations and the government over access to US consumers. The Los Angeles Times puts the total in Juarez (El Paso's sister city) at 1,300 cartel-related murders in 2008 alone. That's more killings in one city than the entire state of Texas sees in a year - in 2007 Texans reported just 1,172 total murders according to FBI crime stats.

I join the LA Times in their hope that the Obama Administration changes strategies on its Mexico policy because the first installment of President Bush's Plan Mexico anti-drug money takes what I think is exactly the wrong tack - indiscriminately throwing cash at the problem. As I learned from an article in the latest (Sept. - Dec.) issue of Voices of Mexico (an academic publication from the Mexican university, UNAM, not online), a shortage of funds is hardly the biggest challenge facing Mexican law enforcement:

It hardly seems necessary to emphasize that the problem in Mexico is not a matter of limited economic resources allocated for fighting crime. In 2007 public spending programmed for "order, security, and justice" was 60.46 billion pesos. In 2008 this amount was increased to 69.58 billion pesos. This last amount represented an 86.8 percent increase vis-a-vis 2003, when the amount designated was 37.25 billion pesos. Even so, President Felipe Calderon requested a 39 percent nominal increase over the current year in the Federal Spending Bill for2009 presented to Congress. In the last six years, the federal executive has used only approximately 50 percent of the amounts budgeted. Nevertheless, the results do not correspond by far to the [total] amounts spent in this area.

In light of these data, the importance of the so-called "Merida Initiative" seems more political and symbolic than practical. Mexico doesn't need our money, they need to clean up their own law enforcement agencies while America needs to focus on reducing both demand and corruption north of the border.

The VoM piece reinforces my sense that the United States shouldn't be spending so much on helicopters and equipment when many in Mexican (and increasingly US) law enforcement are working as much as agents of drug cartels as police.

That became apparent earlier this year when one of Texas' border Sheriffs who'd received Gov. Perry's multi-million dollar anti-drug grant was arrested for allegedly working as an agent of the Gulf Cartel. As state Rep. Jessica Farrar told the El Paso Times: "We may as well just send it directly to drug dealers ... We've been spending money against our own interests."

Driving home that concern are more recent arrests of corrupt officials on both sides of the border. According to AP:

Mexico's former acting federal police chief was accused Friday of collaborating with a notorious cartel and stealing money from a mansion during a raid to bust a drug trafficking ring.

A judge ordered Gerardo Garay's formal arrest on suspicion of organized crime, robbery and abuse of power, according to a statement from the Attorney General's office. Garay had been under preliminary detention for a month, but authorities had not revealed the allegations against him. He has previously denied any wrongdoing. ...

Some of those arrested had been at the helm of President Felipe Calderon's nationwide offensive to take back territory controlled by drug gangs, a two-year campaign involving the deployment of more than 20,000 soldiers.

In November, Mexico's federal police liaison to Interpol was arrested as an alleged cartel conspirator.

Similarly, on the US side we continue to see episodic bouts of drug-related corruption among both law enforcement and others in officialdom. Just last week we saw another Texas-based Border Patrol agent "indicted for allegedly accepting bribes in exchange for escorting narcotic loads."

The Brownsville Herald recently told the story of a paralegal who allegedly sold information she had access to through her employer, a private law firm, to a drug gang who used it to commit a murder. While Grits has focused the problem of police corruption, the Herald reminds us that "A cadre of attorneys, probation officers, paralegals, grand jurors and court staff has access to sensitive intelligence for which groups such as the Texas Syndicate or the Tamaulipas-based Gulf Cartel are willing to pay highly."

Finally, one can't talk about press coverage of the Mexican drug war without doffing one's hat to those journalists who risk their lives to bring us those stories. In particular, I can't help but imagine the horrific holiday season faced by the family of Armando Rodriguez, a crime reporter for El Diario de Juarez in Ciudad Juarez who was fatally gunned down Nov. 13 outside his home as he was taking his daughter to school. Keep them in your prayers and hope that we can find some way to combat drug trafficking that doesn't put reporters at risk.

In particular, I'd like to see the government make much more intelligence information about cartel activities public to take the pressure of journalists like Rodriguez, who are frequently killed for reporting things that law enforcement and courthouse insiders already know. Such "open sourced intelligence" could perhaps pressure the cartels in indirect but meaningful ways that can't be had through roadway interdiction or long-term undercover investigations.

I'm not a great fan of the TV show "America's Most Wanted" - about 5 minutes of the breathless, hyped tone turns me off. But perhaps what's needed to reduce risk to journalists may be some sort of "Mexico's Most Wanted," an official or semi-official source of information to heighten public pressure and awareness.

In 2007, the Texas Legislature gave more than $100 million in grants (distributed through the Governor's office) to Border Sheriffs Association members in a pork-laden plan which grew out of Perry's 2006 re-election platform. This year, the Governor wants to boost that amount and expand the grant program to include police departments in interior cities in addition to along the border.

I think Gov. Perry is making the same mistake as the national government with its recent aid package to Mexico. By failing to prioritize reducing corruption, in the case of Sheriff Guerra Perry's plan put anti-drug money directly in the hands of someone who is now alleged to have been a cartel employee.

