The Texas Criminal Law Generator

Are you a Texas legislator having trouble deciding what behaviors to criminalize next? If so, Dallas attorney Robert Guest has helpfully proposed the Texas Criminal Law Generator, which he describes thusly:

Every two years our most electable citizens gather in Austin to enact new criminal laws. Passing a new criminal law can be hard. You must invent a crisis that only a new criminal law can solve, and then convince other reps to vote for it. This takes time away from important activities like boozing it up with lobbyists or pandering to special interests. To help streamline the process I have created the Texas Criminal Law Generator. This system creates instant "tough on crime" legislation that is guaranteed to pass and be signed by Rick Perry!

If you are a politician who needs the appearance of "doing something about crime" without being distracted by details like justice, rights, or liberty, the TCLG is for you.

Hilarious, and brilliantly conceived: The whole post is a must read.

Police "testilying," post-Herring

Citing recent cases of police "testilying" in Boston and New York, Amir Efrati at the Wall Street Journal examined this week whether the exclusionary rule encourages police to lie on the stand, and what to do about it ("Legal system struggles with how to react when police officers lie," Jan. 29):

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases. ...

Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.

"It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That's because the exclusionary rule "sets up a great incentive for...police to lie."

Naturally, as you might expect, that is not a consensus opinion:

Police officers don't necessarily agree, says Eugene O'Donnell, a former police officer and prosecutor who teaches law and police studies in New York. "Perjury is endemic in the court system, but officers lie less than defendants do because generally they aren't heavily invested in the outcome of the cases," he says.

Somehow, though, I find little comfort in the assertion that "officers lie less than defendants do"! One would also expect them to commit "less" burglaries than defendants, but if police are committing any it's a serious problem. While it's certainly true that police "generally" aren't as heavily invested as defendants, in serious cases some of them are. There's little doubt in my mind that most police officers have too much integrity to lie intentionally on the stand, but it only takes a few bad apples to spoil a barrel.

Plus, when testilying goes unchecked, police see that their peers are able to get away with such behavior and are more likely to engage in it in routine settings. Sometimes police lying involves colllusion by overzealous prosecutors:

In Boston, a federal judge last week ruled that a police officer there falsely testified at a pretrial hearing in a gun-possession case about the circumstances of the defendant's arrest. The judge, Mark Wolf, is considering sanctions against the prosecutor for not immediately disclosing that the officer's testimony contradicted what he told prosecutors beforehand.

Efrati identifies the motive for police testilying as getting around the exclusionary rule, and discusses a fascinating study following the rule's implementation at the state level almost 50 years ago:

Testilying may have taken off after a 1961 Supreme Court decision boosted the exclusionary rule by requiring state courts to exclude -- or throw out -- some evidence seized in illegal searches, such as when police frisk people without probable cause or search a residence without a warrant.

Immediately after the decision, Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. -- most cases are prosecuted in state court -- didn't change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. "Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs," says John Kleinig, a professor at John Jay College of Criminal Justice.

SCOTUS recently began the process of scaling back the exclusionary rule, notes Efrati, allowing illegally gathered evidence to come into court if police say the error was made in good faith:

This month's Supreme Court decision added an exception to the exclusionary rule by holding that the prosecution of an Alabama man for drug- and firearm-possession charges was valid, even though the contraband was found after the man was wrongly arrested and searched. Police officers had mistakenly thought he was subject to an arrest warrant.

Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts.

So for the Roberts court, illegal evidence and testilying are concerns to be weighed against "letting guilty and possibly dangerous defendants go free" - in other words, apparently tolerable under some circumstances.

Personally, I disagree with Efrati that limiting the exclusionary rule might reduce "testilying." To me, it looks like Roberts' decision in Herring makes testilying more likely, not less, because officers will now concoct stories to pretend that intentional violations were innocent errors; at least, that's the door Justice Roberts opened for them.

Such rulings leave the system with very few remaining tools to hold police accountable for violating constitutional rights. The exclusionary rule may be a flawed remedy, but in the modern American legal system it's virtually the only means available to counteract police illegally seizing evidence. Activist judges have whittled away civil liability for police and prosecutors to the point where it's either nonexistent or virtually meaningless.

After Texas' most high-profile example of "testilying" in the Tulia drug sting case, legislation was filed to require corroboration for police officer testimony in undercover drug stings. Police unions fought the idea like they were defending the Alamo, and the bill was scaled back to only require corroboration for undercover drug informants - a significant step forward, but hardly a remedy for police testilying.

As SCOTUS seems bent on creating loopholes in the exclusionary rule that encourage police to lie, what possible preventive or punitive measures might help identify or elmiminate testilying? And which branch of government should we be looking to to address the problem?

Via TDCAA.

What sanctions for prosecutors who cheat to win?

How many more cases do we need to see where prosecutors withhold exculpatory evidence from the defense before the state bar, the courts or the Legislature act to sanction them?

Former death row inmate Michael Toney has been moved to the Tarrant County jail after his conviction was overturned last month because of Brady violations where Tarrant prosecutors failed to turn over exculpatory evidence to the defense before Toney's trial 23 years ago, reports the Fort Worth Star Telegram ("Inmate moved from death row to Tarrant County Jail," Jan. 30):

Toney was convicted of capital murder for the 1985 Thanksgiving bombing that killed Angela Blount, 15; her father, Joe Blount, 44; and her cousin, Michael Columbus, 18.

An appeals court overturned his conviction in December after the Tarrant County District Attorney’s office acknowledged that at least 14 documents favorable to his defense were withheld by prosecutors during his trial.

Reports the Startlegram, "Toney has always maintained his innocence. No physical evidence connected him to the crime."

I'd mentioned in the comments recently that the prosecutor in the Tulia drug sting cases, Terry McEachern, is the only prosecutor in recent memory disciplined by the Texas state bar for Brady violations, i.e., for withholding exculpatory evidence, even though it happens quite frequently.

Since the state bar won't discipline them, there's no criminal sanction for withholding evidence, and the US Supreme Court has ruled that they carry no civil liability, what should happen to prosecutors who cheat to get a conviction? What other options are there for reining in such behavior?

Harris may shift juvie 'boot camp' to treatment model

Juvenile justice researchers have known for a while now that juvenile "boot camps" don't reduce recidivism and create needless risks for youth, which is why I'm pleased to read this news ("Harris youth boot camp to replace drills with therapy," Jan. 28):

Harris County may scrap rigorous physical training and rigid military-style drills at its Delta Boot Camp in favor of a program that uses therapy to attack the emotional and behavioral problems that led the young people into crime, officials said Wednesday.

The county opened a juvenile boot camp in 1994 to offer chronic young offenders one last chance to shape up before they would be shipped off to do hard time at a Texas Youth Commission facility. Officials hoped the facility’s strong emphasis on military structure, drill and discipline would help the 14- to 16-year-old residents change from trouble-making boys into responsible men.

But Harris County Juvenile Probation chief Harvey Hetzel said Wednesday that research since has shown that young offenders are more likely to respond to counseling and education than to discipline alone.

“Our program’s weakness has always been the absence of a therapeutic component,” Hetzel said.

As seemingly with much of American criminal justice policy at the moment, this move arises from a pendelum finally swinging back from an era of too-harsh extremes:

Juvenile boot camps sprang up across the country in the early 1990s amid a national push to get tough on crime.

However, studies soon showed the facilities did not improve recidivsm rates for youths and in some cases were detrimental to young people who had experienced violence and abuse at home, said Gaylene Armstrong, an associate professor of criminal justice at Sam Houston State University who has studied juvenile boot camps extensively.

Treating juvenile offenders’ problems with substance abuse, mental illness and anger management, or even just offering them a basic education, was found to be more beneficial than having them run laps and do push-ups, Armstrong said.

“Even though from a public perspective, maybe some people would say, ‘These people did something bad, let’s really punish them,’ in the long term that’s not going to do much for us as a society because they’re going to end up back in the community and their problems aren’t going to be addressed,” she said.

See related Grits posts:

• GAO criticizes boot camp fraud and abuse
• Juvenile boot camps in Texas
  

If Barack Obama wants bipartisanship, he should remove Byrne grants from the stimulus package

A screening last night of the new documentary, Tulia, Texas, which will air nationwide February 10 on PBS, drew a really good crowd on a chilly night, and those who stayed for the Q&A session afterward with me and Texas Monthly's Nate Blakeslee had lots of questions and, I thought, a really good discussion.

Austin's a liberal, Obama-supportng town, so most who attended seemed shocked to learn that the Bush Administration has been a bitter opponent of the federal Byrne grant program (which funds drug task forces like the one in Tulia), while the new Obama Administration is championing its resurgence.

The reasons lie in the history of the program, which was spawned by a Democratic Congress during the latter days of the Reagan Administration, aiming to bolster Democrats' "tough on crime" credentials during Michael Dukakis' failed presidential bid.

Byrne grants theoretically can pay for all sorts of criminal justice programs, but in most states they largely pay for Tulia-style drug task forces. National Republicans dislike the program on federalist grounds, believing that federal pork shouldn't pay for local law enforcement, while Dems are more likely to view backing Byrne grants as a way to avoid the "soft on crime" label.

In Texas, regular readers are aware, Governor Rick Perry eliminated our task force system in the wake of the Tulia scandal. And George W. Bush, from the earliest days of his presidency, supported total elimination of the program, in part because he was criticized over the Tulia case when he first campaigned for the office.

Ironically, Barack Obama has been unsuccessful in his first efforts to reach across the aisle on his much-ballyhooed stimulus package - in part because it's larded with pork like Byrne grants that do nothing to stimulate the economy. Ending the Byrne grant program once and for all could be a terrific early opportunity to succeed in reaching out to Republicans on an issue they've championed, actually demonstrating bipartisanship instead of just talking about it.

It really is time for national Democrats in Congress to join Republicans and dump this program, which is a massive driver of racial disparities in state-level incarceration. In some states, 85% of drug arrests are made by Tulia-style drug task forces, predominantly in black communities.

Perhaps the nationwide airing of the Tulia, Texas documentary on PBS next month will give momentum to those in Washington who want to reach across the aisle to do something positive about which both parties could be proud.

States struggling to pay incarceration costs

Two must-read articles on the politics of over-incarceration during a budget crunch:

• From Stateline.org: Strapped states eye prison savings
• From the ABA Journal: Incarceration policy strikes out

The Stateline.org piece, in particular, includes great examples of methods being tried in other states to reduce incarceration costs. I was especially interested in this idea for improving probation:

In Arizona, the Republican Legislature teamed up with Democratic Gov. Janet Napolitano, a former prosecutor who was tapped for President Barack Obama’s Cabinet, to approve a program that rewards counties whose recidivism rate is significantly reduced. Kansas approved a similar program two years ago. Arizona’s program includes incentives for people on probation; they can reduce their sentences by 20 days for each month they comply with court-ordered conditions of their probation, such as making child-support payments and undergoing therapy.

Barbara Broderick, chief probation officer in Maricopa County, Ariz., said earned time credits for probationers provide a carrot-and-stick approach that previously focused only on sending delinquent offenders to jail or prison.

“What I didn’t have,” she told Stateline.org, “is the option to say, ‘Work with me. Lead a law-abiding life. Do the things the court has ordered."

Lots of other good suggestions in both these pieces.

Grits, Blakeslee on Tulia

It's been almost ten years since the infamous Tulia drug stings, but the fascination with and fallout from that unhappy case has yet to abate.

This evening at 7 p.m. in Austin at the Mexican American Cultural Center (600 River St.), author Nate Blakeslee and I have been invited as panelists for a discussion following the screening of the documentary film Tulia, Texas, which will air nationwide on PBS on February 10.

See Grits' review of the film when it premiered last year at the SXSW film festival, and a discussion guide for the event (pdf) created by the filmmakers.

SCOTUS to decide if post-conviction DNA testing is constitutional right

In a little more than a month, we learn from the Innocence Blog, the US Supreme Court will hear arguments to determine whether prisoners have a constitutional right to post-conviction DNA testing when it could prove their innocence:

In a brief filed [Monday] at the U.S. Supreme Court, the Innocence Project argues that prisoners have the constitutional right to DNA testing that can prove their innocence. The court will hear oral arguments on March 2 in the case of Innocence Project client William Osborne, who was convicted in 1993 in Alaska of a rape he says he didn’t commit. Innocence Project Co-Director Peter Neufeld will argue on Osborne’s behalf.

Read the Innocence Project press release here, and download the full brief filed in the case.

“The issue in this case is whether a state can deny a prisoner access to DNA testing that was not available at the time of trial and has the potential to prove his innocence,” Neufeld said. “In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor’s consent. This case involves a very important constitutional protection – one that is the only option for William Osborne.”

TCJC Criminal Justice Solutions Guide

Via email, from our friends at the Texas Criminal Justice Coalition:

TCJC's 2009 Criminal & Juvenile Justice Solutions Guide has finally arrived! Check out our policy recommendations that will save taxpayers money while increasing public safety:

Part 1: Protect Youth and Communities by Improving Juvenile Justice

• Improve Efficiency and Positive Outcomes Within Independent Juvenile Justice Agencies
• Strengthen Juvenile Probation and Increase Accountability

Part 2: Rebuild Confidence in the Criminal Justice System

• Improve Funding for Effective Indigent Defense Delivery Models
• Ensure Innocent Individuals Are Not Sent to Prison

Part 3: Save Money and Increase Public Safety by Strengthening Criminal Justice Practices

• Stop the Flow into Prisons by Supporting Probation
• Fight Drug Addiction and Address Mental Illness Head On
• Increase the Efficiency of the Texas Department of Criminal Justice

Part 4: Encourage Economic and Workforce Development by Reducing Re-Entry Barriers

• Equip Individuals with Personal Responsibility Tools, Inside and Outside of Prison Walls
• Broaden Access to Housing and Food
• Create an Enhanced Employability and Employment Protection Policy

Ombudsman: Move 19-20 year olds back to TYC

Reacting to news that the number of youth certified to stand trial as adults in Texas increased 30.9% after the passage of SB 103 in 2007, TYC's independent ombudsman recommended "that the Texas Legislature restore TYC’s jurisdiction over youths serving determinate sentences until they reach their 21st birthdays. TYC will maintain its existing policy of segregating students by age."

According to the report by the Ombudsman's office (pdf), which was requested by state Sen. Juan "Chuy" Hinojosa, "today’s higher adult certification rates are a serious, unintended consequence of an otherwise well-intentioned legislative change that reduced the maximum age of TYC jurisdiction and control from 21 to 19."

The new trend is especially pronounced among defendants who commit crimes at age 16 but don't make it into court until after their 17th birthday:

Although 17-year-olds are ordinarily not eligible for commitment to TYC because of their age, the numbers above represent those children who committed crimes while under the age of 17, but appeared in court after their 17th birthdays. Under the pre-SB 103 rules, the youngest of these children could have spent nearly four years in TYC if sentenced under determinate sentencing scheme. Today, this time-frame has been effectively reduced by more than half, making determinate sentencing a much less attractive option for judges and prosecutors.

The argument in 2007 for lowering TYC's maximum age for youth with determinate sentences was essentially twofold: It reduced the inmate population at a time when the agency was significantly understaffed, and it was supposed to reduce the chance that other youth at TYC would be victimized by the most serious offenders.

However, "Children serving sentences in adult prisons, as compared to children in the juvenile justice system, are five times more likely to be sexually victimized, eight times more likely to commit suicide, and twice as likely to be attacked with a weapon or beaten by corrections officers," said the Ombudsman.

What do you think: Should the Lege reauthorize TYC to house 19-20 year olds? I'm inclined to agree with the Ombudsman's recommendation, but am especially interested to see readers from juvenile justice fields discuss the pros and cons.

See this one-page summary (pdf) if you don't want to read the full report.

UPDATE/SUGGESTION: In the comments, juvenile justice historian Bill Bush makes the following, salient observation:

this is an area where we could learn something from the past.

In the 1940s, California and Texas both created state agencies (CYA and TYC, respectively) based on something called the Model Youth Authority Act, which was promulgated by a legal reform organization called the American Law Institute.

Ironically, though, both CYA and TYC ignored the key feature of the Model Act, whose original intent was to create a separate judicial and institutional system for "youthful offenders" between the ages of 17-21. Victimizers in the juvenile system, this age group became victims in the adult system. And rehabilitation proved nearly impossible in either system.

For a variety of reasons, states ignored this provision when they adapted the Model Act to their own situations in the 1940s, but it may be an idea deserving of reconsideration.

Bexar probation revocations up from not using progressive sanctions

As an indication of how badly things are going at the Bexar County probation department, check out the list of problems Greg Harman at the San Antonio Current had to overlook to identify the agency's biggest problem ("Breasts, toes, and probation," Jan. 28):

How bad is it at Bexar County’s Community Supervision?

Not taking into account the administration’s unwillingness to reconsider months of revocations triggered by drug tests that were more than likely faulty — it’s bad. [See “Test-tube maybes,” October 1, 2008.]

Without even considering the persecution of a highly visible union-organizing employee and an internal clampdown on union members — it’s still bad.

Beyond the “subjective” preponderance of evidence — to which we must now add a fresh sexual-harassment suit against Probation Chief Bill Fitzgerald — some newly released numbers reveal embarrassingly serious failings in the department.

Harman explores why the Bexar County probation department has the highest revocation rates of any large county in the state:

A December 1, 2008, report to the state Legislative Budget Board by the Texas Department of Criminal Justice reveals that the number of felony revocation rates in Bexar County shot up 80 percent between 2005 and 2007. The trend is doubly worrisome because revocation rates have dropped significantly in the state’s other major metro areas. During this same time period, check: Harris County (down 13.6 percent), Dallas County (down 10.7 percent), Tarrant County (down 16.8 percent), El Paso County (down 8.4 percent), and Travis County (down 19.6 percent).

Holy urine-analysis jokes! What gives?

To make sense of the rising numbers, the Texas Department of Criminal Justice sent a team of auditors in February 2008 to dig through Bexar County Probation files. After reviewing 198 randomly selected cases, the five auditors reported back that the department’s case managers had not been trained in the basics of so-called “progressive case management” methods. Progressive case management, supposedly adopted by Bexar County in 2005, is a methodology aimed at reducing the number of probationers that end up being sent back to jail by providing case managers with a range of punishment-reward options. According to the state, this should include reduced caseloads to allow for more aggressive monitoring, use of inpatient and outpatient drug and alcohol treatment options, and options for that carrot of carrots: Early probation termination.

All departments receiving funds through CJAD are required to use progressive case management. Bexar County Probation recently received more than $6.5 million from the state for supervision and caseload reduction.

The auditors’s revocation-compliance review, released last month, also found that case officers followed the required progressive sanctions model in only 35 percent of [probation] violations that didn’t include a new arrest, and in only 23 percent of those probation revocations involving new arrests. Not only had most case workers not been trained in using progressive sanctions, managers weren’t stepping in to forge alternatives to revoking probation, the auditors wrote.

“Case files directed to courts with a [Motion to Revoke, or MTR] reflected few manager interventions when other levels of sanctions within the PSISM remained available,” the audit states.

The department’s other failings include overall poor management of case records and “conflicting practices” between Probation, district and county court-at-law judges, and the District Attorney’s office.

This news confirms my suspicion that poor departmental practices, not some untoward demographic surge in San Antonio, underlie that county's continually increasing revocation rate.

Bexar probation's poor performance could, and should, cost them hard dollars if they're not willing to use state grants for the purpose they were given:

Could Bexar County’s poor performance mean a drop in state funds, we asked CJAD Director Bonita White. “It is possible that CJAD will decrease funding for Bexar CSCD in the future,” White said. “However, our goal is to work with the Bexar CSCD to help them keep more probationers successful, and thereby truly increasing public safety.”

With a new Speaker of the Texas House from Bexar County, it's perhaps unlikely Bexar would lose funding during the 81st Legislature. But by the same token, CJAD shouldn't be forced to continually throw good money after bad. Somebody should be holding Bexar probation chief Bill Fitzgerald responsible for his department's poor performance - the judges on his governing board sure aren't doing it.

Perry pitches border security grants in State of the State

Last year Governor Perry pushed for new prisons in his State of the State speech, but this year, happily, and perhaps tellingly, he's abandoned that unfulfilled wish.

The only significant criminal justice priority in today's State of the State speech, reports the Fort Worth Star Telegram, was when Gov. Perry "called for $135 million to strengthen the state-led enforcement effort to confront what he called a continued threat from 'brazen transnational gangs' tied to Mexican drug cartels." I didn't see that number in the prepared remarks, but here's the portion of the speech related to border security and immigration:

In these times of global unrest and porous borders, security remains a top priority, especially in light of Washington’s ongoing failure to provide the resources necessary to secure our border, or implement a sensible immigration policy.

I’m hopeful that my fellow border governor from Arizona will bring a better approach in her new role as Secretary of Homeland Security.

However, until we see results, Texas will continue filling the leadership void created by Washington DC and investing in the safety of our citizens with our own border security effort.

From 2005 until September 2007, my office cobbled together roughly $38 million which we used to ramp up security along our border.

Based on the success of these efforts, you invested $110 million in Operation Border Star in 2007.

In doing so, you not only funded more personnel, but also provided assets like aircraft and patrol boats, as well as better technology for communications, data management and coordinated efforts.

Joining us today are representatives of the team protecting our border. Will you please stand and be recognized?

They represent the hardworking men and women who work together to fight crime, including the Texas Border Sheriff’s Coalition, the Brownsville Police Department, the Department of Public Safety, Texas Parks and Wildlife, Texas Military Forces, and the U.S. Border Patrol

Thank you for working so hard to keep Texas safer. As a result of your efforts and their deterrent effect, illegal alien apprehensions in Texas have dropped 47% since 2005.

Crime has also fallen as much as 65% in areas that smuggling cartels previously treated as their personal playground.

Those are signs of great improvement, but we need to keep the heat on by renewing funds for our border efforts, especially in light of the growing drug and gang-related violence in Mexico.

It is already spilling into communities across the state in the form of increasingly brazen transnational gangs.

Because we have seriously hindered the Mexican drug cartels’ ability to move contraband across the border, they are relying with increasing frequency on these unprincipled gangs to do their dirty work.

Originating in foreign countries and taking shape in our prisons, these gangs have been radiating outward into our towns, schools and neighborhoods, applying terror tactics to build their influence.

Joining us here today are State Troopers John Cox and Chad Foster, who were recently on the receiving end of gunfire while protecting our state from those threats, including gang members. Would you please stand and be recognized?

Gentlemen, thank you for standing between the law-abiding citizens of our state and those who would do them harm.

I also want to thank Senator Carona for his efforts to bring attention to the serious threat these gangs pose to our state.

I agree it is time to act and believe we should devote the necessary resources, just under $32 million, to properly address this gang threat head-on, in communities across the state.

These funds would be used to pay more officers, provide better coordination of multi-force efforts and fund prosecutions for gang-related offenses.

As we continue to strengthen our border, we must also consider the essential role that federal immigration policy, or the lack thereof, plays in the safety of our citizens and integrity of our state.

After revelations that a Dallas man had set up a cottage industry procuring Texas driver licenses for illegal aliens hailing from countries around the world, I am an even stronger supporter of the DPS initiative to issue specialized, vertical driver licenses, to identify those who have overstayed their visa.

I also support an end to the notion of sanctuary cities. Local government sends the wrong message when they pick and choose what laws they want their peace officers to enforce.

I believe we should also require the same identification procedure for voting that we require for voter registration. I commend Lt. Governor Dewhurst for his longstanding leadership on this issue.

A democracy without proper protections against voter fraud cannot preserve the public trust.

We should also track the citizenship status of those receiving state-funded services so we can get our hands around the financial impact of Washington’s failure to handle the immigration challenge.

Some may oppose these efforts, but they are commonsense approaches to protecting our citizens’ lives and resources, as well as our state’s integrity.

Although we are maintaining a more secure border and preparing to combat the growing gang threat in our cities, there is nothing we can do to divert the storms that hammer our coast.

There's much to dispute about the Governor's presentation of border realities. Independent analyses contradict his claims of massive drops in border crime; in fact, the border has always been, statistically, one of the safer parts of the state. And most economists agree illegal immigration declined because of boosted federal enforcement combined with a tanking housing market, not because of Texas' grants to border sheriffs, which included a sheriff who was allegedly on the payroll of the Gulf cartel.

I also don't understand what he means about local governments that "pick and choose what laws they want their peace officers to enforce." It's federal law that prohibits local law enforcement from arresting people for civil immigration violations, not some local mandate.

Border security topics took up a big portion of the Governor's speech, so it appears to be a significant priority for him, as it was in 2007. I'm guessing that in the current budget climate, though, some legislators might look askance at spending another nine figures on border security grants that recent reports say generated little crime fighting bang for the buck.

Will new House committee oversee juvenile justice?

Commitee assignments haven't been made yet in the Texas House, but the Austin Statesman's Mike Ward reported yesterday that under a new, proposed committee structure contemplated in proposed House rules:

the House Corrections committee would lose its authority over the Youth Commission. It would be moved to a new Juvenile Justice Committee, which would also oversee the Office of Independent Ombudsman.

In the past two years since a sex-abuse and coverup scandal, the Corrections Committee has pressed Youth Commission officials hard to fully implement reforms — too hard, agency officials have complained. They have continued to drag their feet at being held accountable for continuing problems, committee members and staffers have countered.

The change comes as the Sunset Advisory Commission recently recommended a merger of the Youth Commission and the state Juvenile Probation Commission, a change that both agencies — and some aides to Gov. Rick Perry — have opposed.

Indeed, Madden's Corrections Committee chairmanship may be in jeopardy, Ward reported:

Word is circulating fast and furious this afternoon that Madden, a longtime supporter of deposed House Speaker Tom Craddick, may get the boot as chairman of House Corrections.

However, I'm not sure I agree with Ward's assessment that:

By ending the Corrections Committee’s authority over the Youth Commission, the agency could perhaps get an easier ride in the House this session. But that won’t help in the Senate, where the Criminal Justice Committee appears to want to keep the heat on the Youth Commission.

Opponents of the change say it is reprisal for Corrections Committee members, especially Chairman Jerry Madden, R-Richardson, demanding continued accountability from Youth Commission officials.

Supporters claim Madden and others have pushed too hard and should get the boot.

I'd imagine the change has more to do with greasing the skids for some version of a merger between TYC and the Juvenile Probation Commission, about which Madden had been skeptical, than some latent concern that Madden has been laying the whip too hard to TYC!

MORE: Ward has this update announcing that his prediction may have been premature:

Late word this evening of a push by House Democrats and some Republicans to keep the Texas Youth Commission under the jurisdiction of the House Corrections Committee. ...

Instead of having a Juvenile Justice Committee, a Public Safety Committee is being supported to have oversight over state law enforcement agencies.

More border sheriff criminality ... this time on the Red River

The latest elected border Sheriff to go down in flames over corruption charges comes from the Oklahoma border instead of South Texas ("Former Montague County sheriff pleads guilty to sexually assaulting drug suspect," Jan.27):

The former sheriff of Montague County has admitted sexually assaulting a woman after promising her he wouldn't arrest her when deputies found drug paraphernalia in her house.

Bill Keating, whose four-year term as sheriff ended Jan. 1, agreed Friday to plead guilty to a federal charge of deprivation of civil rights under color of law after he confessed to authorities that he had forced the woman to give him oral sex after a drug raid Nov. 14.

Cue Freddie Mercury singing "Another one bites the dust."

Last October we saw a South Texas sheriff who'd received millions in Governor's border security grants arrested for allegedly working in cahoots with the murderous Mexican Gulf Cartel.

Also in 2008, the Bastrop County sheriff was convicted of taking bribes to protect illegal gambling.

The Potter County and Bexar County Sheriffs both lost their jobs recently over corruption charges related to their commissaries, and the Potter County Sheriff was actually convicted of official corruption charges.

The Laredo Police Chief pled guilty in 2007 to bribery charges.

In 2005, Cameron County Sheriff Conrado Cantu was convicted of escorting drug smugglers through his county.

And don't forget the elected DAs: Former "prosecutor of the year" Ray Sumrow, Richard Roach, Chuck Rosenthal admitting to addiction to prescription meds before resigning ... You know, the people who have left the public with this impression.

Truly, I could go on and on.

How is it that the situation in Montague County could have gone on until the Sheriff was entirely out of office? Literally the day he left, his successor shut down the jail and moved out all the prisoners. How long was this situation knowingly tolerated?

This absurdist example is another reason why I support state Sen. John Carona's law enforcement integrity unit proposal. In the real world, enforcement only happens where enforcement resources are expended, and Texas spends too few resources ferreting out public corruption and too much on law enforcement pork.

Did Texas execute an innocent man over junk arson science?

The Texas Forensic Science Commission has hired a world-reknowned expert out of Maryland to decide.

Cell phones still in prisons after zero tolerance contraband policy

The Austin Statesman's Mike Ward reports that the state prison system's crackdown on cell phones and contraband have continued after a lockdown last fall supposedly began an era of "zero tolerance" ("Cell phone smuggling continues," Jan. 26):

More than 200 cell phones have been confiscated in state prison cellblocks since a system-wide shakedown for contraband ended in November, almost twice as many as were seized during the lockdown.

Eight of the phones were seized from death row, where the crackdown started after a condemned two-time murderer called — and then threatened to kill — a powerful state senator.

“We’ve got some hard questions to ask about the zero-tolerance policy they supposedly put into effect,” said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston.

“What do we have to do enforce zero tolerance? What we see doesn’t look like zero tolerance. Obviously, I’m still concerned.”

In truth I don't think "zero tolerance" can ever be more than a slogan in a prison system the size of Texas', just like I don't think it's possible to completely "seal the border."

The best that can be done is to implement systemic safeguards, checks and balances to try to vet as many points of access as possible, and identify inmates possessing contraband through use of informants, periodic sweeps, or other means. But zero tolerance is a sound bite, not a policy. Clearly TDCJ continued diligently searching for cell phones and other contraband after the systemwide lockdown ended last fall, but the reality seems to be that more comes in about as fast as they can find it.

An act of compassion that transcended sports

At the prodding of former Dallas Cowboys football great Troy Aikman, National Football League Commissioner Roger Goodell will hold a press conference on Friday hailing the private high school football coach from Grapevine who engineered a surprise welcome for TYC football players from the Gainesville unit, including cheerleaders, vocal fans, a band, and a forty yard "spirit line" they ran through entering the stadium. (See prior Grits coverage.)

There's no doubt the coach, whose brainchild garnered national media attention, wasn't looking for earthly rewards when he urged half his own team's fans - for one night - to root for the opposing team. But according to AP:

A story in the Fort Worth Star-Telegram the next day led to a column by ESPN's Rick Reilly. Troy Aikman made sure Goodell read it, leading to the invitation for this weekend. The fallout has helped Gainesville, too, with Williams noticing warmer welcomes at basketball games and more kids wanting to play football.

"Coach Hogan inspired an entire community in an extraordinary way and gave those young men on the Gainesville team a chance to believe in themselves," Goodell said. "It's a powerful message and shows how football can be such a positive force in shaping values and building communities."

In a sense, Coach Kris Hogan is right when he said, "I hate it that this thing that we did is so rare ... Everybody views it as such a big deal. Shouldn't that be the normal m.o., though?" But the truth is what happened that night in Grapevine really was rare, special and inspirational - an act of compassion that transcended sports.

Good for Aikman and Goodell and bully for Coach Hogan for this much-deserved recognition.

MORE: I'd missed this excellent, extensive coverage from the Fort Worth Star Telegram by sports reporter Dave Thomas, who covered the game for the paper.

WATCH VIDEO OF THE GAME: Via the Star-Telegram.

Barack Obama's first Texas judicial appointment

Crim Prof Blog points out that when Barack Obama took office, there were 55 vacant federal judicial seats awaiting his appointments. Only one is in Texas, created by the retirement of Judge W. Royal Furgeson, Jr., who began his legal career in El Paso and spent most of his judicial stint in Midland, before moving in 2003 to the San Antonio division of Texas' Western District. Furgeson took senior status late last year, and his is one of 18 seats that have been declared judicial emergencies.

New Harris DA, Sheriff, judges may finally get serious about jail overcrowding

Harris County officials are coming to grips with the causes of jail overcrowding now that the tanking economy means building and staffing a new jail is not an immediate option.

As has been discussed on Grits many times (see below), Harris County's main jail overcrowding problem stems from radical increases pretrial detention: "The number of people in [the Harris County] jail who are awaiting trial has grown by about 64 prisoners a month for the past two years and has more than doubled since 2001," reported the Houston Chronicle ("Harris County taking action to reduce jail overcrowding," Jan. 24).

The shortest distance between the two points would be for judges to reduce reliance on bail bondsmen and issue more personal bonds for petty offenders:

The new Democratic judges, for example, have indicated they will consider releasing more low-risk offenders on personal bonds, returning to a policy virtually abandoned in recent years when Republicans controlled the courthouse. Such bonds, better known as personal recognizance bonds, allow defendants accused of nonviolent crimes to leave jail without having to post bail.