Though the issue never made it on the the presidential campaign radar screen, the Obama Administration definitely should move ASAP to set a new course for US drug policy, particularly regarding Mexico and Latin America. Reducing corruption (as opposed to purchasing guns and equipment) must become a more central focus of anti-drug law enforcement on both sides of the border, or else we risk witnessing an outcome that's openly feared in the Voices of Mexico article: "the imminent collapse of the Mexican state."

Texas murder, execution and crime rates all declining

Crime and Consequences informs us that this year we've seen:

Fewer Death Sentences in Texas: A story in the Houston Chronicle by Michael Graczyk reports that significantly fewer Texas murderers received a death sentence this year. The annual review from the Texas Coalition to Abolish the Death Penalty noted that 18 executions were carried [out] this year compared with 26 in 2007. The group's Executive Director said "...officials' zeal for executions was not matched by public desire for new death sentences, as evidenced by the continued steep decline in the number of new inmates arriving on death row." What was not noted is that homicide rates in the state's two largest cities are down for the second year in a row. A Dallas Morning News story by Tanya Eiserer reports a whopping 22% drop in that city's homicides. Houston's rate was down 7% last year according to the FBI Uniform Crime Reports, and had continued to decline last spring. The evacuation of Houston and devastation caused there by Hurricane Ike in September may also contributed to lower a homicide rate this fall.

I don't agree that falling murder rates entirely explain the decline in new death sentences. Two other factors - the creation of "life without parole" as the only option to death in capital cases, and changing jury attitudes in the big death penalty counties, especially Harris - IMO have more to do with Texas' recent capital trends.

In 2007, TDCJ received 51 new capital convicts, but 37 of them received sentences of LWOP - only 14 went to death row.

"Crime Doesn't Pay(back)"

The Houston Press this week examined the important issue of victim restitution and discovered that:

Across the entire state, 90.3 percent of offenders who were successfully discharged from 2003 to 2008 still owe their victims restitution. Fewer than 10 percent paid off all their restitution. Out of the more than $43 million those discharged parolees were ordered to pay, the parole division only collected 5.3 percent of it, or $2.3 million (see "Bad Debt").

Unfortunately, reporter Chris Vogel mostly took his lead in the story from the City of Houston's "crime victims advocate" Andy Kahan, who keeps pretending that it's somehow possible for restitution as ordered to be paid back before the end of an offender's parole term. "It smacks of the ultimate hypocrisy," says Kahan. "A court order should be binding — no if, ands or buts."

That might be a reasonable stance if we're talking about a few hundred dollars, but restitution amounts are frequently set unrealistically high. For example, a major case study Vogel examined was that of a fraudster who scammed nearly $1.7 million from 17 people and was ordered to pay it all back when he left prison.

Such expectations ignore the fact that parolees leave prison with $100 and a bus ticket. Ex-prisoners must find a place to live, get transportation, pay for a drivers license and other bureaucratic fees to become street legal, and even then they're legally excluded from hundreds of professions and practically excluded from most others because of their criminal record. They have trouble finding housing, jobs, in some cases they're excluded from student loans, plus they must pay parole fees and other court costs (including a fee to the state crime victims compensation fund) in addition to restitution.

Under such circumstances, nobody is going to EVER be able to pay back $1.7 million or anywhere close to it without actually committing another crime! The Press story finally acknowledged, deep into the story, a point which should have been Vogel's lede: "This is the problem for which no one seems to have a solution: how to make someone pay money that they don't have."

Even so, the story was notably light on solutions. Instead, much of the early part of the article operates in Andy Kahan's imaginary realm of Tuffoncrimelandia, insisting there are "no ifs, ands or buts" when in fact there are big ones, like, "but they don't have the money to pay back." Or as Marc Levin put it, you "can't squeeze blood from a turnip."

Speaking of whom, though Levin and I are often on the same page regarding probation and parole, he promotes an idea in the story that I resoundingly dislike - Marc basically wants to let courts take every last asset from a parolee and leave them homeless and indigent if they have outstanding restitution orders. To me it makes no sense from a public safety perspective to force ex-criminals into an untenably desperate state because they'll likely respond by committing more crimes.

At any rate, nobody in the story suggested simply ending the charade - that courts should just stop issuing restitution orders that are a legal lie at the time they're written and which nobody (except, perhaps, the crime victim) expects to ever be paid.

A court could mandate that the sun rise in the west tomorrow, but that won't stop the first morning rays from appearing on the eastern horizon. However, courts every day enter restitution orders that are blatantly unrealistic and which they know at the time are unlikely to be enforced. Indeed, in many cases they should not, since doing so would worsen public safety and increase the likelihood of recidivism by the offender. It's cruel to the crime victim and undermines public respect for the justice system when the court touts expectations that can never be met.

There was no discussion of the state's crime victim compensation fund, which is about to get a big boost from its cut from TDCJ inmate phone service (which is just now being installed - in addition to its existing money sources, the fund will get the first $10 million of any profits from inmate phone calls and half the take thereafter). Perhaps expanding the scope of that fund would be a better mechanism for making sure victims get what's owed to them?

Gregory Stewart, an ex-offender interviewed for the story who owed a much smaller but for him still unattainable amount ($7,000), offered an excellent, much more practical suggestion than stridently demanding money from people who don't have it. He:

thinks TDCJ should make it easier for inmates to earn money while in prison.

"They should let us work and start paying as soon as we can," says Stewart. "If I'd have been able to pay during those four years I did, I think I would've been able to even complete my restitution."