The new judges and District Attorney Pat Lykos also hope the new mental health court just established will help with the problem of mentally ill "frequent flyers" soaking up jail space and resources:

The idea is to defer those defendants to treatment, rather than to repeatedly jail them for relatively minor crimes such as loitering or trespassing.

New Republican District Attorney Pat Lykos also hopes to launch a pilot project to divert nonviolent, mentally ill defendants with less severe diagnoses to a secure facility where they can receive medical care and counseling.

Perhaps the most encouraging aspect of the article is the idea that officials are taking this issue seriously at all.

Major Mike Smith, who runs the jails for new Democratic Sheriff Adrian Garcia, said he has been overwhelmed with requests for meetings with judges, prosecutors and other officials who want to discuss ideas for reducing the inmate population.

“That’s the ultimate answer — to get some of these people out of the jail and into other locales or in the free world where they’re under monitored supervision or enhanced bonding,” Smith said.

For years the only response we ever heard from Harris County pols in response to jail overcrowding was "build, baby, build." Now, though, that approach has become financially untenable; even "Former Sheriff Tommy Thomas postponed plans to build a new 1,100-bed jail in Atascocita amid concerns he would not be able to fully staff the facility." Now, Maj. Smith says he doesn’t "think we can build our way out of the overcrowding issue."

With new judges, a new DA and a new Sheriff, there's reason for optimism, to be certain, but the changes in bail policy are all prospective - nothing's happened yet:

Criminal defense lawyer Mark Bennett said he has not seen signs of a policy shift, but is optimistic one is coming. Holding defendants who pose no threat of hurting someone or fleeing keeps them from going to work and caring for their families, he said. A lot of people plead guilty just to get out of jail quickly, including some who probably are innocent, he added.

Still, the discussion among key players seems more constructive and on point than in the past. There's little doubt they're focused on categories of offenders - pretrial detainees and the mentally ill - where Harris County's "tuff on crime" tactics have been needlessly tough on taxpayers without a commensurate improvement in public safety.

Related Grits posts:

• Bail blunders boost bulging Harris jail population
• Extra bail conditions: When tough on crime means tough on taxpayers
• Should county government subsidize bail bond companies?
• Lack of counsel, information are bail barriers
• Harris County detains low-risk offenders for no reason
• What they're reading at the Harris County probation department
  
• Pretrial detention, unnecessary incarceration driving Texas jail overcrowding
• Counties that rejected new jails must now get serious about diversion
  
• Homegrown Harris Jail Jam: Jailed probationers swell inmate numbers
• Harris revokes probation most among big Texas counties
• DOJ investigating Harris County Jail
  
• Harris County officials wrongly think they'll build their way out of jail overcrowding

And on mental health courts:

• Mental health courts: A strategy that works?
• Prevention, punishment, mental illness and crime
  
• Mental health court primer
• Smith County will create pilot mental health court
• Grayson County will apply to create mental health court
  
• Federal bill backing mental health courts a teaspoon of remedy for an oceanic problem

Secret police reports are anathema to justice

Kudos to new Travis County DA Rosemary Lehmberg for altering her department's longstanding policy of making defense lawyers copy police offense reports by hand instead of giving paper or electronic access. Keith Hampton, the legislative chair of the Texas Criminal Defense Lawyers Association, wrote in the Austin Statesman ("Key legal reform would serve the interests of justice and taxpayers," Jan. 23) about the new policy change, contrasting it with Williamson County, where such reports are kept secret until trial:

For years, the court-appointed lawyer would appear in court to read the police report which he would then laboriously write down in his notepad. This elaborate discovery process meant tax-paid hours for lawyers to hand-write reports which today can be transmitted electronically and at virtually no cost. The Travis County district attorney's office has taken this quill-and-ink criminal procedure directly into the electronic age, saving time and money, and ultimately contributing to justice.

In leading the way on this cost-saving measure, Lehmberg also reaffirmed the fundamentals of our system and demonstrated confidence in the quality of her prosecutors. A prosecutor whose sole aim is to see justice is done is unafraid that his adversary may be reading from the same report — after all, an accurate and thorough investigation convicts the guilty and protects the innocent. Unfortunately, maintenance of secret police reports is still the norm in some jurisdictions, such as Williamson County.

The Williamson County district attorney's office not only denies counsel copies of reports duly prepared by police agencies, but even refuses to permit lawyers to read from them. Counsel is entitled to review the reports only at trial — a little late, if you are the unfortunate person on trial for a crime you didn't commit. This attitude reflects a neurotic insecurity about the talent and skill of its own prosecutors as well as distrust of the honesty and competency of local law enforcement. Worse, it suggests a need to hide police reports to maintain an unfair advantage, a policy elevating conviction rates above the interests of justice. Police reports should enter the sunshine of the adversary system earlier, more efficiently and more justly, as state lawmakers are preparing to ensure.

The police-report secrecy policy is driving lawmakers to consider discovery reform once again. One measure would mirror Lehmberg's approach as a model for the rest of Texas, which leaves discovery largely in prosecutors' hands. Another proposal would create a more elaborate, mutual discovery process. In either case, Travis County is ahead of the rest of the state and has demonstrated how efficiency and fairness are not mutually exclusive.

Juvie diversion grants helped keep youth out of TYC

The Juvenile Probation Commission has posted on its website this summary (pdf) of how Texas' largest counties spent grants given to their juvenile probation departments to divert chronic, serious offenders away from youth prisons as part of the 2007 SB 103 reforms. These eight pilot programs diverted youth from TYC for an average cost of $2,416.50 in FY 2008, with varying degrees of success.

I pulled these topline summaries of the different county programs from the report:

"Bexar County developed the Intensive Community Based – Kids Averted from Placement Services (ICB-KAPS) program. ICB-KAPS is an in-home family services program for offenders at risk of serious, violent, or chronic delinquent behaviors. ICB-KAPS is provided by the Teen and Youth Services division of Baptist Child and Family Services. ... Average spending per participant was $4,500."

"Cameron County developed two programs. From December through May, the department operated a program called the One Stop Intervention Program. Due to construction restraints and the Courts’ request for a more punitive approach, the County replaced the One Stop Intervention Program with the Saturday Academy which was operated from the beginning of July until the end of August. ... Average spending per participant was $1,136."

"Dallas County expanded their existing family preservation and home detention supervision programs to create the Dallas County Intensive Community Based Program. ... Average spending per participant was $2,647."

"Denton County developed a new program called the TARMAC Program (Take Action, Re-Integrate, Make A Change). The TARMAC Program is an afterschool program that helps at-risk juveniles and their families learn skills to achieve their academic goals, become more successful at school and prepare for life. Denton County contracts with Communities in Schools of North Texas to provide services. ... Average spending per participant was $1,531."

"El Paso County expanded their existing Serious Habitual Offender Comprehensive Action Program (SHOCAP). The SHOCAP team consists of four juvenile probation officers, two field compliance officers (certified detention officers), and three El Paso Police Officers. ... Average spending per participant was $2,083"

"Harris County created the Harris County Advocate Program. The program relies on collaboration with child welfare, juvenile justice, behavioral health, disability and education systems to develop and offer community-based alternatives for the highest risk juveniles and their families. ... Average spending per participant was $1,092."

"Tarrant County created Project ASPECT, a new intensive community-based program targeting juvenile offenders who would have been eligible for commitment to TYC under prior law. ... Average spending per participant was $1,452."

"Travis County expanded the capacity of the Travis County Juvenile Probation Day Treatment Program. This program provides evidence-based intensive substance abuse treatment and academic instruction for youth between the ages of 13 and 17 who might otherwise be placed in a secure care institution for issues of substance abuse and delinquent behavior. ... Average spending per participant was $4,891."

See the relatively short (10-page) summary (pdf) for more details.

Texas set to execute defendant who was in jail at the time of the crime

UPDATE (1/26): Swearingen has received a temporary, last-minute reprieve from the federal 5th Circuit Court of Appeals.

DNA may have identified another innocent man convicted and sentenced to Texas death row, says a Houston Chronicle editorial ("Room for Doubt," Jan. 23), but he'll die on Tuesday unless Governor Perry stays the execution:

Larry Ray Swearingen has lived on Texas death row for eight years, convicted of the rape-murder of a Montgomery County coed in 1998. He is scheduled for execution by lethal injection in Huntsville next Tuesday, despite the fact that a growing body of evidence indicates he could not have strangled 19-year-old Melissa Trotter and dumped her body in Sam Houston National Forest. ...

While plenty of circumstantial evidence indicated Swearingen, a convicted rapist, was a logical suspect, forensic facts not presented at his trial point elsewhere. Trotter’s body was discovered 10 years ago on Jan. 2, nearly a month after her disappearance from the Montgomery College campus in Conroe.

However, Swearingen was jailed on traffic warrants three days after the woman went missing. Although prosecutors theorized that Trotter was killed and her body dumped in the forest the day of her disappearance, the corpse was amazingly well preserved when discovered. Six physicians and forensic scientists who reviewed the evidence concluded that the victim died well after Swearingen’s arrest.

Former Harris County Chief Medical Examiner Joye Carter, who testified against Swearingen in his trial, reexamined the physical evidence and has concluded that Trotter’s death occurred at least a week after Swearingen was taken into custody.

One expert, using a technique familiar to viewers of the CSI TV series, confirmed that finding by dating the development of insect larvae in the victim’s body.

Other exculpatory evidence included blood samples found under Trotter’s fingernails and a pubic hair recovered from a vaginal swab that came from someone other than Swearingen. ...

Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

According to the Austin Statesman's coverage, the Court of Criminal Appeals threw out the claim without ruling on the merits of the new forensics:

Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.

The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.

The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.

Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.

Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.

In such instances, I'm hard pressed to understand why prosecutors or the AG are so gung ho dismiss a viable actual innocence claim without vetting it thoroughly. After all, if Larry Swearingen didn't do it, that means the real killer is still out there.

It's similarly hard to see how the Court of Criminal Appeals members could sustain this conviction, ignoring on a legal technicality the recantation of the state's own forensics expert. Certainly that should meet the standard that "no reasonable jury" could have convicted Swearingen, knowing then what we know now.

Nationwide, about 2.3% of capital convictions are later overturned because the defendant was actually innocent, found a recent study out of Michigan State. The Court of Criminal Appeals' conduct in this case makes you wonder how many more were innocent but executed anyway.

More Madoff fallout

I was sorry to see this news from the Texas Observer:

Ana Yañez-Correa, executive director of the Texas Criminal Justice Coalition, says her nonprofit lost $119,000 in JEHT support for its juvenile justice program. “I’ve got a short amount of time to fill that gap,” she says. “Or else we have to let our program staff go.”

Kids guarding kids

While we haven't seen many staff prosecutions as a result of the contraband scandal in Texas adult prisons last fall, news arrives from Waco of a 23-year old TYC guard receiving a four year prison sentence for smuggling pot onto the Mart II unit. "Judge Matt Johnson of Waco’s 54th State District Court rejected a plea agreement between [Phillip Patrick] Spain and the McLennan County District Attorney’s Office that called for Spain to be placed on felony probation for 10 years."

Like the sex abuse allegations revealed in December, I think about this news with mixed emotions. On the one hand, clearly the agency's problems aren't fixed.

On the other, it's likely these issues would never even have come to light two or three years ago before the Office of Inspector General was created, and no prison - adult or juvie - is immune to corruption of youthful, underpaid, unqualified staff.

When you have a 23-year old guarding high school age youth, the risk they'll find they have more in common with the inmates than with their employer is always there.

It's also notable that the judge insisted on a harsher sentence than the District Attorney had agreed to; clearly officialdom is treating TYC cases a lot more seriously than in the past, for good or ill.

So the checks and balances installed at TYC appear stronger than in the past, but the agency sure could use a respite from the hail of bad news over the last couple of years. Mr. Spain did his coworkers no favors.

Proposed Michigan model would reduce Texas' incarceration costs

I'm on my way to Big D for a meeting and an overnight stay, and likely won't be posting again until the weekend. But I wanted to refer readers to this post from Doc Berman about a sentencing proposal in Michigan to save money on incarceration costs:

The State of Michigan could save $262 million in prison costs by 2015 by bringing parole policies in line with other states – and releasing thousands of prisoners earlier – according to a yearlong analysis of crime and punishment conducted by national policy center. ...

The key recommendation, to require most prisoners to be released after serving 120% of their minimum sentence, was endorsed by Republican and Democratic lawmakers and representatives of Gov. Jennifer Granholm, who have been working with the center on the analysis.

Such a change would have a huge impact on Texas' prison population if implemented here, particularly since fully 2/3 of TDCJ inmates are parole eligible.

Use this post as an open thread to discuss whether its time for Texas to reduce inmate populations so the state can afford to adequately pay guards and safely staff prison facilities, as well as pros and cons of the Michigan approach in Texas.

Need for eyewitness improvements recognized

Reacting to news that Dallas police will change their policy to require "blind" administration of photo lineups and showing photos one at a time instead of in a group, the Corpus Christi Caller Times editorialized today that, "If blind sequential lineups can reduce eyewitness mistakes, as the studies indicate, then every police department in Texas should be using that procedure."

Sen. Rodney Ellis, readers will recall, has filed SB 117 that would require Texas law enforcement agencies to create or modernize policies on conducting photo lineups - 88% of departments don't have any, and most that do don't conform to current best practices.

In related news, Roy Malpass, an eyewitness identification expert from the University of Texas at El Paso will be allowed to testify in a high-profile Louisiana murder trial whose outcome depends on eyewitness testimony.

RELATED:

• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• 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
• UTEP creates one stop shopping site for eyewitness ID procedures

More things prosecutors hate about defense attorneys

Reacting to an anonymous Fort Worth prosecutor's list of the top ten things he hates about defense attorneys, over at the prosecutors' association user forum they've added quite a few more complaints to the list.

What to make of last-minute Bush clemencies?

Quite a few of my favorite blogs are producing good commentary about President Bush's last-minute pardons of two Border Patrol agents convicted of shooting an unarmed drug smuggler in the back near the Mexican border in Texas' western federal district. See commentary from Jacob Sullum at Reason Hit and Run, Doc Berman at Sentencing Law & Policy, Paul Burka from Texas Monthly, Jeralyn at Talk Left, and P.S. Ruckman at Pardon Power.

In the comments over at Paul Burka's shop, I offered my own view on the sentence commutations:

1) The BP agents committed a crime, covered it up, and deserved to be punished.

2) Their sentences were too long because of federal mandatory minimums sweepingly applied in an utterly undiscriminating fashion.

3) Therefore the commutations were justified based on the specifics of the cases, but

4) There are many, many thousands of similarly situated offenders who also received excessive, unfair prison terms under federal sentencing guidelines, so

5) It’s hypocritical to pick out two defendants whose commutations pander to Lou Dobbs and the right wing base while not applying the same principles of justice to others who are subject to indefensibly long mandatory minimums.

What's your opinion about the President's final act of clemency?

Prevention, punishment, mental illness and crime

The US Supreme Court has said executing the mentally retarded is unconstitutional, but the mentally ill are still fair game. Dr. Lucy Puryear, a clinical psychiatrist from the Baylor College of Medicine offers a thoughtful discussion at Women in Crime Ink regarding the astonishing case of Andre Thomas, a schizophrenic death row inmate who plucked out his only good eye and ate it (he'd pulled the first one out while sitting in jail awaiting his capital murder trial), adding a whole new dimension to the biblical adage, "an eye for an eye."

Thomas' crime couldn't have been more horrific. As Dr. Puryear described it:

In 2004 Andre Thomas killed his wife and children, cut their hearts out, put the hearts in his pocket, and walked outside. He then went home, put them in a plastic bag and threw them out. He stabbed himself three times in the chest and then walked into a police station to report his crime.

But while most of the public debate about Thomas revolves around whether he should be executed for his crime, Dr. Puryear offers a more constructive reaction, wondering how his crime might have been prevented in the first place:

To those of you who would suggest that I am soft on crime, consider this novel idea. How about we make mental health treatment available in the community to those who need it. Had Mr. Thomas been adequately treated and monitored he never would have killed his family or plucked out his eye. Three people would be alive today and an enormous amount of money would be saved keeping him out of the prison system. That's not soft on crime, that's preventing crime.

Excellent point! Given that Andre Thomas had twice sought psychiatric help at a local hospital in the weeks before he murdered his family, these observations are particularly salient. In the comments section she added:

I am not suggesting that being mentally ill is a get out of jail free card.

I am saying that the system is broken. That people with severe mental illnesses often do not receive adequate care in the community. It can take three months or longer to get an outpatient appointment in our "free" (paid for by taxpayers)mental health system in Harris County. While waiting for these appointments people go off of their medications, become ill, and SOME commit crimes.

Puryear particularly lauded Harris County's recent creation of a mental health court:

There may be one way to make some sense out of the issue of the mentally ill who commit crimes. Several communities have Mental Health Courts. These courts are in place for those defendants who have histories of mental illness before committing a crime, or committed a crime while mentally ill. The lawyers, judges, and others assigned to these courts have special training in mental illness and are equipped to knowledgeably handle these defendants. Instead of the revolving door from prison to back on the streets where psychiatric care is lacking, then back in prison when another crime is committed, these persons can be put into a system where follow-up is mandatory and resources are available. Another example of not being soft on crime, but preventing crime.

And in the comments, the good doctor mentioned a common sense solution for mentally ill offenders who go off their meds:

When I worked briefly in Ohio we could get outpatient commitments that meant that a patient was mandated to attend outpatient appointments. If they did not show they could be picked up and returned to an inpatient facility.

Dr. Puryear's post reminds us that by the time mentally ill people commit heinous crimes, we're having the discussion too late.

I really admire Lucy's professionalism and her common sense reaction to this sad, heinous case. While most of us, myself included, can do little but gape in awe at such a monstrous crime, her writing demonstrates an ability to perceive the thread of humanity underlying Thomas' illness and recognize that, even though a horribly tragedy occurred, the outcome wasn't inevitable. If society learns the right lessons, maybe more such horrific cases can be prevented in the future.

Budget Choices: TDCJ needs more money or fewer prisoners

More detail emerged yesterday on Texas' budget crisis and the implications for criminal justice policy. Reports the Austin Statesman ("Proposed budget shows $3.7 billion shortfall," Jan. 21):

Maintaining basic state services over the next two years will cost Texas almost $84 billion, $3.7 billion more in general revenue than the state expects to raise during that period, according to the Senate budget introduced Tuesday.

However, a proposed 20% pay hike for adult prison guards and parole officers didn't make it into the draft budgets, nor did security improvements aimed at reducing contraband flows:

Among the budget increases proposed for Texas' prison system were $22.2 million for pay raises for correctional and parole officers, and $10.4 million in bond funds to repair the Hurricane Ike-damaged prison hospital in Galveston.

The proposed pay raises were far less than the $453.4 million sought by prison officials, and the budget did not address the $176 million needed for cost increases this year and the $66 million sought for security upgrades.

It's not at all clear TDCJ could safely operate without a much larger portion of the increases they've requested because past agency decisions to underpay staff, skimp on healthcare and ignore needed security improvements have backed officials into a financial corner. TDCJ's cost per prisoner in recent years has been artificially low and cannot be sustained at current levels.

I've said before, given TDCJ's understaffing crisis (they're around 3,000 guards short of minimum staffing), perhaps it's now time to consider actually reducing the size of Texas' Prison Nation in order to stave off rising incarceration costs.

If you add up every Texan currently in prison, on probation, on parole, or sitting in a county jail, it totals slightly more than the number of residents living in Austin - about one out of every 21 adults. At more than 737,000 people, they would make up the fourth largest city in the state after Houston, Dallas and San Antonio. Indeed, that's more than total 2004 populations of Washington, D.C. and four US states: Alaska, North Dakota, Vermont and Wyoming.

Can we really afford for the corrections system to supervise the equivalent of a major Texas city? According to TDCJ's official budget request, the agency needs around $1.2 billion extra over the next biennium to safely house the same number of prisoners it has now.

Other states facing budget crises are looking to reduce prison populations to save money, and if Lone Star legislators won't pony up enough to safely guard the 112 prison units TDCJ operates, Texas should do so, too. It wouldn't be that hard, since fully 2/3 of Texas prison inmates are parole eligible.

Alternatively, a bipartisan group of judges from Houston recently suggested another way to diminish new prison entries - reducing to a Class A misdemeanor charges against low-level, nonviolent drug offenders who possess less than a gram of a controlled substance. There are quite a few ways the Lege could skin that cat.

The Texas Legislature should at least ask the question: How many fewer prisoners would we have to have for the Department of Criminal Justice to a) live within its means and b) still provide adequate security and staffing?

Herring, civil liability, and Texas' exclusionary rule

Smart folks are still trying to work out whether the Herring case decided last week by the US Supreme Court narrowing the exclusionary rule is a big deal or a little one, and several good blog posts by attorneys have helped me think about the issue more concretely.

Kent Scheidegger even thinks "Herring may be setting the stage for the Holy Grail -- overruling Mapp v. Ohio," which extended the federal exclusionary rule to state courts. (That would be his "Holy Grail," btw, not mine.) He says that after Herring, arguably, "a defendant seeking to suppress evidence [must] establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was ... 'deliberate, reckless, or grossly negligent conduct'." That would limit exclusion to an incredibly narrow class of cases.

Outside of federal court, for Texans, at least, the impact is much less profound. Robert Guest points out that Texas relies on our own state statutory exclusionary rule, not one created by federal courts.

So when you hear complaints that the exclusionary rule amounts to judges "legislating from the bench," that's a reference to the federal debate. In Texas, legislators crafted the rule back in 1925. The current version reads:

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Guest points out that the Texas Court of Criminal Appeals in 1999 already created the same loophole in Texas' exclusionary rule as SCOTUS just created in federal Fourth Amendment doctrine.

Tom Goldstein had expressed concern that Herring, for the first time, "extended the good faith exception to ordinary police conduct" (though Orin Kerr disagrees). Whatever the case, though, Texas' statute already has a "good faith" exception written into it that the CCA ruled allows evidence admitted from an arrest based on a recalled warrant - the identical circumstance that SCOTUS addressed in Herring.

So while the ruling will limit evidence exclusion in federal cases, for state cases, which involve the vast majority of police searches, the "new" extension of a good faith exception to police is mostly redundant - the Court of Criminal Appeals already went there years ago.

Herring also brought out more traditional, debates over whether the exclusionary rule is a viable public policy approach, regardless of whether it's created by the Legislature (as in Texas) or the federal courts. The National Review's Jonah Goldberg argued that "I don’t see why cops who break the rules intentionally or unintentionally should be punished by having objectively guilty criminals let loose on society."

To this, Instapundit Glenn Reynolds replied with a comment that almost precisely reflects my own view:

These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.

Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready.

If the alternative is a constitutionally originalist approach that eliminates judicial-invented immunity for police and prosecutors, I'd gladly agree there'd be little need for an overt exclusionary rule. Such matters could be handled in the civil courts, as the founders intended. Short of that, however, eliminating the exclusionary rule would remove the only significant institutional check on certain types of official misconduct without creating a viable alternative to prevent abuse.

False confessions here, there, and yon

Our pal Rage Judicata points to a Houston case where new DNA evidence appears to contradict a recanted confession by Charles Raby, who was convicted of murdering 72-year old Edna Franklin in 1994 and currently resides on death row. According to the Houston Chronicle, "recent DNA testing on genetic material found on Franklin’s blood-caked fingernails points to someone else, Raby’s lawyers contend."

In response, Rage poses a question discussed on Grits before, and which I think must bewilder every right thinking person who considers the issue of false confessions:

I just don't understand how someone not guilty of murder could confess to it. Or why he was sent to death row despite a confession--usually that gets you a plea. I can see confessing to theft to get out of jail time, but murder? Of killing a small, frail, woman?

The idea of confessing to such a monstrous act does seem inexplicable. Yet we see false confessions in even the most heinous of crimes.

For example, I couldn't imagine an innocent person admitting to a worse crime than Austin's Yogurt Shop murders, where four teenage girls were raped and murdered and the building torched to destroy the evidence. But some 50 different people confessed to that high-profile atrocity, most of whom police could easily show had nothing to do with the offense.

The reasons vary. Some were mentally ill. Some were weak minded people trying to please authority. And some of them succumbed to harsh or deceptive interrogation techniques, particularly by later-defrocked homicide detective Hector Polanco, who has a history of securing false confessions.

Robert Springsteen and Michael Scott confessed to the Yogurt Shop murders after long, grueling interrogation sessions. (For Michael Scott, it went on 20 straight hours). Those confessions led to their later-overturned convictions after they recanted and the courts wouldn't let the prosecution use their statements against one another. No other evidence implicated the pair.

In the Yogurt Shop case, recently tested DNA ultimately disproved the prosecution's original, convicting theory, and, just as with Raby, points to some heretofore unidentified perpetrator. You could say of the Yogurt Shop defendants, just as Rage said of Raby's case:

It will be interesting to see how the state explains the new DNA results and if their theory at trial was that he acted alone this may be just enough evidence for a new trial--or at least it would be if the CCA didn't allow new theories to be brought up on appeal, which they do in cases like this.

A new theory that explained why Raby's DNA wasn't found on the victim's defensive wounds would likely require the existence of an accomplice, which would contradict the eyewitness who saw Raby, alone, jump a fence (from across a yard, at night) around the time of the crime. In the Yogurt Shop case, I'm not sure what new theory (besides actual innocence) explains why the DNA of a confessed rapist wouldn't match the crime scene rape kit.

These are not isolated incidents. Yet another recent capital murder case, this one a quadruple murder in Collin County, endured an especially tortured investigation process thanks to false confessions by three different, unrelated suspects, none of whom authorities now believe were actually involved in the crime. (They're still in trial; one hopes, now, they've finally got the right guy.)

Like Rage, I think most of us can only shake our heads and admit we "don't understand how someone not guilty of murder could confess to it," though academic research is beginning to provide compelling explanations.

False confessions challenge our core assumptions. When Rage writes, "I can see confessing to theft to get out of jail time, but murder?," he's expressing what's probably most people's common sense reaction.

But in fact, when you look at the likely false confessions in the high profile cases discussed above, it almost seems they're more likely in a heinous case than in a petty theft. After all, nobody's going to spend 20 hours interrogating a shoplifter, so they might never be subjected to the level of coercion and manipulation that cause a murder suspect to succumb.

University of San Francisco law prof Richard Leo suggests recording interrogations would at least provide a record to evaluate later whether a confession was likely false, and certainly in Raby's case it would be nice to go back now - given the conflicting evidence - and hear what he actually told investigators when he confessed, and under what circumstances.

Senate committee: Asset forfeiture too often a 'profit making' venture

In criminal trials the burden of proof falls on the state, which is why Texas prosecutors prefer to get asset forfeiture cases into civil court, where the burden lies with the property owner.

However, if the Texas Senate Criminal Justice Committee had its way, says their interim report (large pdf), the state would change the asset forfeiture law so the burden of proof shifts to the government to prove property was tainted by illegality, where currently that burden lies on the property owner. (Interim charge 6, p. 68)

Right now, "In civil forfeiture cases, the burden of proof is on the individual to get the property back from the state once the underlying case is dismissed or acquitted." However, "By placing the burden of proof on the property owner, the government has an unfair advantage over property owners in a lawsuit to get their property returned. Such a fight can come at a great cost to property owners. Therefore the committee recommends for property seized under civil law, the burden of proving the 'guilt' of the property should shift to the government."

If they're making good cases, that new standard should be no big deal. But the committee heard "allegations of profit making" on asset forfeiture cases by district attorneys. "In Texas, with its smuggling corridors to Mexico, public safety agencies seized more than $125 million" in 2007, and "Some poorer counties have come to rely on drug money to pay for their basic operations." The report also documented forfeiture funds spent to pay for office parties, bonuses, trips to Hawaii, and even TV ads for a DA's reelection campaign!

They also intimated that simply improving documentation wouldn't fix the problem:

"Giving seizing agencies direct financial incentives in forfeiture is an unsound policy that risks skewing enforcement priorities," the committee concluded, suggesting that "one approach" to the issue might be to "have forfeited assets deposited into a central treasury at the state level," which would "remove the incentive for law enforcement agencies to focus more on assets rather than criminal acts" and provide "greater legislative oversight of forfeited proceeds."

The committee's final recommendations didn't go that far, suggesting only that the state centralize reporting on asset forfeiture funds and give the Comptroller authority to audit and investigate abuses.

Still, that's a lot of money sitting around in local slush funds. In tight budget times, I wouldn't be surprised to see the Legislature insist that money is spent on things like drug treatment, diversion programs, and other public safety priorities, not just for bonuses, travel and booze.

Sundance Film Touted as Brokeback Mountain meets Catch Me If You Can, Set in Harris County Jail

Congrats to Houston writer Steve McVicker, whose nonfiction tale, I Love You, Phillip Morris, will premiere on the big screen at the Sundance Film Festival starring A-list stars Jim Carrey and Ewan McGregor. Reported the Houston Chronicle:

Signing Carrey to play Steven Russell, a family man and peace officer turned escape artist and one-man Texas crime spree, and getting McGregor to play his lockup lover, Phillip Morris, means the film will get plenty of attention at Sundance and should have good box-office prospects. Last week, the entertainment industry magazine Variety led its Sundance story with a photo from the film and a first-paragraph mention.

Written and directed by Glenn Ficarra and John Requa, the screenwriters of the notoriously funny Bad Santa, starring Billy Bob Thornton, I Love You Phillip Morris is being pitched as Catch Me If You Can meets Brokeback Mountain. The film’s 3-minute trailer, all McVicker has seen or wants to see before Sundance, emphasizes comedy over drama and romance....

The story is bizarre but true. Russell met Morris while in the law library of the Harris County Jail. Russell was in for insurance fraud, Morris for forgetting to return a rental car. It was love at first sight. Romance proved the great inspiration of Russell’s life, but it was also his undoing.

Once Morris was out of jail, Russell developed a bad habit: using wily ruses to break out in order to be with him. While free, he compounded his error by pulling clever cons in order to buy Russell a good lifestyle. Clever or not, he eventually was caught again.

“He’s a really personable guy, very charming,” says McVicker, who interviewed Russell dozens of times in the Michael Unit of the Texas prison system, first for the Press, then for his book. “The kind of guy I’d like to have dinner with, he’s really interesting.

“But he’s also a crook.”

McVicker's one of Houston's top reporters on justice and public safety topics, doing some of his best work at the Houston Press and the Houston Chronicle covering the fallout from that city's infamous crime lab scandal. Perhaps he'll next publish a book on that topic; given the overarching Keystone Kops component to the Houston crime lab story, it might even be the kind of vehicle a comedic Jim Carrey could star in.

Williamson DA sees drug penalty debate as turf war

Speaking of venting prosecutors, what do you think is Williamson County District Attorney John Bradley's biggest beef with a proposal by Houston judges to reduce drug possession penalties from a felony to a misdemeanor?

You guessed it: It would reduce the scope of his personal, bureaucratic turf. We can't have that! Bradley writes on the District and County Attorneys user forum:

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail).

Perhaps so, but those crimes have mandatory probation on the first offense, anyway, so the impact on jails wouldn't be as substantial as Bradley makes out, certainly not "the biggest unfunded mandate ever perpetrated by the Texas Legislature," as JB hyperbolizes. The Lege could further mitigate additional costs by making the charge a state jail felony on the third offense.

There are a lot of public policy benefits to producing fewer new drug felons on possession-only charges: Not only does it save public resources on incarceration, with only a misdemeanor rap, petty offenders won't have the lifelong employment, housing and educational consequences that come with having a felony on your record.

Sentences for state jail felonies are a flat two years, so reduced costs to the state would be substantial - as much as $36,000 in incarceration costs alone for every new felony inmate diverted. That frees up a lot of money, as Judge Michael McSpadden pointed out, to pay for funding new misdemeanor drug courts.

The Lege could also simultaneously enact policies that would reduce jail populations for other drug offenses. E.g., reducing petty marijuana possession to a (ticket only) Class C misdemeanor would reduce arrests, jail overcrowding, indigent defense costs, and actually increase local revenue to help pay for the new Class As because arrests would generate fine revenue.

There are absolutely ways the Texas Legislature could adjust drug penalties that would save the state and counties money overall, if there's the political will. It's fascinating to me that the first argument out of the box from opponents isn't based on some moral commitment that penny ante drug use deserves felony charges, but just that it might slice off a chunk of the District Attorneys' turf.

RELATED: States reducing inmate numbers to save money: Should Texas?

The Top Ten Things Prosecutors Hate About Defense Attorneys

An Anonymous prosecutor vents on Fort Worth defense lawyer Shawn Matlock's blog about attorney-bloggers who "complain about ignorant prosecutors that don't understand the lives of criminals defendants." He seems kinda lonely, though, and would benefit some reader reactions. :) Via Brian Tannebaum.

As always, you can find ongoing prosecutor venting here.

Obama shouldn't waste stimulus money on Byrne grants

Some bad ideas apparently just won't die, we learn from Radley Balko at The Agitator:

President-Elect Obama’s stimulus package calls for $3 billion in new Byrne Grants, and $1 billion in COPS grants—both are federal block grant programs for local police departments. For some reason, Democrats seem to love these grants. The Bush administration and Republicans in Congress had begun phasing them out.