Unfortunately, the trend has been to limit work opportunities for offenders inside. Lately Sen. Robert Nichols has been on the warpath against Texas prison industries programs, claiming they're unfairly competing with free world companies. But offenders earning money through prison industries work actually do pay off restitution, fines and court fees while they're inside, so Nichols' push to eliminate in-prison labor may run counter to the best interests of crime victims.

This is an important topic and the Press offers a lot of new data about the problem. What's needed is a more robust debate about real-world solutions

Pew urges community supervision strategies to improve public safety

Doc Berman informs us of a new publication from the Pew Center on the States titled "Putting Public Safety First," which suggests "13 Strategies for Successful Supervision and Reentry." Berman quotes from the email announcement:

A new policy brief from the Pew Public Safety Performance Project highlights community corrections strategies that can help policy makers and practitioners improve public safety and make better use of scarce public funds. Putting Public Safety First: 13 Strategies for Successful Supervision and Reentry is part of an ongoing series of policy briefs published by The Pew Center on the States. The 13 strategies outlined in this brief were the consensus findings from two meetings of national experts held over the past year by the Urban Institute, in collaboration with the National Institute of Corrections (NIC) and the JEHT Foundation.

This briefing is a companion piece to a longer report produced by the Urban Institute with the support of the JEHT Foundation, NIC and the Bureau of Justice Assistance. The report includes examples from the field and describes each of the 13 strategies in more detail....

We hope you can use this policy brief to help make the case for more cost-effective corrections in your work with policy makers and managers.

Many of the 13 strategies will sound familiar to regular Grits readers and anyone who has followed Sen. John Whitmire and Rep. Jerry Madden's probation reform initiatives over Texas' last two legislative sessions. They are:

1. Define success as recidivism reduction and measure performance
2. Tailor conditions of supervision to the individual
3. Focus resources on higher risk offenders
4. Frontload supervision resources
5. Implement earned discharge
6. Supervise offenders in their communities
7. Engage partners to expand intervention capacity
8. Assess criminal risk and need factors
9. Balance surveillance and treatment in case plans
10. Involve offenders in development of the case plan
11. Engage informal social controls
12. Use incentives and rewards
13. Respond to violations with swift and certain sanctions

See more detail in Pew's public policy brief and the Urban Institute's full report.

RELATED: Ana Yañez Correa from the Texas Criminal Justice Coalition had an op ed in the Statesman this week focusing on prisoner reentry strategies that help offenders succeed on community supervision.

Why no prosecution of false child abuse report in the Great Eldorado Polygamist Roundup?

A former supervisor with Texas Child Protective Services (CPS) was fired from the agency in May and now has been indicted for "making a false report of abuse," the Corpus Christi Caller Times reports, which leads me to ponder why we haven't seen similar charges lodged against Rozita Swinton, the prank phone caller whose false accusations of abuse launched the Great Eldorado Polygamist Roundup in West Texas last spring?

Why have they waited so long to pursue criminal charges against a hoaxter whose actions gave CPS (not to mention the legal system in San Angelo) an enormous black eye? Was what this woman allegedly did any worse than Swinton's offense?

We still haven't learned, by a longshot, the complete backstory to what happened during the days and hours leading up to the YFZ Ranch raid, and I'm betting a desire by authorities to keep it that way lies at the root of the failure by officialdom to extradite Swinton from Colorado and hold her accountable for reports that were clearly as false as any made by this supervisor.

Open Thread

I'm on the road for most of the day today, so use this as an open thread while I'm gone to tell me what's on your mind. In particular, I'm interested to know:

• How, if at all, might the hot and heavy Speaker's race in the Texas House affect criminal justice policy and politics in the 2009 legislative session?

• Given lean budget times, how likely is the proposed half-billion dollar, 20% raise for TDCJ employees next year?

• Do readers think the proposed merger between the Texas Youth Commission and the Juvenile Probation Commission will solve the problems at those agencies identified by the Sunset Commission?

Hasta mañana.

Austin police face cuts but ignore obvious savings

The City of Austin is looking at budget cuts to public safety items, the Austin Statesman reports, including a proposed $4.7 million slashed from the police department. Predictably, police union officials "predict that response times would increase and that crime rates would surge as the result of further cuts." However, I still maintain the Austin Police Department, in particular, can save taxpayers quite a bit of money while actually increasing police coverage - for starters, by implementing the ideas discussed in this recent Grits post.

UPDATE: A commenter asked why no one was discussing the city auditor's critique on APD from last spring in the context of budget cuts. Good point! Here's a link to the auditor's full report.

'He did it': Eyewitness misidentifications still happening

Dallas has witnessed a large number of exonerated defendants based on DNA evidence, nearly all of whom were convicted because of faulty eyewitness testimony. And if you think that's not still happening, check out this tale told by Texas Lawyer about a crime victim who identified defense counsel as the perpetrator while testifying in court:

On Nov. 11, George Milner Jr., a partner in Dallas' Milner & Finn who many consider the dean of the Dallas criminal-defense bar, was defending Marc Needham, who was accused of misdemeanor deadly conduct. According to a trial transcript, when Dallas County Assistant District Attorney Brian Poe asked a witness during direct examination to identify the defendant, she pointed to Milner. Poe asked her if she was sure, to which she replied: "He's the only one in the blue suit with blue tie. He stood up and objected. Him -- that's him there." After Poe passed the witness, Milner didn't miss a beat, telling Dallas County Criminal Court No. 6 Judge Angela King: "Your honor, first of all let me enter a plea of not guilty." Then Milner began cross-examining the witness. When Milner asked her what she remembered, she said: "Well, sir, I hate to tell you this, but the first thing I heard was you pointing a gun at me and saying, 'Now do you want to F with me?' Don't you remember that?" "No. My memory is about like yours," Milner said. "No, mine is very sharp, sir," the witness replied. During redirect examination Poe asked the witness, "Would you be surprised that the person you've been talking to for the last 25 minutes is actually named George Milner? He's a prominent attorney here in town, and he represents Marc Needham?" The witness replied, "Well, that's a good trick they played, because he looks just like him to me." The jury found Needham not guilty. Poe believes the reason the witness misidentified Milner is she saw him when she testified at a grand jury hearing. For Milner, it was just another great story he has accumulated during his 50 years practicing criminal law. "It was funny -- one of those once-in-a-lifetime deals," Milner says. "There's no rule as to what you do when that happens."

If the prosecutor's theory is right that the witness saw defense counsel at the grand jury proceedings and thus assumed he was the defendant, that shows how strongly such post-event associations can influence who a witness identifies. Milner thought it was funny, and I suppose it was, but the problem of juries relying on unreliable eyewitness testimony without corroboration is no laughing matter.

H/t to Bill Baumbach for pointing me to this story.

RELATED:

• Eyewitness IDs at root of most Dallas DNA exonerations
• How much do eyewitnesses really see?
• Emotional pair of DNA exonerations argue for changing eyewitness ID procedures
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices

Judge: Give back red-light camera ticket money

Are thousands of tickets given to Texas because of red light cameras invalid because vendors weren't properly licensed? A federal judge recently said "Yes," and that should be cause for alarm for cities who're already gleefully spending red light camera income and now may have to give it back.

According to KFDA-TV in Dallas, "A District Court Judge agrees with [the plaintiffs in a federal lawsuit], saying the [red light camera] company is operating illegally and should have to refund all fines they collected." That's a major victory for camera opponents if the ruling stands up on appeal. Both of the other companies operating red light cameras in Texas are similarly circumstanced.

The Dallas CBS affiliate quoted plaintiff's attorney Lloyd Ward declaring, "The money they have been kind enough to remove from the pockets of the citizens of this state, I think they should bring it back into this state and put it back into our coffers." See also coverage in the Amarillo Globe News.

Perhaps it was this legal development that spurred the release this week the Texas Department of Transportation's red light camera analysis, which claimed unusually high success rate at preventing auto accidents based on limited (and sometimes nonexistent) data.

If cities must give back all red light camera revenues generated to date, it'll put quite a hitch in their budgetary git-along, if you know what I'm sayin'. That's a lot of scratch!

Lykos brings changes to Harris DA

Two stories about incoming Harris County District Attorney Pat Lykos deserve readers attention:

First, she's already consolidating her own leadership team, starting with a new first assistant, Jim Leitner, and also bringing onboard former Judge Roger Bridgwater. Murray Newman, who until yesterday blogged pseudonymously at Life at the Harris County Criminal Justice Center, was one of several prosecutors and investigators informed by the incoming administration that his services would no longer be required.

Murray campaigned vigorously for Lykos' main GOP primary opponent Kelly Siegler - a product of defrocked former DA Chuck Rosenthal's leadership team - and it was probably those harsh criticisms that earned his dismissal. I know from experience it's no fun to lose a job you enjoy in a political purge, but c'est la vie. Keep your chin up, Murray - the roses still smell as sweet from the other side of the bar. ;)

Meanwhile, Houston Chron columnist Rick Casey has an article on the new Lykos administration and recent idea exchanges with Dallas County DA Craig Watkins, a Democrat, who is wisely copying Harris County's "direct filing" intake system (see related Grits coverage) where prosecutors are on-call 24-7 to process cases:

As Harris County has done for decades, Watkins will make "intake" prosecutors available around the clock, seven days a week, to help police officers decide whether to jail suspects and how to charge them, and assist with paperwork.

One result: Not exacerbating jail crowding with suspects whose cases are likely to be dismissed. Another: Cutting down on errors that can hamper prosecution.

"Harris County has it and they love it," Dallas First Assistant DA Terri Moore told the Dallas Morning News. "They think it's good and efficient."

For her part of their mutual love-fest:

DA-elect Pat Lykos is not above doing some things Watkins has pioneered. That shouldn't be surprising. Even though she, unlike Democrat Watkins, is a Republican replacing a Republican, like Watkins she ran on promises to reform an office that had become controversial for a win-at-any-cost mentality sometimes tinged with racism.

Lykos said Tuesday she planned to put one of her prosecutors in charge of aggressively examining any post-appeal claims of innocence based on newly developed evidence.

She also said she, like Watkins, will have no tolerance for prosecutors who intentionally hide from defense lawyers evidence that might harm the prosecution's case.

Watkins told the Morning News last May that prosecutors who do this should face disbarment and if the harm was great, "it should be criminalized."

Lykos agreed.

"The intentional concealment of exculpatory evidence is a very serious matter," she said. "It is a clear breach of ethics. Under certain circumstances it should be criminal."

That would probably require an act of the Legislature.