As I explained in a piece for Slate last October, studies have shown both programs to be ineffective at fighting crime. Worse, there’s good evidence that they actually cause harm. While designated for community policing efforts, COPS grants have actually been used by many departments to start or outfit SWAT teams, a point I explicitly made in July 2007 to Rep. Bobby Scott (D-Va.), when I testified before the House Subcommittee on Crime he chairs. Scott seemed surprised when I told him. But apparently, it didn’t affect him enough to prevent him from restarting the program.

Byrne Grants, meanwhile, are often tied directly to drug arrests, warping police department priorities by encouraging low-level drug busts to juke up department arrest statistics . . . so they can apply for more grants. We have Byrne grants to thank for the civil rights disasters in Tulia and Hearne, Texas, and for the continuing problem of out of control multijurisdictional drug task forces.

In Texas, the biggest Byrne grant funded projects have seemed almost cursed. Governor Perry canceled funding for the state's network of regional drug task forces after the scandals Balko mentioned, shifting most of the money instead to border security grants to South Texas Sheriffs (one of whom, ironically, was allegedly on the payroll of the Mexican Gulf Cartel).

But there's a more important, pragmatic reason Byrne grants shouldn't be part of a "stimulus" package: Law enforcement spending doesn't provide the dramatic economic multiplier effects as do other government of expenditures like health care or education.

When the state funds more low-level drug enforcement by regional task forces, for example, a few officers may be employed, a few new vehicles purchased, etc.. But when arrests are made it actually takes money out of the economy and puts potential workers (and taxpayers) 100% on the state's dole - Texas state prisoners cost taxpayers nearly $18,000 per year per inmate.

By comparison, say the feds were to pick up half the tab for the state's Medicaid or CHIP expenses. The feds already match the state's Medicaid contribution by about 2-1 (more for CHIP), so paying half the state's share would mean we get a 4-1 return on our investment or higher, plus more people get health care. Instead of hiring cops and jailers to remove workers from employment, expanding health care increases employment in health care services, products, etc., which increases the multiplier effect even more.

If the feds wants to invest in jobs programs, cops and 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.

Unlike Balko, I'm actually more or less a Keynesian; I believe in the idea behind the stimulus package, including assistance to states. But Byrne grants aren't good stimulus. They should only be debated on the law enforcement merits (and on those, they should be rejected). They're by far among the worst available options for boosting the economy.

RELATED (Updated 1/17): While we're on the subject of the incoming president's economic policies, I noticed Obama has floated the name of a new chief of the Ex-Im Bank, Fred Hochberg, who has mostly garnered attention because he would be Obama's first openly gay appointee. Whoever is the new head of the Ex-Im Bank, they need to revisit the inadequate due diligence policies installed by their predecessor after the agency gave loans to fake companies associated with the bloody Juarez cartel. We've seen a few media reports and one arrest, but I'm convinced that's only the tip of the iceberg.

Ironically, the man who oversaw the Ex-Im Bank when those loans were made, and whose decision it was to not require more thorough vetting, was later appointed by President Bush as Chief Investment Officer of the Troubled Asset Relief Fund. Personally I'd prefer the new president put somebody in that slot who's a little more keen on preventing fraud.

Dallas PD implements sequential, blind lineups for eyewitnesses

Excellent news!

Houston judges from both parties say reduce drug possession penalties

Here's an astonishing development: Sixteen of 22 Harris County felony court judges, including seven Democrats and nine Republicans, say they favor reduction of low-level drug possession in Texas from a state jail felony to a Class A misdemeanor ("Judge request to decriminalize (sic) drug use gets support," Houston Chronicle, Jan. 16):

State District Judge Michael McSpadden on Wednesday sent a letter to the state’s top officials and Houston’s senators and representatives asking for a change in what he called “draconian” laws.

During the last session, McSpadden stood alone when he asked that charges for possession of a controlled substance of less than 1 gram be reduced from a state jail felony to a misdemeanor. Two years later, judges from both major political parties are joining the Republican who has been on the bench for more than 20 years.

“Sixteen of us feel that it’s just unfair to be convicted for a residue amount and be labeled a felon, which changes your whole life,” McSpadden said. “We’re not talking about legalizing it; we’re talking about making it a misdemeanor.”

Here's the list of judges supporting the change:

Judges who signed on with McSpadden include fellow Republicans Debbie Mantooth Stricklin, Jeannine Barr, Vanessa Velasquez, Denise Collins, Marc Carter, Belinda Hill, Joan Campbell and Jim Wallace.

Democrats supporting the initiative, who were all elected in November, include Ruben Guerrero, Shawna Reagin, Kevin Fine, David Mendoza, Randy Roll, Hazel Jones and Maria Jackson.

This seems like almost a watershed moment; Judge McSpadden has been on this lonely quest for years and deserves a lot of credit for convincing his fellow judges to put their reputations on the line with such a request:

In his letter, McSpadden suggested reducing the charge and mandating drug treatment. He also recommended funding misdemeanor drug courts.

McSpadden said 25 percent to 30 percent of Harris County’s 22 criminal district court dockets are felony charges for less than 1 gram of a controlled substance.

The change, McSpadden argues, would lower dockets and create uniform enforcement across the state. He noted that Dallas County police and prosecutors place a lower priority on these offenses, leading to disparate treatment between counties.

McSpadden said his concerns come from fielding complaints about the system from juries and residents.

“The ‘War on Drugs’ isn’t working, and we as judges realize it,” McSpadden said. “And the public realizes it.”

New Harris DA Pat Lykos offered mostly pragmatic objections to the idea, which, while less than supportive, contrasted starkly to the lock-em-up priorities of her predecessor. Houston Rep. Harold Dutton has filed HB 287 that would enact the change in the law the judges are requesting.

Via Defending People.

Without exclusionary rule, negligent police are just 'wild and crazy guys'

I'd expressed concern that the new SCOTUS precedent from the Herring case decided this week - which says that the exclusionary rule does not apply to negligent errors by the police - will make the problem of rights violations based on database errors even harder to solve. TChris at TalkLeft agreed, declaring "The Supreme Court's decision gives the police little incentive to keep their databases up to date and thus encourages wrongful arrests."

But the discussion from news reports and the legal blogosphere makes me think the implications of Herring are a lot broader than that. Tom Goldstein at SCOTUSBlog predicts that "we will at some point soon regard today’s Herring decision as one of the most important rulings in that field in the last quarter century." That's because:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct. ...

Previously, the Court had applied the good faith exception only to non-police conduct.

In the dissent, Justice Ginsburg said the ruling violates a "foundational premise of tort law":

The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.

One wonders whether the majority's idea that liability doesn't deter negligence will wind its way into SCOTUS' civil rulings on non-law enforcement topics - it's a pretty radical revision of a fundamental legal principle. But as troublesome as that sounds, Goldstein says Ginsburg actually understates the significance of the ruling:

the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.

Scott Greenfield calls negligence the "new loophole" in the Fourth Amendment, while an Indiana University law prof quoted in the New York Times agreed the the ruling has broader implications, declaring, “'It may well be ... that courts will take this as a green light to ignore police negligence all over the place.'” At Lawyers Guns and Money, Scott Lemieux also predicts the ruling will be applied broadly:

while I'm not without a certain sympathy for the idea that it's appropriate to balance the effects of applying the rule based on the effects on a particular case, the fact that the Court permitted an exception in a run-of-the-mill drug possession and gun case as opposed to a serious violent crime makes clear that the cost-benefit analysis will be done with a 2-ton anvil on the state's side. There's no serious weighing of costs and benefits being done here at all.

Doug Weathers, a lawyer-blogger out of Fort Worth, questions whether the ruling promotes negligent policing:

The Supreme Court majority apparently believed that this situation called for a new extension of the good faith exception to include that negligent errors by the police generally do not trigger the exclusionary rule. The Court made much of the "innocent" conduct of the police, however, does this new exception deter police from wrongful conduct to get at evidence or encourage? Rather than encourage professionalism and competence in law enforcement, the ruling today says do your job with negligence if need be because we the Supreme Court have your back. Better for the government to prevail in a single drug case than to protect citizens with a 4th Amendment that punishes the police for their own negligence. The whole thing smells fishy to me.

Robert Guest thinks the search in Herring should have been voided even under the new majority ruling, reasonably asking, "If a recalled warrant is still in the system after 5 months, isn't that evidence of 'reckless disregard' or 'systemic error'?"

Without the exclusionary rule, one wonders what, if any, checks remain on negligent actions by police? Justice Ginsburg's dissent says there are none, because:

Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” .... Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry.

I'd have to agree that without "civil liability," "criminal prosecutions" or "administrative sanctions," I can't see a single, meaningful restraint remaining on negligent police conduct. If the exclusionary rule will not apply in such cases, what if any means are left to deter negligent behavior?

Given that SCOTUS just turned the exclusionary rule into a full-blown joke, Instapundit Glenn Reynolds offered an especially apropos analogy writing about the case in the New York Post:

COMEDIAN Steve Martin once explained how to make a million dollars without paying taxes. First, you make a million dollars. Then, you don't pay taxes. If the IRS finds out, you explain: "I forgot." Then, if that's not enough, you say, "Well, excuuuse me!"

Those negligent police officers are certainly wild and crazy guys!

Layoffs at TYC

Texas Youth Commission Executive Commissioner Cherie Townsend sent out this email today to TYC employees announcing significant layoffs:

I am certain most of you are aware that the Sunset Advisory Commission met yesterday and voted 6-5 to abolish the Texas Youth Commission and the Texas Juvenile Probation Commission and to establish the Texas Juvenile Justice Department by September 1, 2010. It was clear during the discussion that everyone is most concerned with doing the right thing for youth and for our communities. There are differences of opinion on how that might best be accomplished. It’s important to keep in mind that this is merely a first step in a lengthy process that will continue throughout the legislative session and there could be any number of outcomes that result from this recommendation. While we will continue to observe the legislative process, remember that our jobs have not changed. Each day, we need to commit ourselves to providing the best service to our youth, our coworkers, and the State of Texas. As an agency on the path of reform, your competence, dedication and exemplary service is more critical than ever.

Today, I am releasing the second phase of our agency right-sizing efforts. As we have been discussing, it is necessary to adjust our workforce to reflect the agency's reduced youth population and our current appropriations. It is important to note that throughout our right-sizing efforts, we have maintained our commitment to best practice workloads and staffing ratios for juvenile justice and specialized treatment in our staffing plan. JCO staffing/supervision ratios of 1:12, case manager ratios of 1:16 and 1:8 (specialized), and teacher ratios of 1:10 (average) are maintained as we right-size our workforce. And, we have been very careful to ensure that we are maintaining appropriate teacher certifications within our educational programs.

We will be eliminating approximately 430 positions throughout our institutions, effective March 1, 2009. While a number of those positions are currently unfilled, 100 employees will be losing their jobs. By the time you receive this email, most of those who are affected by this latest Reduction in Force (RIF) will have been notified.

I am committed to doing everything possible to assist those affected by this layoff. Human Resources will conduct one-on-one sessions with each affected employee to provide them with specific information about opportunities for transfer to other TYC facilities. Those affected will be given priority consideration to fill vacancies for which they are qualified. Those who would like to transfer to a vacancy at another facility will be reimbursed up to $500 for moving expenses.

While this is a difficult time, this reorganization and downsizing is necessary to accommodate our current youth population and budgetary constraints. There will be one additional step in our right-sizing efforts that will contain a final round of staff reductions, as well as possible facility closures. I expect to announce these actions within a few weeks.

We are all sorry to be losing friends and coworkers whose service and dedication has helped our reform efforts. However, while this time of transition is sometimes painful, it is not endless. Please continue to do your best work and I promise to keep you informed on events affecting our agency.

Sincerely,

Cherie

I'm enabling comments on this post, for now, but please stay on topic and play nice.

Justice News Roundup

While I'm busy today with other tasks, here's a roundup of current criminal justice stories that deserve Grits readers' attention:

Lies and Damn Lies
Six different Dallas police officers allegedly lied in a sworn statement about evidence in a drug case, and the defendant's defense attorneys came up with video evidence to prove the point.

Someplace for 'nowhere kids'
The Waco Tribune Herald has a staff editorial lauding local investments in juvenile justice infrastructure and "lament[ing] the lack of transitional programs for young people returning from the TYC." The Senate Criminal Justice Committee raised similar concerns in its recent interim report (pdf).

Mental Health Court Profile
See an excellent profile of Judge Jan Krocker who will run Harris County's new mental health court.

Recovering addict to preside over drug cases
New Harris County Judge Kevin Fine, himself a recovering addict, wants to focus his docket on drug crimes, declaring "My goal is to help as many people with substance abuse problems that really want help to get help and to reduce the number of those people who go to the penitentiary, because it clearly doesn't work."

Re-Entry Focus of Bexar Ministry
The SA Express News published a feature on Bexar County Detention Ministries and their efforts helping ex-prisoners with re-entry services.

Copkiller Claims Castle Doctrine Defense
Will the Castle Doctrine law passed by the 80th Texas Legislature provide a valid defense for the killer of a Dallas police officer? Possibly: Police lied about who was at the door then tried to force their way in when Officer Norman Smith was shot. The shooter was not the target of the warrant and says he didn't know they were police when he fired.

Defensive, Much?
See an account of Dallas County DA Craig Watkins speech this week to the Texas prosecutors association, but some of them didn't think they needed to hear his message. Said Greg Buckley, the assistant district attorney in Childress County, "I appreciate him wanting to tell us to do the right thing. But it may be that he just has more problems with it in his department than we do." Or it may be that much of Watkins' audience is living in denial.

Innocent and Starting Over
On my brother's blog we find a story of a Louisiana man who's starting his own leatherworking business after spending more than two decades in Angola prison on a false rape conviction.

DOJ Civil Rights Enforcement Tainted
A new report from the DOJ inspector general alleges that the Bush Administration ran the Justice Department's Civil Rights Division to promote a partisan political agenda.

Narco Juniors
Says Reuters, "Feuding gangs in the violent cities of Tijuana and Ciudad Juarez prize teenage drug cartel members, known as 'narco juniors,' because they give the attacks an added element of surprise and because they can't be given long prison sentences, police and social workers say."

Estimating false convictions: Thousands of Texas prisoners are likely innocent

The string of DNA exonerations witnessed in recent years has made everyone in the justice system aware that more innocent people are convicted of crimes than anyone previously thought. But what percentage of total convictions are false ones?

This is a difficult question because it's hard to find an accurate denominator for comparison.

Nobody thinks every innocent person has been identified through DNA testing, and indeed no biological evidence exists to test in the vast majority of criminal cases. So even though we know 39 Texans have been exonerated by DNA, we don't know what percentage of criminal convictions overall are false.

One of the few datasets that generates a statistically viable denominator comes from capital murder cases, for which a new study from Michigan State provides a new, national calculation:

Among defendants sentenced to death in the United States since 1973, at least 2.3 percent—and possibly more—were falsely convicted, said U-M law professor Samuel Gross in a study co-authored by Barbara O'Brien, a professor at Michigan State University College of Law.

If defendants who were sentenced to prison had been freed because of innocence at the same rate as those who were sentenced to death, there would have been nearly 87,000 non-death row exonerations in the United States from 1989 through 2003, rather than the 266 that were reported, the study said.

"The main thing we can safely conclude from exonerations of falsely convicted defendants is that there are many other false convictions that we have not discovered," said Gross, whose research has focused on the death penalty, false convictions and eyewitness identification.

Since 1989, nearly all exonerations in the United States fall into three categories: rape convictions, because of post-conviction DNA testing; murder convictions, and especially death sentences, which are subjected to much more detailed post-conviction reinvestigation than other convictions; and a few groups of false drug and gun possession convictions that were produced by concerted programs of police perjury that later unraveled.

As result, researchers know little about false convictions among crimes of violence other than murder or rape, even though false convictions for robbery could greatly outnumber those for rape and murder. And researchers know next to nothing about false convictions for other types of crimes, such as property crimes, misdemeanors and white collar crimes.

The exoneration rate in Texas for capital murder convictions is slightly lower than in this national study.

Another dataset that lends itself to statistically valid innocence estimates come from DNA exonerations. In Texas, 3.3% of cases solved by DNA evidence resulted in exonerating convicted defendants.

So let's guess that the false conviction rate in Texas is somewhere between 2.3-3.3%: With around 155,000 prisoners, that would mean between 3,500 and 5,000 or so current Texas prison inmates were falsely convicted.

Another 10-15,000 falsely convicted people are on the probation rolls, this data implies - perhaps even more since innocent people may be more likely to accept a plea for probation than risk incarceration for something they didn't do.

That's a helluva lot of folks.

Sunset recommends TYC/probation merger

Last night around 10:30, the Sunset Advisory Commission voted 6-5 in favor of merging the Texas Youth Commission and the Juvenile Probation Commission. So that recommendation will be in the agencies' Sunset bill, though it will still be debated and possibly changed during the legislative process.

RELATED: See Grits' testimony on the merger idea to the Sunset Commission.

MORE: In the Fort Worth Star Telegram, Rick Perry,

Said he is withholding judgment on a state advisory agency’s plan to merge the scandal-plagued Texas Youth Commission, the state’s youth correctional system, with the Juvenile Probation Commission to form a new juvenile justice department. Perry said the TYC is "back on track" after reports of abuses and warned that consolidating agencies sometimes results in "unintended consequences."

Nonprofit seeks juvie justice volunteer

The Texas Criminal Justice Coalition is looking for volunteer help on juvenile justice issues during the 81st Texas Legislature, so I wanted to pass on their request for an Austin-based "research assistant" in case any readers are interested:

TCJC Seeks Volunteers

If you live in Austin and want to participate on the front lines to help reform the criminal justice system, you couldn't do much better than to hook up with the Texas Criminal Justice Coalition , which is looking for research assistants for the 2009 Legislative Session.

The Texas Criminal Justice Coalition, a non-profit policy reform and advocacy organization, has volunteer opportunities open to individuals having an interest in the criminal justice system and a passion for social justice. TCJC is currently looking to fill the volunteer/internship position for a Juvenile Justice Research Assistant. Check out the job description and application here (link to http://criminaljusticecoalition.org/juvenile_justice).

Interested applicants should contact Jazmin at jacuna@criminaljusticecoalition.org or 512-441-8123 ext. 101, for more information.

Exclusionary rule takes a gut shot

Before I had a chance to post on a SCOTUS decision issued today (see the New York Times coverage) that eliminates the exclusionary rule when civil liberties are violated accidentally because of database errors, Texas State Trooper Association attorney Don Dickson left a comment on a related Grits post that essentially sums up my concerns:

by a 5-4 vote, the SCOTUS ruled today that an erroneous crime record - in this case, a warrant which had been recalled but still showed up on someone's records - was not sufficient to trigger the exclusionary rule after a search incident to arrest on that warrant revealed that the subject, a convicted felon, was carrying a firearm and drugs.

I have mixed feelings about the ruling. On the one hand, I feel that the exclusionary rule is an indispensable protection of our civil liberties, and I don't like to see it chipped away.

On the other hand, it's hard to argue with the Chief Justice's statement to the effect that "probable" cause is not metaphysically certain cause. As long as the officer believes in good faith that there is a valid warrant for someone's arrest, then I agree with the Chief Justice that he has "probable cause" to effect the arrest, which in turn triggers the right to search the subject incident to that arrest.

But in a state in which one out of every nine people has an outstanding warrant, and in a state with a demonstrated history of doing such a poor job of keeping accurate crime records, you'd have to say that in Texas at least, the exclusionary rule has just taken a shot to the gut. And the state has been given no inducement to clean up its act.

MORE: See a New York Post column from Instapundit Glenn Reynolds criticizing the SCOTUS decision, declaring, "Being a 'public servant,' apparently, means being free to make the kind of mistakes that the rest of us aren't allowed. "

Dallas eyewitness study delayed

This is a disappointment: The Dallas Police Department waited so long to begin a study on its eyewitness ID procedures that the Urban Institute, which was supposed to conduct the study, had its grant expire and cannot now fund the long-awaited research.

The truth is, Dallas doesn't need a study to improve it's eyewitness ID policies; other agencies have reformed their methods without some expensive study. They should do so, ASAP.

Bexar, Collin probation departments thumb noses at state diversion goals

The main reason Texas does not currently face a prison overcrowding crisis right now has been the implementation over the last two sessions of new diversion programs at local probation departments aimed at reducing felony revocations.

Most local probation departments that received new diversion funding have seen their felony revocation rates decline significantly, according to an analysis by the Texas Department of Criminal Justice (pdf), but three counties receiving grants saw increases in revocations (p. 20):

• Bexar: 79.9%
• Nueces: 10.7%
• Collin: 91.6%

Collin and Bexar's numbers, in particular, are as disgraceful as they are untenable. At this point, if they don't improve immediately, the state should take away their grant money.

I don't know why the Bexar County judges keep probation chief Bill Fitzgerald around at this point. Not only has he alienated the bulk of his employees, he's doing an incredibly poor job running the agency as measured by these outcomes. His probationers simply are less successful now than they've been in the past, and that makes everyone in San Antonio less safe.

Other large jurisdictions did much better - both Dallas and Harris Counties saw a double digit decline, and Travis County, which reported no decline in revocations last year, this time around improved their performance and reduced them by nearly 20%

We also discover from this report that caseloads declined and the number of early discharges from probation increased overall thanks to 2007 funding and changes in the law.

Still, I was interested to learn how rapidly the number of probationers is growing statewide given that crime overall is declining. The number of new probation placements in 2008 was 7.7% higher than the statewide number 2005, TDCJ reports, with the largest county departments witnessing even greater increases (p. 18). That makes little sense to me: If there's less crime, why are there more placements?

Also, I'm not sure I understand why Dallas County has a much higher number of people on probation than Harris County, which has a larger residential population. Dallas supervised 31,708 probationers in 2008 compared to 24,456 in Harris. What explains that?

These data tell us that diversion funding is working, but also that there's still much to do. Even with reduced revocations, it's troubling that the overall probation population is growing at such a rapid clip at a time when crime is declining. And while most large counties are using new diversion tools, clearly Bexar and Collin in particular need to either be brought to heel or have their funding reduced.

TYC merger compromise?

Reports Mike Ward at the Austin Statesman:

A compromise has emerged in the back-room fight over merging Texas’ juvenile-justice agencies — the embattled Texas Youth Commission and the smoothly run Juvenile Probation Commission.

The idea: leave the agencies separate, but put them under one governing board that could oversee both.

Sens. Bob Deuell, R-Greenville, and Craig Estes, R-Wichita Falls, among other lawmakers, are reportedly shopping the compromise around the Capitol this afternoon, to try for an agreement before the Sunset Advisory Commission meets in the morning.

The Sunset Commission is to vote tomorrow on a staff recommendation to merge the two agencies.

Initial reaction to the compromise is split.

Most lawmakers: Two agencies, two budgets, one board? Won’t work.

Others: Might make sense as a start to combine the two.

See related coverage from Ward on the proposed TYC-TJPC merger and an article from the Victoria Advocate previewing Wednesday's Sunset Commission vote on whether to consolidate the agencies.

MORE: Ward lays out four options facing legislators and predicts some version of a merger is likely.

Austin PD failed to report FBI crime data

According to the AP:

Austin is the only major Texas city which does not have statistics included in an FBI midyear report because police officials did not submit the data, citing a lack of personnel.

Austin police spokeswoman Anna Sabana said Monday that departments are only required to submit crime data — the information is sent to the FBI through the Texas Department of Public Safety — for the annual report, which is generally made public each June.

Sabana said that verifying crime statistics before sending them to the FBI is an involved process and that the department hasn't been able to submit data for midyear reports because of "staffing cutbacks over the past eight years," Sabana said she did not know how many positions have been lost since then.

She said 2008 statistics will be given to the FBI by the deadline in early March.

Grits has previously discussed problems with Texas' crime reporting and that Travis County has the worst record in the state for reporting crime data.

To my knowledge, Austin has faced no officer "staffing cutbacks" over the last 8 years, so in all likelihood what's happened is that massive pay hikes for officers have soaked up funding for civilian personnel responsible for APD data entry - another self-inflicted wound created by irresponsible decisions by the Austin city council.

Expert: Yogurt Shop Case a Prime Example of False Confessions

At a meeting this morning of the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit, University of San Francisco academic Richard Leo expounded on his research into police interrogations and the causes of false confessions. (See Grits' prior discussions of Leo's work here, here, here, and here.) What follows is a recap from my notes:

False confessions are exceptions, said Leo, not the norm, but they are caused by flaws in policing techniques that make them much more likely to happen. As has been discussed previously on Grits, most police interrogation training in the United States is based on the so-called "Reid method," which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.

Police tactics that encourage false confessions include erroneous behavior analysis and moving too quickly from the "interview" to the "interrogation" phase.

Much of the behavioral analysis taught by Reid and Associates amounts to "faux psychology," said Leo, about how guilty and innocent people behave that doesn't stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become "human lie detectors," but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.

To be clear: A police interview is a relatively non-confrontational, information gathering process, where police are trained only to use interrogation methods on those they believe are guilty. Interrogation is a "guilt presumptive" process in which officers may lie, yell, intimidate, threaten, offer inducements, or otherwise manipulate suspects to secure a confession.

Leo insisted that police interrogation tactics are the primary cause of false confessions, but thinks that a secondary cause has to do with individual personality types. At risk individuals include juveniles, the mentally retarded, the mentally ill, people who are highly suggestible or compliant, or who have poor memory or high anxiety.

Most false confessors, he said, are "mentally normal" individuals, but those in a risk group are more likely to falsely confess.

There are three types of false confessors, said Leo: Voluntary, Compliant, and Persuaded. To use a current, local example, all three of these false confession types were in play in Austin's Yogurt Shop murders.

Voluntary false confessions typically occur in high profile cases when people come forward of their own volition to confess to the crime. This is a surprisingly common phenomenon -in Austin's Yogurt shop murders, some 50 different people confessed to the crime.

A "compliant" confesson occurs when a suspect confesses at the end of a long, grueling interrogation in order to put an end to the stress and make the interrogation stop. In the Yogurt Shop case, the confession offered by defendant Robert Springsteen falls into this category, he said.

The "persuaded" confessor actually comes to temporarily believe, or at least accept, that they must have committed the crime even when they really didn't. Leo said that Michael Scott's confession in the Yogurt Shop case is a classic example of this, and that he believes Scott is actually innocent with "every bone in my body."

Quite a few "persuaded" confessors have had their convictions overturned by DNA evidence, said Leo, pointing out that DNA evidence failed to corroborate Scott and Springsteen's Yogurt Shop confessions.

In summary, Leo says there are three basic "pathways to false confessions." Police may make "misclassification" errors in which officers misjudge guilt on the front end and mistakenly initiate interrogations. They might make a "coercion" error in which psychological manipulation techniques backfire and intimidate innocent suspects to confess. And police also can make a "contamination" error, in which they inadvertently feed suspects information that later fills out the details of a confession, but which came from the officer, not the defendant.

When it comes to public policy reforms to prevent false confessions, Leo thinks recording interrogations is the best available tool. Generally, he said, police tend to oppose recording interrogations on the front end, but once they've fully implemented the practice, "they love it." While some false confessions still occur when they're recorded (like Scott and Springsteen's), recording creates a reviewable record, eliminates "swearing contests" about what was said in the interrogation room, and protects police from false allegations of misconduct.

Ten states already require recording interrogations, he said. In two of them - Minnesota and Alaska - courts issued the requirement, while elsewhere it was enacted through legislation. Wisconsin's statute, said Leo, is the best version currently available and should be considered a model.

Some states require recording in all felonies, some only for homicides, and the Wisconsin legislation allows exceptions for field interviews and when exigent circumstances prevent recording.

Rep. Jim McReynolds asked about funding, to which Leo replied that this is an often-raised concern by police but their objections can be easily overcome. These days recording is "not super expensive," he said, and digital storage has become especially cheap.

What's more, recording saves the state money at future points in the process, though such savings won't necessarily accrue to the police budget. Overall, recording more than makes up for the minimalist expense by saving time in the courts, mostly because it facilitates plea bargains and reduces haggling over whether confessions are admitted. The recording expenditure more than pays for itself when you consider how much it costs to pay lawyers, judges, bailiffs, etc., for suppression hearings.

While Leo said recording interrogations would be his top recommendation for reducing false confessions, he mentioned several other approaches worth recording here:

• Expanded police training on the causes of false confessions and how to avoid them.
• Create a post-confession review team when a confessor falls in an at-risk group
• Jury instructions where confessions are the primary evidence.
• Allowing expert witnesses in court to dispute confessions.

Those last two on the list are Leo's least recommended options, he said, because they occur so late in the process the damage has mostly been done. He preferred approaches that might catch or prevent false confessions earlier in the process, long before the defendant ever gets to trial.

BLOGVERSATION: From Simple Justice, "The Bricks that Build a False Confession." See also coverage of Leo's talk from the Stand Down Texas blog.

Dallas PD finally launching study of sequential, blind photo lineups

I'd somehow missed a story published in the Dallas News on New Year's Day announcing that the Dallas Police Department is finally beginning its long-awaited study of "sequential, blind" eyewitness ID practices ("After 2 years of delays, study of photo lineups set to start," Jan. 1). Reported the News:

Misidentifications have been cited as a key factor in an estimated 75 percent of the 220 wrongful convictions exposed by DNA testing nationwide since 1989.

The Dallas Police Department, the arresting agency in 13 of the 19 Dallas County exonerations, hopes the study will help determine the best method to keep witnesses from making the wrong choices in a photo lineup.

"We hope to determine what is the best practice and implement policies accordingly," Dallas Police Assistant Chief Ron Waldrop said.

Dallas would become just the eighth police agency in Texas – including Richardson, Lewisville and Haltom City, locally – to use the sequential blind lineup, according to a survey by nonprofit reform group The Justice Project.

Richardson police began using sequential blind lineups after the city had a DNA exoneration in April. Thomas McGowan was incorrectly selected from a simultaneous lineup after a woman was sexually assaulted. He served 22 years in prison after being wrongly convicted in the 1985 burglary and rape.

DPD had earlier announced it would change its policy on "showups" thanks to concerns about misidentification.

State revenue will plummet, says Comptroller

The state of Texas will have $9 billion less to spend than in the last biennium, reports the Dallas News ("Texas revenue estimate down by $9 billion," Jan. 12):

Comptroller Susan Combs today estimated that Texas has about $9 billion less to spend – $77 billion – than it did two years ago.

Combs called her revenue estimate, which caps how much lawmakers can spend in the legislative session that begins Tuesday, “decidedly cautious.”

While Texas dodged many bullets in a national economic slowdown that began just over a year ago, the Republican comptroller said the state’s prosperity has cooled because of raging turmoil in financial, housing and auto markets.

“The effects of what may become the worst national recession in many decades will be too large to avoid,” she said. “The state is not immune.”

Combs said the Legislature will have $77.1 billion in state revenue to spend in the next two-year budget cycle – $9.1 billion less than the $86.2 billion in the current cycle.

That's more than a 10% estimated decline from last biennium - a lot less than earlier predictions, which suggested Texas might have up to $2 billion over and above the last biennial budget to apply toward discretionary spending. The Comptroller's final, official estimate represents a whopping $15.7 billion swing from the Legislative Budget Board's estimates in November.

On the criminal justice front, this news comes as the Department of Criminal Justice is asking for a total $1.2 billion in new spending over the next two years, including a 20% pay hike for guards to reduce high turnover rates and corruption. That's definitely in jeopardy now, as is any new agenda item with a price tag attached to it.

Perhaps this unhappy fiscal news means it's now time to seriously examine more radical possibilities being discussed in other states for reducing corrections costs?

See related Grits posts:

• States reducing inmate numbers to save money: Should Texas?
• Tight budgets and corrections priorities

Obama's DOJ may refocus on prosecuting crime instead of immigration

I'll be pleased if the Obama Administration reverses recent trends at the Justice Department prioritizing prosecution of petty immigration crimes over more serious felonies, as predicted by members of his transition team. The New York Times' Solomon Moore lays out the issue in stark detail:

Federal prosecutions of immigration crimes nearly doubled in the last fiscal year, reaching more than 70,000 immigration cases in the 2008 fiscal year, according to federal data compiled by a Syracuse University research group. The emphasis, many federal judges and prosecutors say, has siphoned resources from other crimes, eroded morale among federal lawyers and overloaded the federal court system. Many of those other crimes, including gun trafficking, organized crime and the increasingly violent drug trade, are now routinely referred to state and county officials, who say they often lack the finances or authority to prosecute them effectively. ...

Immigration prosecutions have steeply risen over the last five years, while white-collar prosecutions have fallen by 18 percent, weapons prosecutions have dropped by 19 percent, organized crime prosecutions are down by 20 percent and public corruption prosecutions have dropped by 14 percent, according to the Syracuse group’s statistics. Drug prosecutions — the enforcement priority of the Reagan, first Bush and Clinton administrations — have declined by 20 percent since 2003.