These proposals in both counties sound positive. In Dallas, Watkins took heat when he first came onboard for firing top loyalists from the past administration, so arguably terminations of political opponents by Lykos are also following in Watkins' mold. With apologies and regrets to Murray and others who lost their jobs, I can't say I'm sorry to see the winds of change blowing at the Harris County DA's office.

El Paso flooded with drugs for five years while authorities watched

Prof. Alexandra Natapoff argues that widespread use of confidential informants (a.k.a., "snitches") may actually increase crime overall because the tactic encourages police to tolerate crime instead of enforcing the law.

That issue was raised this week by an El Paso court case in which a jury just returned RICO convictions for a half-dozen members of the Barrio Azteca gang, providing a rare glimpse into both the drug-running underworld in Juarez's sister city and the well-intentioned but problematic tactics used to investigate high-level drug crimes. Reported the El Paso Times ("6 in Barrio Azteca guilty," Dec. 3):

After the verdict, Herrera's lawyer, Ken Del Valle, criticized the FBI's use of informant Josue "Casper" Aguirre, a member of the gang who had criminal charges dismissed and was paid a total of $75,000 by the government.

Aguirre, who has left El Paso in fear of his life, testified that at one time, the BA was collecting quotas from 47 drug sellers.

"During the course of this five-year investigation, the FBI allowed 47 dope houses to operate in El Paso so they could gather evidence about the Barrio Azteca extorting these dope houses," Del Valle said. "If each of those houses sold an ounce a day, over five years, they allowed over 5,000 pounds of drugs to be on the streets of El Paso."

Was it worth allowing thousands of pounds of drugs onto the street to secure these six convictions? Would El Pasoans have been better served by shutting down 47 dope houses over the last five years? How many angels can dance on the head of a pin? Quien sabe?

Even local police don't think these convictions will shut down Barrio Azteca's drug operation:

"It doesn't mean the Barrio Azteca will be wiped out by any stretch of the imagination, but it puts them on notice that their drug dealing and murderous activities will not be tolerated," El Paso Police Chief Greg Allen said.

Well, as long as BA is "on notice" I'm sure people living near the 47 locations where drug dealing was knowingly tolerated won't mind, right?

MORE: The issue of whether tolerating crime by informants may increase crime overall made me think of a recent study (mentioned in this Grits roundup post) purporting to sustain the so-called "Broken Windows" theory that "if people look around and see other people violating norms, they will tend to violate them as well."

How does that observation, to the extent it's correct, apply to a police tactic that allows 47 drug houses to operate in El Paso for five years? Doesn't the "Broken Windows" theory imply that doing that actually caused other crime because people saw those crimes were tolerated?

Alexandra Natapoff, whose critiques of snitching I've relied on for this argument, and James Q Wilson, the progenitor of the Broken Windows theory, come from very different places on the political spectrum (he's a neocon intellectual, she's a former federal public defender), but their theories on this subject seem to coincide.

Texas death row contraband problems not unique

Texans were outraged recently when death row inmates were found in possession of smuggled cell phones, chargers, and related equipment - including one used to call and threaten a prominent state senator - but it could be worse: In Kenya, they recently found a death row inmate with a contraband laptop and modem allowing internet access which he used to perpetrate "an elaborate scam" in the outside world. Indeed, "So lucrative is the trade in contraband within the prison that warders compete to be assigned sentry duties in Block G [death row] which houses the ‘bazaar’ to earn bribes."

Scarce data makes new TXDoT study on red light cameras suspect

I stopped following the red light camera issue closely on Grits after I left ACLU of Texas, primarily because nobody was paying me to track the topic, which involves a lot of local fights and bitter back-room legislative controversies among hardball-playing, money grubbing combatants. But I've followed the issue enough in the past to be surprised when a reader sent me the link to a Houston Chronicle story which reported today that:

Red-light cameras apparently reduced overall collisions at dozens of monitored intersections across Texas, according to a state transportation study.

The report, released today by the Texas Department of Transportation, concludes that crashes declined overall by 30 percent at a sampling intersections, many of them in Houston.

"While these results cannot conclusively determine that red light cameras are responsible for the overall reduction in crashes," the report reads, "the presence of the treatment provided some effect on the frequency of crashes at the selected intersections for the limited time period of this analysis."

The study examined crashes from July 1, 2007 to June 30, 2008 at select intersections at 12 cities required to report crashes under a new state law.

The data show that right-angle collisions reduced by 43 percent, while rear-end collisions increased by 5 percent, mirroring some other studies across the nation.

Here's a link to the full study pdf. (As an aside - why can't newspaper stories link to their sources just like bloggers do?)

These are surprising data that contradict many past studies on the topic. For example, in Lubbock red light cameras were discontinued after accidents overall increased 52% at intersections with cameras. Similarly, the state of Virginia eliminated their use after studies in every city using the devices found the number of accidents increased. In other jurisdictions, studies have found reductions in right-angle accidents but nearly equal increases in rear-end collisions, including in injury accidents.

So how did this study come up with such radically different results? The short answer may be that much of their data is incomplete and speculative. For camera operators who began before 2008:

there is no requirement for the local authority to provide a report to the Texas Department of Transportation concerning the 18 months of pre-installation crash data even if the system remains active in 2008. ...

This presents a problem in reporting since some local authorities reported preinstallation crash data while others did not. This made the process of analyzing the effectiveness of the red light camera system difficult to perform since no base line data was present for some local authorities. In short, there was no metric to determine the rise, fall or static percent difference in crash rates at some of the reported treatment intersections.

Similarly, agencies' post-installation data was often truncated, particularly for jurisdictions that only began their programs since the beginning of the year. So the researchers had to take limited datasets and analyze them projecting forward.

Only 12 of 26 cities provided pre-installation crash data; two of those 12 did not provide any post-installation crash data. For that matter, "Of the 24 cities that provided post-installation intersection crash data, 14 failed to provide pre-installation crash data." It seems likely that pre-installation crash data may be under-reported, especially for rear-enders, since many people don't call the police over a minor fender bender but the camera will pick up everything.

So researchers ended up with an extremely small dataset from intersections chosen because other data was flawed or non-existent, not because it was representative of the whole: "Ultimately, there were 10 local authorities that provided pre and post-installation intersection crash data. The information provided represented 56 different intersections within these 10 reporting communities."

In addition, we know in many cases agencies don't report all their crime data to the state on many more serious types of offenses. So one wonders whether reporting on traffic accidents contains similar gaps and errors.

Finally, while other factors may contribute to accidents, researchers only looked at a single variable so it was:

difficult to determine the impact that red light cameras had as a safety countermeasure because other crash variables could have produced a biasing effect on the number of red light running collisions that occurred. As such this analysis provided only a limited descriptive investigation of the self-reported local authority red light camera data that was provided to the Texas Department of Transportation.

These pre- and post-installation data shortcomings, along with an outcome so radically different from other longitudinal studies, make this report highly suspect, IMO. But then, I'm biased toward using engineering solutions to reduce red light running instead of reacting to every problem by mulcting the public with tickets and fines.

Going forward, at least for agencies whose cameras came online after the new law took effect, it's possible that we'll have reliable data for analysis in the future. But there really doesn't appear to be enough data here for researchers to come to any real conclusions.

BLOGVERSATION: More from Blog Houston and Lose an Eye, It's a Sport.

Memories of home ... in jail

Back in the day, many jailers in small Texas towns actually lived in the jail with their families. The Wichita Falls Times Record News has a feature about a Clay County Justice of the Peace whose family was the last to live in the jail when he was a Clay County deputy in 1971 ("Justice recalls life in 1890 jail home," Dec. 1):

[Jim] Humphrey joined the [Clay County Sheriff's] department in October 1969 as one of only two deputies under Sheriff Thomas Covington. Humphrey patrolled the south half of Clay County and operated the jail, while Deputy Coy Jordan covered the north end. “We were out quite a bit,” said Humphrey.

Humphrey had also worked in communications for the Wichita Falls Police Department, but had little experience in law enforcement otherwise. His time with the Clay County department served as on-the-job training.

“(Covington) handed me the keys to a car and the jail and said, ‘Get after it,’ ” Humphrey said.

Newly married, Jim and wife Paula moved into the facility’s living quarters and worked as a team to care for the prisoners. The county provided $1.50 per prisoner per day for food. While that wouldn’t be enough today, Humphrey said it wasn’t much then either. Paula cooked two meals a day, lunch and supper, for the prisoners and if Jim happened to be on patrol at night, was in charge of operating the two-way police radio conveniently located in their bedroom.

“It was an experience, especially for a young couple just starting out,” Humphrey said.

By the time the Humphreys moved in, what had once been a state-of-the-art facility serving all of North and West Texas had lost much of its Victorian grandeur.

Jim and Paula lived in the first floor of the living quarters in an area not much larger than an efficiency apartment because the three upstairs bedrooms had fallen into disrepair.

The building was drafty and cold in the winter. To keep warm Jim kept the front foyer and parlor closed off — otherwise, the heat would funnel up the stairwell to the second story. The living room became the bedroom and the dining room also served as the living room. The kitchen was not original to the structure, and has since been removed.

The Humphreys used a heavy-gauge steel door that separates the living quarters from the jail foyer as the main entry to their home.

Some nights, Jim and Paula would wake up to the sound of rocks tumbling from the walls of the foundation and into the basement.

The couple repaired parts of the building out of their own pockets, refinishing the floors and re-tiling the downstairs bathroom. ...

Jim and Paula lived in the jail until 1971, when Arthur Peevey took over operations. Peevey lived in the building until it closed in 1973, following the completion of a modern 14-person jail which now serves as Henrietta’s city hall. Humphrey continued to serve as deputy in the new jail, and later as justice of the peace.

Could Cheney, Gonzales indictments be legit?

The Brownsville Herald on Sunday ran a feature profiling Willacy County DA Juan Angel Guerra ("Guerra bucks the odds," Nov. 30) and his much-ballyhooed prosecution of a private prison company for murder, including indictments of sitting Vice President Dick Cheney and former US Attorney General Alberto Gonzales.

Because Willacy County politics is a complete zoo, sometimes literally, I avoid the more lascivious stories about Mr. Guerra and his various feuds with other local officials. His past exploits are why most observers (including this blog) have been dismissive of the Cheney and Gonzales indictments, but the Herald offers up the most sympathetic account yet published of Guerra's effort to drag national political figures into the mix in Raymondville. Guerra alleges that Alberto Gonzales intervened to stop an investigation into a private prison firm operating the local jail, a business in which the Vice President has personal investments:

He is most interested in "cutting the head off the snake - which is cutting off what Gonzales and Cheney are doing," Guerra told The Brownsville Herald on Wednesday.