“I have seen a national abdication by the Justice Department,” said Attorney General Terry Goddard of Arizona.

Texas' southern and western federal judicial districts have been the epicenter of expanded immigration prosecution, so it follows that Texas also suffered the most from a lessened focus on more traditional federal prosecutions.

Who among us thinks illegal immigration has done more harm to the economy than "white collar crime"? Hell, just one white collar defendant - Bernard Madoff - allegedly stole almost three times more from Wall Street investors by himself than was taken in 9.8 million property crimes in all of 2007! Given what's happened recently on Wall Street, I doubt the public would approve of DOJ's declining emphasis on white collar theft.

Indeed, it's hard to understand DOJ's priorities during the Bush Administration viewed through any but the most politicized lens. Otherwise, their decisions make little sense. Though Mexican drug cartels constitute by far the biggest border security threat, for example, DOJ's recent immigration focus has kept federal prosecutors from vigorously pursuing those cases. Reports Moore:

“They’ve pulled so many U.S. attorneys off drug crimes and organized crime caseloads that federal agents are trying to get help from local district attorneys because they can’t wait six weeks for a wiretap order,” Ms. Lofgren said. “By then it’s too late to catch the bad guys.”

Federal agents requested 457 wiretaps in 2007, a 14-year low. Meanwhile, state and local prosecutors requested 1,751 wiretaps, more than triple the number in 1993.

These priorities are unsustainable and must be reversed: I'm hopeful President-elect Obama's new Justice Department appointees will quickly plot a new course.

Tight state budget, minimal results may doom HS steroid testing

AP's Jim Vertuno says that de minimus results and the looming budget crisis may combine to eliminate Texas' $6 million per year steroid testing program for high school athletes:

The results so far have found little to confirm fears that steroid use is a rampant problem. When the first 10,000 tests found only four positive results, critics declared the two-year program a waste of time and money.

Now state lawmakers must decide whether to keep the $6 million program chugging along, scale it down or eliminate it. The 2009 legislative session starts Tuesday. ...

Critics rolled their eyes when the first results were released.

According to a University Interscholastic League report released Dec. 1, the first 10,117 tests produced only the four confirmed cases of steroid use. ...

Republican state Sen. Dan Patrick has been a vocal critic of the tests, calling them a "colossal waste of taxpayer money" that could be better spent battling recreational drug and alcohol use among teens.

Like Sen. Patrick, I've long thought these tests were a "colossal waste of money." I'd suggested testing police officers - for whom the issue is a more serious, documented problem - might get more bang for the public policy buck than going after high school students. When the budget is tight, though, there are many competing demands for that $6 million, nearly all of which would be more productive than this program turned out to be.

States reducing inmate numbers to save money: Should Texas?

AP reports that states are beginning to look at sacred budget cows because of the fiscal crisis and may actually reduce inmate populations to stave off rising costs. ("States look to prisons to save money, including letting some inmates go," Jan. 10):

"Prior to this fiscal crisis, legislators could tinker around the edges — but we're now well past the tinkering stage," said Marc Mauer, executive director of the Sentencing Project, which advocates alternatives to incarceration.

"Many political leaders who weren't comfortable enough, politically, to do it before can now — under the guise of fiscal responsibility — implement programs and policies that would be win/win situations, saving money and improving corrections," Mauer said

In California, faced with a projected $42 billion deficit and prison overcrowding that has triggered a federal lawsuit, Gov. Arnold Schwarzenegger wants to eliminate parole for all offenders not convicted of violent or sex-related crimes, reducing the parole population by about 70,000. He also wants to divert more petty criminals to county jails and grant early release to more inmates — steps that could trim the prison population by 15,000 over the next 18 months.

In Kentucky, where the inmate population had been soaring, even some murderers and other violent offenders are benefiting from a temporary cost-saving program that has granted early release to nearly 2,000 inmates.

Virginia Gov. Tim Kaine is proposing early release of about 1,000 inmates. New York Gov. David Paterson wants early release for 1,600 inmates as well as an overhaul of the so-called Rockefeller Drug Laws that impose lengthy mandatory sentences on many nonviolent drug offenders.

"These laws have neither curbed drug use nor enhanced public safety," said Donna Lieberman of the New York Civil Liberties Union. "Instead, they have ruined thousands of lives and annually wasted millions of tax dollars in prison costs."

Policy-makers in Michigan, one of four states that spend more money on prisons than higher education, are awaiting a report later this month from the Council of State Governments' Justice Center on ways to trim fast-rising corrections costs, likely including sentencing and parole modifications.

"There's a new openness to taking a look," said state Sen. Alan Cropsey, a Republican who in the past has questioned some prison-reform proposals. "What we'll see are changes being made that will have a positive impact four, five, six years down the road."

Even before the recent financial meltdown, policy-makers in most states were wrestling with ways to contain corrections costs. The Pew Center's Public Safety Performance Project has projected that state and federal prison populations — under current policies — will grow by more than 190,000 by 2011, to about 1.7 million, at a cost to the states of $27.5 billion.

"Prisons are becoming less and less of a sacred cow," said Adam Gelb, the Pew project's director. "The budget crisis is giving leaders on both sides of the aisle political cover they need to tackle issues that would be too tough to tackle when budgets are flush."

This development is long overdue. I think most people are unaware of how rapidly prison spending has grown in the last few years. (See good data on the subject from the Council on State Government's Justice Center.) Texas finds itself in a relatively unique position among states, both because our economic base has been hit less hard by the national financial crisis and because the state had already begun significant reforms to stem overcrowding.

Not long ago, Texas' Legislative Budget Board estimated Texas would need 17,000 adult prison beds and at least three new medium security prisons by 2012. But probation revocations declined in most large counties (Bexar is the notable exception, but their probation director has other worries) thanks in part to $237 million in new probation grants aimed at implementing intermediate sanctions regimens and reducing probation officer caseloads.

So in many ways, thanks to truly visionary work by Sen. John Whitmire and Rep. Jerry Madden, Texas is a lot better off than other states struggling with high prison costs. Even so, the Department of Criminal Justice will ask the Legislature for a more than $1 billion increase in its biennial budget, including for pay hikes designed to stem high turnover and deter corruption among prison staff. That's $1 billion extra just to manage the same number of prisoners. This in part is because Texas' prison costs historically have been artificially low and we've reached the point where it's time for our politicians to pay the piper, having already relished the dance.

One suggestion I've not heard publicly would be to follow the lead of these other states and at least debate whether to reduce TDCJ inmate populations instead of spending $1 billion more to house the same number. After all, roughly two-thirds of TDCJ inmates are already parole eligible.

How many fewer inmates would TDCJ need, one wonders, to give officers raises, spend what they need to in order to keep prisons secure, and still operate under its current budget?

TDCJ operates about 112 units statewide, but some are much more expensive to operate than others. Though I've not seen it, at a committee hearing last year the legislature was given a list of the 20 most expensive TDCJ units in terms of per-inmate cost, and the differences were quite staggering. How many inmates would we be talking about to close the most expensive ones? It's worth asking the question.

In Dallas and Sugar Land, local development interests want the agency to close existing units. Talk so far has been about finding another spot for those units, but what if we just closed them (along with the most expensive facilities) and managed more low-level offenders in the community?

How could that be done? Shortening probation and parole lengths is part of it, since that reduces revocations and focuses more supervision resources on the most likely offenders. Schwarzenegger's proposal to eliminate parole is too radical, but reducing its length and making it easier for offenders to earn their way off supervision makes lots of sense from both fiscal and safety perspectives. On the front end, Texas' ten-year probation terms are among the longest in the nation, while most people who re-offend do so in the first 2-3 years (if not the first six months).

Another idea comes from State Rep. Harold Dutton, who filed a bill that would significantly depopulate state jails (like the one in the way of Dallas' Trinity development) within a two year stretch: HB 287 would reduce the penalty for possession of less than a gram of illegal drugs from a state jail felony to a Class A misdemeanor.

There are lots of other ways to skin that cat.

In other states these decisions are being forced down officials' throats because reduced tax revenues are pitting prison expenses directly against schools, health care, and other societal priorities. It looks like Texas may be buttressed temporarily from the harshest of those economic winds, however with oil prices declining, it's likely the gale will be blowing full force by the time the 82nd Legislature meets in 2011.

I'd rather see legislators pick and choose their policies thoughtfully based on economic and public safety priorities than get backed into a corner as has happened in California and now many other states. Perhaps the debate should start now about what it would take for TDCJ to live within its budget instead of only debating how much more to spend every time the Legislature is in town?

Levin: Juvie probation grants proposed by Sunset deserve equal attention to merging agencies

As news of more youth on youth sex assaults at the Texas Youth Commission spawns reclassification and segmentation of inmates and more calls to merge the agency with the Juvenile Probation Commission, Marc Levin of the Texas Public Policy Foundation rightly argues in a Houston Chronicle column ("Consider competition in efforts to reform juvenile justice system," Jan. 10) that the debate over merging agencies has obscured a perhaps more important recommendation from the Sunset Advisory Commission:

Although the consolidation recommendation has attracted the most attention, Sunset's proposed pilot program represents the most fundamental and welcome shift in juvenile justice policy.

The recommended pilot program would allow county probation departments to keep some of the funds that now go to incarcerate that county's youths at TYC. In Ohio and Illinois, this approach has proven to save money and reduce recidivism. Youths benefit from being closer to their families and communities, while taxpayers save because local solutions cost less than TYC. In this scenario, TYC would compete on recidivism and cost with local lockups called post-adjudication facilities run by counties and private operators, as well as non-residential alternatives such as day reporting centers. It would also eliminate the fiscal incentive to unnecessarily refer youths to TYC in order to preserve county funds.

In Ohio, this remittal of funding to counties reduced commitments to state lockups by 36 percent and cut recidivism from 54 to 22 percent. (TYC's recidivism rate is 52 percent.) Under Ohio's Reasoned and Equitable Community and Local Alternative to Incarceration of Minors (RECLAIM) funding system, judges may use the same pool of funds allocated to committing non-violent youth to state lockups for community-based options. The RECLAIM model does not cover youth convicted of the most serious violent offenses. These are actually the youths with whom TYC is best equipped and most effective to deal through its Capital Offenders Program. Ohio's success with pooling funds is not unique. A similar pilot program in Illinois called REDEPLOY reduced youths sent to state lockups by 44 percent and saved $11 million over two years.

The savings in Texas from this pilot program could be much greater. The Sunset Commission identified three TYC facilities that should be closed, each of which holds fewer than 100 youths. Shutting these units down would save taxpayers $25.4 million per year. Texas already has 32 post-adjudication facilities at the county level, costing $90 a day per youth compared to TYC's $153 per youth. In the major urban counties that account for 80 percent of TYC commitments, post-adjudication facilities could compete with TYC to attract placements.

Transparency and performance measures are critical to effective competition. Armed with information including recidivism benchmarks on each TYC and local facility, judges would be empowered to choose the best option based on outcome data for similarly situated youths.

With this pilot program, counties will be incentivized to carefully evaluate youths currently being sent to post-adjudication facilities to identify those that would be appropriate for day reporting centers. Over time, high-performing local facilities may expand to meet demand if TYC continues to produce poor results.

Levin is letting the horse back in front of the cart by emphasizing building up local capacity first, since that's really a prerequisite to downsizing TYC - or whatever you call state-run youth prisons - in the long term. Merger may or may not be a good idea, but downsizing capacity without financing upgrades for locals to manage problem kids is a recipe for internecine rebellion by a variety of local systemic actors - most prominently judges, juvenile probation directors and county commissioners courts.

I don't agree with Marc that this strategy will save money in the short term and I think it's a mistake to sell the idea on cost arguments, particularly at a time when special education in youth prisons, mental health treatment and a suggested, renewed focus on re-entry/anti-recidivism programs all will require greater investment, not less.

Overall, though, I think Levin and the Sunset Commission are onto something with the pilot grant program idea for juvie probation departments. The notion is similar to the grants in the adult system that have re-invigorated probation and reduced the number of incoming prisoners. If the idea works the way they hope, it has the potential for achieving in the long term - further depopulating youth prisons - what in the short term risks creating confusion, unfunded mandates, and an unnecessary backlash.

TV show depicts deception detection science as too exact

FOX TV is heavily running previews for a new mid-season drama called "Lie to Me" that purports to portray a scientist with perpetual five o'clock shadow and his hotter-than-thou research team who are experts in the "science of deception detection" - i.e., telling whether someone is lying.

Says a promo: "Dr. Cal Lightman and his team are effectively human polygraph machines, and no truth can be concealed from them." Of course, as human "polygraph" machines that would make their work discredited, pseudoscientific and too unreliable to use in court, but I'm sure that's not what the producers meant by that line.

The lead character is based on the work of behavioral scientist Paul Ekman whose landmark research cataloging and interpreting facial expressions has led him to create a lucrative consulting business teaching lie detection techniques to various official and corporate entities. FOX TV, naturally, has turned Ekman into a crime fighting detective type. Even more of a stretch, the show takes to absurdist extremes a concept from Ekman and Maureen O'Sullivan's work hypothesizing a small number of people are "truth wizards" who are exceptionally accurate at deciphering lies. In fact, the story goes so far as to pretend the lead character, Dr. Cal Lightman, himself enjoys such abilities.

Inarguably, deception detection using "microexpressions" is a big part of how humans identify deception in an interactive environment. But it can never be 100% accurate, or even close. In practice it's more art than science.

To use a Shakespearean analogy from Ekman himself at a recent MIT conference on security and human behavior, Othello’s error was to read Desdemona’s fear correctly but to misunderstand its cause. We may indeed pick up on these cues, but that doesn't mean they will be interpreted correctly.

Reading micro-facial expressions to identify deception is a core method used in the "Reid technique" of police interrogtion, an approach that provides the basis for most police interrogation training in America. But with the possible exception of a handful of "wizards," there's little evidence police are better at detecting deception than the rest of us. According to the (highly recommended) recent book by Richard Leo, Police Interrogations and American Justice (pp. 98-99):

Numerous controlled studies have shown that people are not good intuitive judges of truth and deception, typically performing at no better than chance levels of accuracy. Controlled studies have also shown that even investigators and other supposed experts who routinely evaluate deceptive behavior are highly prone to error. Moreover, Kassin and Fong have shown that police interrogators and others specifically trained in the [Reid technique] not only fail to discriminate accurately between true and false statements much of th time, but also that behavior analysis training actually lowers the ability of police interrogators to discriminate accurately between true and false denials. Further, such training inflates their confidence in their judgments. (citations omitted)

Indeed, researcher Aldert Vrij thinks overreliance on Ekman-esque micro-expressions ignores more probative cues to deception and may lead to false accusations. According to this abstract from a recent paper:

deception research has revealed that many verbal cues are more diagnostic cues to deceit than nonverbal cues. Paying attention to nonverbal cues results in being less accurate in truth/lie discrimination, particularly when only visual nonverbal cues are taken into account. Also, paying attention to visual nonverbal cues leads to a stronger lie bias (i.e., indicating that someone is lying). The author recommends a change in police practice and argues that for lie detection purposes it may be better to listen carefully to what suspects say

"Lie to Me" premiers on Jan. 14 in FOX's sweet spot right after American Idol, and I'll be watching with interest if also a slightly jaundiced eye. Until then, for those interested in the actual science of deception detection, the always excellent (when the author gets around to posting!) Deception Blog supplied a superb end of the year roundup of deception-related research:

• Part 1: Catching liars
• Part 2: New technologies
• Part 3: Magic
• Part 4: When people lie
• Part 5: Polygraphy
• Part 6: Kids' lies
  

Some judge somewhere declared this guy competent to stand trial

Andre Thomas, condemned to death row after he killed his wife and children and carved their hearts out, in 2004, then plucked out his own eye while he was awaiting his own capital murder trial. Even so, the judge declared him competent and this fall the Court of Criminal Appeals affirmed his death sentence. But before the state could carry it out, while alone in his cell, last month Thomas plucked out the other eye and, apparently, ate it - I kid you not!

I've known for some time that the standards for both competency to stand trial and competency to be executed can be shockingly low, though I've never completely understood the ins and outs of what goes into either determination. Indeed, I know so little about the legal and psychological debates swirling around such issues I hardly know where to begin analyzing such an astonishing story. I'd like to hear more knowledgeable folks - Dr. Lucy Puryear comes to mind - to understand how somebody like this could ever be deemed competent to stand trial in the first place.

RELATED: See this revealing string from the prosecutors' association user forum in which we find speculation that Thomas' self-mutiliation and cannibalism are part of a ruse to avoid the death penalty: "is he truly a whack job, or has he discovered a new dodge?" asks one forum participant. We're treated to a "tastes like chicken" joke, while another poster suggested Thomas was looking for a missing cell phone, to which Williamson County DA John Bradley replied, "Then I would agree he is insane. Because everyone knows you keep those in your rectum." Classy stuff, that.