The DA is referring to Vice-President Richard B. Cheney's and former U.S. Attorney General Alberto Gonzales' alleged neglect of inmates and failure to oversee operations of privately managed and owned prisons that contract with governmental agencies to house inmates. He claims that Cheney has investments worth more than $85 million in the Vanguard Group, which in turn invests in for-profit prisons and profits from Cheney's neglect.

He alleges that Gonzales stopped investigations into assaults at for-profit prisons in Willacy County.

A Willacy County grand jury indicted Cheney and Gonzales Nov. 17. "We the Grand Jury of Willacy County Texas duly selected and empanelled, and with great sadness, concerned and because we love our country have no choice but to move to indict our sitting Vice President Richard B. Cheney and Alberto Gonzales . . . ," the indictment states.

The grand jury also indicted the GEO Group, formerly Wackenhut Corrections Corp., Warden David Forrest and other high-profile officials for a stream of alleged offenses from organized criminal activity, murder/manslaughter, accepting fees from private prison firms by virtue of public office to official oppression.

Has he really lost it psychologically this time as some persons suggest? ...

"Does it mean that 12 people lost it also?" Guerra said of the grand jury that returned the Nov. 17 indictments.

Some say that Guerra "could be off," but "like a fox."

Yet others, like Nueces County retired state District Judge Michael J. Westergren, who has practiced law for nearly 40 years, think Guerra is on to something.

Westergren told The Brownsville Herald Wednesday that Guerra is the only one who has had the "gumption" to investigate privately owned and managed prisons and their lack of oversight.

"I certainly think it is a serious matter. It's not frivolous by any means," Westergren said, referring to Guerra's case relating to private prison firms. He said there is "substantial support" to the allegations.

Opining that investigations into activities within the private prison system had been suppressed, Westergren said, "That's not good."

"It's a nationwide problem," said Westergren, adding that the incidence of death in private prisons is estimated to be substantially higher than at other facilities. "That's pretty bad," he said.

Guerra said he invited Westergren to his office to view the evidence. Westergren described himself as an "unpaid consultant."

The indictments against Cheney, Gonzales, GEO and Forrest revolve around the 2001 beating murder of Gregorio de la Rosa in the jail in Willacy County that Wackenhut managed, Guerra said.

The Cheney connection still seems awfully slim to me without some evidence the Veep did more than invest in a private prison company. But if Guerra can show the former Attorney General personally intervened to stop a Justice Department investigation into De la Rosa's murder (or other assaults at Raymondville's various private prisons - they're the town's biggest industry), perhaps there may turn out to be some fire, or at least a little heat, behind all the smoke Mr. Guerra is blowing.

UPDATE: Indictments dismissed.

Grits makes ABA Journal's list of top 100 legal blogs

I wanted to say "Thank you" to the editors at the American Bar Association Journal for naming Grits for Breakfast one of their "Blawg 100," their second annual compilation of what the publication's editors consider the nation's top legal blogs. I'm happy to say Grits made the cut last year as well, but the competition is getting stiffer. According to their announcement:

On our second annual list of the best legal blogs, just half of last year’s honorees make a return appearance.

What explains the high turnover? For one thing, every day new legal blogs are started, and some existing blogs—including some that appeared on last year’s list—cease to be updated regularly. Plus, some of the upstart blogs are just plain better than some that made the cut last year.

This year, blogs that aren’t updated at least weekly—no matter how interesting—often didn’t make the grade. We put a premium on blogs that broke news in 2008, or were among the first to provide trenchant analysis of one or more breaking legal news stories. We also gave props to bloggers who made the most of audio and video (in our new podcast category) or social networking applications.

Here's the full list of the ABA Journal's Top 100 Blogs, including many interesting-looking titles that are new to me along with quite a few old favorites. Go here to vote.

The ABA Journal editors organized their top blogs into multiple categories in which they're encouraging an online vote - what Scott Greenfield calls a "beauty pageant" - nominating Grits in their "Crime" category along with three blogs I read regularly and one that's new to me:

Fellow Texan and head honcho at the Harris County Criminal Lawyers Association Mark Bennett's Defending People deservedly made the list. Doc Berman over at the inestimable Sentencing Law and Policy made the cut, along with Greenfield at Simple Justice. Another non-attorney, New York Post photographer Steven Hirsch, rounds out the list with his Courthouse Confessions, which combines portraits of offenders with their stories told in their own words.

Vote for your favorite, and if you have a minute check out the blogs in other categories.

Stuff to read while I'm busy

While I'm focused elsewhere today, let me point readers to several stories I'd blog about in more detail if I had more time:

Creative sentencing
The Rockwall Herald Banner recently published a column by a local attorney on creative sentencing practices, their benefits and limits.

Gone to the dogs
The Houston Chronicle has a feature on dogfighting and a new PR campaign by the Houston PD aimed at combating it.

Extra credit
Student internships at the local jail?

Snitch rules
The ACLU Blog of Rights not long ago published a blog post on several interesting subjects related to informants and snitching, including a discussion of " Pearson v. Callahan [which] presents the question of whether the Fourth Amendment is violated when police enter a home without a warrant after an informant inside signals to police that a crime, usually a drug deal, is taking place." See the group's friend of the court brief on the case.

Broken windows
At Reason magazine we see what may be the strongest empirical evidence yet arguing in favor of the "broken windows" theory of crime prevention.

A murdered reporter and the case for open-sourced intelligence
The murder of a crime reporter in Juarez, reported by the Dallas News Crime Blog, reinforces my sense that law enforcement needs to change strategies and utilize "open-sourced" intelligence to combat drug cartel violence. After all, the journalist was killed for reporting information that, for the most part, is already known to the government.

Girls not gone so wild
Also from the Dallas News Crime Blog, we discover that fewer girls were arrested last year than a decade ago, a trend that flies in the face of recent media coverage.

More East Texas jail building
Harrison County's Sheriff is telling commissioners they have no choice but to build additional jail space.

See also excellent recent blog coverage at The Back Gate and at the newly redesigned Defending People.

Tango Blast differs from other 'security threat groups'

Not all prison gangs are created equal.

Tanya Eiserer at the Dallas News had a feature yesterday ("Texas Tango Blast gang draws kids with tattoos, loose affiliation rules," Nov. 30) focusing on the rise of the Tango Blast, an alternative to hard-core prison gangs created by Texas prisoners for self-protection which has now become well established and is much larger than traditional "security threat groups" (the bureaucratic euphemism for gangs) in prison. (See prior Grits coverage.)

Eiserer calls the Tangos "a violent, drug-dealing gang born in the Texas prison system," but that generalization slightly misstates what's going on, IMO - a misstatement she somewhat qualifies elsewhere in the article.

This new type of prison gang came to being in the early 1990s when Hispanic inmates from Austin, Dallas, Fort Worth and Houston banded together to protect themselves against more organized prison gangs such as the Mexican Mafia and the Texas Syndicate.

They called themselves the "Four Horsemen," after the four cities they hail from, and became known as "Tangos" – which came to be known as slang for hometown.

While old established gangs such as the Texas Syndicate, which was weakened last year as part of a federal racketeering investigation, have seen their fortunes decline, the Tango Blast's loose affiliation rules have made it attractive.

Earlier this year, Texas prison officials added the group to their list of regularly monitored gangs. So far, they have identified about 700 confirmed Tango Blast members.

Prisoners flocked to the Tango Blast because its laissez-faire philosophy is the antithesis of the established prison gang mentality of blood-in, blood-out – the notion that members have to commit an act of violence to get in and that the only way out is to die.

So by this description, Tangos were a) created for self-protection, not as a criminal enterprise, b) don't require their members to engage in violence or criminality on the organization's behalf, and c) members are not bound to the group once released from prison. That's a different kind of prison gang than the Texas Syndicate, Aryan Brotherhood, Bloods, Crips, etc.. However, reports Eiserer:

More recently, authorities say, Tango Blast has been locked in a pitched battle for control of illegal prison activities. The group is becoming more predatory, and prisoners who refuse to join are getting beaten over it, prison officials said.

If that's accurate, it's a marked change from what the Tangos have been in the past. However, much of the rest of Eiserer's account disputes this trend. For example:

Paul, who asked that his last name not be published, went to prison in early 2005 for burglary of a habitation and theft. He said Tango stands for "Tejanos Against Negative Gang Organizations."

He became a member because he liked the idea of not having any strict obligations as a Tango. "I knew they weren't going to ask me to go beat up or kill," he said.

Joining was as simple as meeting several inmates in the prison yard and getting "jumped in" – a beating that serves as an initiation. It lasted about a minute.

He's been out of prison since 2006 and says he's not involved in criminal activity.

Eiserer writes that Tango Blast "rejects old notions of prison gang exclusivity and lifelong commitments." What's more, even an assistant DA said of Tango Blast members who commit new crimes on the outside, "I don't think they are committing their crimes for the purposes of the gang." That description better fits my own understanding of what Tangos are and how they actually operate (though I hope readers with first-hand experience can give us even more background in the comments).

The Tango Blast phenomenon is worth officially monitoring, but distinctions should be made: These are loose-knit affiliations while the major, traditional prison gangs are actually ongoing criminal operations, several of them with ties to multinational drug cartels.

I was told once by a former prisoner that the Tangos are gaining membership explicitly because of guard understaffing at TDCJ - with so few guards around per prisoner, everyone knows TDCJ officialdom can't protect them while the Tangos can and do.

A major result from the Tango Blast phenomenon not mentioned in Eiserer's article is that it reduced violence by traditional prison gangs, who fear reprisals by the much more numerous Tangos. TDCJ gang specialist Javier Leyva told The Back Gate last year that "security threat groups across the state have declared truces amongst one another in order to present a unified front against the tangos."

So while I agree officialdom must pay attention to the growing phenomenon, I'm not at all sure that simply cracking down on Tangos as though they're the same brand of creature as the Mexican Mafia or the Texas Syndicate will help TDCJ's security problem. Prisoners flock to Tango Blast because they need protection TDCJ does not or cannot provide, not necessarily to engage in crime and thuggery.

Fully staffing prisons (TDCJ is 3,000 guards short right now) while maintaining or reducing the number of prisoners incarcerated would do more than anything else to improve safety, which is why TDCJ's bid to increase pay for prison workers is so important. When the agency is able to provide security itself, the Tangos, given their lack of hierarchy and discipline, will inevitably see their role reduced.