MORE: For a more thoughtful discussion of the case, including whether Thomas might qualify for the legally anachronistic "wild beast" defense, see RickG's post at the Lone Star Times and the excellent comments in response.

Senate should question Obama's DOJ appointees about using anonymous witnesses

While President-elect Barack Obama's initial picks for key Justice Department posts indicate a likely departure from the more radical counterterrorism tactics undertaken in recent years by the Bush Administration, one recent Texas case raises an issue I'd like to see his nominees questioned about during Senate confirmation hearings: Do they support the use of anonymous expert witnesses in criminal court cases?

That's what happened during the prosecution of five fundraisers for the Richardson-based Holy Land Foundation who were convicted last fall based largely on critical evidence given by an anonymous Israeli intelligence officer. Reported Texas Lawyer:

Defense lawyers for all five men say they will appeal the verdict to the 5th U.S. Circuit Court of Appeals. They will argue, among other things, that Solis should not have allowed prosecutors to call an anonymous expert witness to the stand at trial. Although the defense lawyers objected and asked the court to require the prosecutors to identify the witness, he was only identified at trial as "Avi," a representative of the Israeli government. In his testimony in court, Avi made allegations crucial to the government's case about a link between the Hamas leadership and zakat committees in the West Bank and Gaza that allegedly received HLF funds. "Zakat" in Arabic means the religious obligation to give alms. On appeal, the defense lawyers say they will argue that Avi's testimony violated the HLF defendants' Sixth Amendment due-process rights, because the defense lawyers did not have an opportunity to question the witness' credibility.

"This is the first trial in the history of the United States where that has been allowed to happen," says Joshua Dratel of the Law Offices of Joshua Dratel in New York City who represents El-Mezain.

Even Jacks says the unprecedented victory his team achieved was due, in part, to the unprecedented use of an anonymous expert witness, a point he expects to play a starring role in any defense appeal.

Anonymous Israeli spooks as witnesses? Next will we accept testimony in court from The Zohan? Or perhaps it will be okay for the defense to put on anonymous, exculpatory witnesses whose background prosecutors cannot know?

I definitely hope some senator asks Obama's Justice Department appointees whether they think that kind of evidence is appropriate and whether they'll pursue more cases using secret, anonymous experts.

I stopped watching the HLF case closely after I left ACLU of Texas and had missed this whole issue of anonymous testimony. (An earlier, first run at prosecution stalled out in a mistrial thanks to a deadlocked jury.) Especially given the Supreme Court's recent emphasis on re-sharpening the teeth of the Constitution's Confrontation Clause, this is a tactic I think should be abandoned by DOJ and will likely (rightly) be benchslapped out of existence by the appellate courts.

The outgoing US Attorney in Texas' Northern District hopes the Holy Land Foundation case becomes a model for pursuing terrorist financing. There may be other aspects of the case that deserve copying in other contexts, but the use of secret, unaccountable witnesses to make criminal cases is a tactic that should have been rung out with the new year.

RELATED: Jeralyn at Talk Left suggests an immigration related question for Obama DOJ chief-designate Eric Holder.

El Paso city council says Juarez violence argues for national conversation about pot legalization

No American city has a closer front-row seat to the bloodshed in the Mexican drug cartel wars than El Paso, which sits across the Rio Grande from the Mexican city of Juarez, where more than 1,600 people died in drug-related violence last year. So it comes as little surprise that the birthplace of marijuana prohibition in America wants to start a national conversation on whether to legalize pot as a mean to de-fund the gangsters who've all but taken over their sister city across the river.

The El Paso city council thinks legalization would downsize cartel profits and reduce the edge in resources and personnel they enjoy over Mexican and US law enforcement, reported KDBC-TV:

On Tuesday afternoon El Paso Mayor John Cook vetoed a resolution unanimously passed by city council that would have asked the U.S. government to begin a serious debate on legalizing narcotics.

Earlier in the day city council passed a resolution, rationalizing that the best way to stop the drug wars in Juarez may be to legalize the drugs here in the United States. It was part of a larger resolution outlining several steps for the United States and Mexico to take in order to cut down on the number of murders between rival drug cartels. Last year more than 1,600 people were murdered in Juarez.

"We know that this drug war and this prohibition on drugs is enriching criminals to traffic in narcotics to these communities, which costs the narcotics teams in the U.S. and Mexico billions of dollars," said Councilman Beto O'Rourke, who added the "legalize drug debate" amendment to the already established resolution.

City council members realize it may be extreme to legalize drugs like heroin, but others like marijuana could make sense. Currently, marijuana accounts for 70 percent of the drugs coming across the border. "Any business will tell you, you take a 70 percent hit to your pocket book, you're going out of business," said Councilman Steve Ortega.

Cook says he understands where the council members are coming from, but he's afraid El Paso would become a national laughing stock if he went to Washington and asked people like Senator Kay Bailey Hutchison to look into legalizing drugs.

Scott Morgan at Stop the Drug War poses a simple question in light of the Mayor's veto: If the Drug War is so great, how come you con't want to talk about it?

If I were the Mayor, I wouldn't worry that anybody might laugh given what's happening in Juarez. When they start, he can respond by handing them photo after photo of murdered cops, journalists, narcos and bystanders until they wipe the dumb-ass grin off their faces and begin to take the subject as seriously as it deserves. Or else let them pay El Paso's growing hospital bill from drug-related violence in Juarez.

See related Grits posts:

• El Paso flooded with drugs for five years while authorities watched
• Better border strategies needed for journalist, witness protection, unmasking corruption
• America's Hour For Not Comprehending
• Time for new Mexican anti-drug strategies
• Elected sheriff receiving Governor's border security funds allegedly worked for Gulf cartel
• Cartel violence so far stays in Mexico, but corruption crosses the river
• Plane used for CIA renditions also smuggled drugs
• Prosecuting 'replaceable' cartel smugglers
• Assassination of Mexican prison warden highlights out of control border security crisis
• FBI: Border corruption increasing on the US side
• Cartel corrupted top FBI official in El Paso
  
• Border corruption run amok: New cash for border cops should go first to Internal Affairs
  
• Did Los Zetas infiltrate Collin County law enforcement?
• American guns fueling Mexican cartel violence
• Drug cartels targeting Mexican police
• Cartels openly recruiting military, courting public opinion
• Cartel charity secures goodwill among Mexican public
• Mexican cartels still supplying illegal drugs despite massive numbers of deaths and arrests
• Calderon and the drug cartels: Who's intimidating who?
• Mexican drug gangs hiring teenage assassins in Texas
• Teen hitmen do Gulf Cartel dirty work on US side of the border
• Bazookas, grenades, corrupt police and the worsening border crisis
• What do we know about US-side cartel infrastructure?

Mental health court primer

Just as a newly reconstituted Harris County judiciary approved a new felony mental health court, the Council on State Government's Justice Center has produced a series of public policy primers on creating and operating mental health courts, which are an increasingly common approach in Texas toward a difficult-to-manage population of defendants:

Mental Health Courts: A Primer for Policymakers and Practitioners
Provides a general overview of this program model and discusses the emergence of mental health courts, their objectives and procedures, how they differ from drug courts, and a number of other key issues.

Guide to the Role of Crime Victims in Mental Health Courts
This guide describes how the rights due victims in criminal court proceedings are not always made available to individuals who are victimized by people accepted into mental health courts, largely due to confusion about how to involve victims at various points in the mental health court process without compromising adherence to medical privacy regulations. The guide includes examples of how some mental health and other specialty courts have successfully addressed these challenges.

The Essential Elements of a Mental Health Court
As the commonalities among mental health courts begin to emerge, practitioners, policymakers, researchers, and others have become interested in developing consensus not only on what a mental health court is, but on what a mental health court should be. This document articulates this consensus in the form of ten essential elements.

A Guide to Mental Health Court Design and Implementation
Addresses issues such as identifying stakeholders to plan and administer court, screening defendants to participate in the court, and sustaining a court's operation and enables new and existing courts to benefit from some of the lessons learned from the BJA grantee courts and some of the many other courts that have sprouted across the country in recent years.

A Guide to Collecting Mental Health Court Outcome Data
Provides practical strategies for deciding which data to collect, for obtaining, evaluating, and comparing the data. Identifies challenges that typically discourage courts from collecting and analyzing data and explains how to clear these hurdles. Positions courts to demonstrate the value of their initiatives and to improve the broader understanding of the effectiveness of mental health courts.

Navigating the Mental Health Maze
Intended for criminal justice practitioners who know little about mental illness or the mental health system, but now must take a "crash course" because they are part of an initiative that serves people with mental illness involved in the justice system. Offers a basic overview of mental illnesses, including symptoms, diagnoses, and treatment and discusses the coordination of treatment provided by community-based systems of care and court-based services.

Opportunities arise when tight budgets run up against campaign promises

New Harris County Democratic Sheriff Adrian Garcia is looking for ways to make good on his promise to boost the number of deputies on patrol while safely running an already understaffed jail during an economic downturn. The Houston Chronicle reports ("Sheriff is facing complex recruiting, staffing issues," Jan. 7) that while "his first priority will be filling about 60 vacant positions in the patrol division," Garcia:

said he would like to move some or all of the 425 deputies assigned to the jail to patrol jobs, but they would have to be replaced by civilian jailers.

The Sheriff's Department historically has struggled to find people willing to take that job, though nearly all of the approximately 630 civilian positions in the jail currently are filled.

Commissioner Steve Radack said the economic slump may help the county lure new recruits without spending more money on salaries or benefits.

"There's some tough times ahead, so let's not just say, 'OK, we're increasing pay here; we're increasing pay there,' " Radack said.

Finally,

Garcia said he also is evaluating the impact of the department's contract deputy program, which allows civic associations, school districts and municipal utility districts to pay the county to assign deputies to specific areas or neighborhoods.

Supporters of the program say it has helped the sheriff's department put more deputies on the street. But opponents say it allows more well-off neighborhoods to buy deluxe protection.

A Houston Chronicle investigation last summer found contract positions were being filled immediately while dozens of regular patrol jobs sat vacant.

With the economy tanking and the Harris commissioners court dominated by Republicans who backed his predecessor, Sheriff Garcia can't count on new money from the county to fulfill his campaign promises. Instead, he must use existing resources more wisely.

Grits has recently suggested other ways to boost patrol coverage, including allowing deputies to utilize new discretion given them by the 80th Texas Legislature to give citations instead of making an arrest on certain low-level, nonviolent misdemeanors. That can happen a lot more quickly than Garcia is likely to get new money for more patrols or civilian jailers.

With money tight, for the moment law enforcement needs to focus on stretching existing resources further, if only as an argument against making significant cuts.

A Suggestion for Reducing Life Threatening Risks to Officers

Over the holidays came the good news that the number of police officer deaths in the line of duty declined last year, both in Texas and nationally (though Texas still led all states with 14 deaths). So I was interested to see the Senate Criminal Justice Committee Report's Fifth Interim Charge articulate the problem in more detail. See the report (large pdf)

Nationally, 68% of officers killed on the job die in car accidents; in Texas that number is 65% (15 of 23 officers killed between 2005-2007). Another 2 Texas officers (8.6%) during that period were struck by a vehicle while outside their vehicles, two officers died in drowning deaths, and three accidental deaths occurred while training.

These numbers are fairly consistent with national data, the committee found. The part of policing that causes the most on-the-job deaths are high-speed chases and driving to and from each incident - particularly with lights and sirens running when officers can disregard traffic laws, depending on their local policy, and are much more likely to get in a fatal accident.

So perhaps it was that context stirring in my brain that helps explain why I took a decidedly different view than my friend BigJolly at the Lone Star Times of the actions of a woman described by WFAA-TV("Dallas woman fined for misusing panic button," Jan. 6) who's complaining about a $100 fine for using her "panic button" to bring police to her house with lights and sirens running for no good reason just once too often:

Jill Frederick lives alone. She's been burglarized twice. So when a stranger banged on her door at 11 p.m., she hit the panic button on her alarm.

"I thought if I wait one more second, then this guy is coming in. I just did the thing I thought would make them respond fastest," she said.

The panic button triggered what police call a "code 3 call." Officers use their lights and sirens. They got there in six minutes. The man was still there and was drunk so they arrested him.

"To me, that's what a panic button is for," said Frederick.

But a few weeks later, Frederick got a $100 fine for a false alarm.

Jill Frederick said she would do the same thing next time.

Police told her there wasn't really an offense, since the man didn't actually try to break in.

"I think that's not right and I don't think anyone should have to pay a $100 to have the police come out and arrest somebody," said Frederick.

Dallas police say there's a city ordinance that allows them to fine people who use their panic buttons in non-emergency situations.

"We encourage people to use their panic alarm where there really is an emergency when there is an offense going down when someone is kicking in, coming in or trying to get into the house," said Lt. Chris Aulbaugh from Dallas police.

This fine probably isn't coming from out of the blue for Ms. Fredereick; more likely, she's been crying "wolf" before this episode. The Dallas News Crime Blog reported last year that "Currently, a location can have three false alarms during a 12-month-period before the city can impose a fine."

So Ms. Frederick has hit her "panic button" at least three times in the last year if she's starting to receive fines. Each time police officers came with lights and sirens running, putting themselves in the statistically riskiest situation they face on the job, all because the woman is afraid to answer her door. The city should fine her. In fact, they should be reimbursed for the last three incidents, too.

Dallas PD tried to implement "verified response" for commercial alarms awhile back, and while it was operating it reduced this problem dramatically, the Dallas News reported in 2007:

"It's about the utilization of a scarce resource," District 5 council member Vonciel Jones Hill said. "Verified response has worked the way it was intended to work. It does not make sense to continue to send a scarce resource to false alarms when we have higher priorities."

District 14 council member Angela Hunt said: "Our police chief helped us use our scarce resources ... to their highest and best use. Why are we taking them off the street? Why are we taking them out of our neighborhoods to cater to false alarms? We should listen to [Chief Kunkle's] guidance and not be swayed by politics."

Between February 2006 and March 2007, Dallas experienced a 45 percent reduction in burglar alarm calls and redirected $1.56 million in manpower costs previously spent on responding to false alarms to other work, according to the city staff's briefing to the council. It also noted that fees charged for false alarms decreased by $1.19 million.

Business burglaries declined by 0.6 percent during a one-year period that ended Feb. 28, according to the presentation to the council.

Ending alarm company subsidies entirely and requiring verified response for all home alarms would be the best public policy approach, but I doubt there's a chance in the world the Lege would ever do it. As evidenced by Dallas' experiment with commercial alarms, verified response puts more officers on the street and reduces fines for false alarms, but it also forces the alarm company to pay the full freight for the service they provide. Right now it's a heavily subsidized business model.

The Senate Committee's interim charge on officer deaths was particularly light on specific recommendations, but perhaps this Dallas case study offers an example of how they could reduce risks to officers by reducing the number of times officers are needlessly placed in harm's way. Either the state should embrace the City of Dallas' proposal to authorize cities to fine on the first false alarm, or else disallow commercial "panic button" services at residences from bringing "lights and sirens" responses.

Either of those reforms would reduce the number of times officers put themselves and the public at risk by speeding and violating traffic rules, and would also reduce the subsidy non-alarm company clients pay in taxes to cater to people who call the police instead of answering the door when somebody knocks.

RELATED: A commenter brings sad news that "The first Texas peace officer officer death [of 2009] occurred Tuesday in Dallas. DPD Sr. Corporal Norman Smith and other officers were attempting to serve a felony warrant when he was shot." See the Dallas News coverage. My heartfelt condolences go out to Cpl. Smith's family, friends and colleagues.

Tight budgets and corrections priorities

Federal budget numbers are always flabbergasting to me and I can only react with awe to the news that the 2009 federal deficit totaled $1.2 TRILLION, with a big, fat, capital "T."

Most state budgets including Texas, OTOH, must balance themselves or else request specific debt approval from voters in bond elections, so state budgets by far are hit harder when tax revenues level off or decline in tough times. The Houston Chronicle's April Castro had a good piece yesterday what Texas' state budget picture might look like ("Lawmakers await comptrollers revenue announcement," Jan.6), predicting a modest $2 billion surplus over the last biennium:

Texas will likely have to pay up to $2 billion for its share of costs from Hurricane Ike, rapid growth in Medicaid costs and enrollment, lower oil prices that might mean less income in the state's Rainy Day Fund, slowed consumer spending and lower-than-projected revenues from the state's new business tax in the fund intended to pay for public schools.

The Ike and Medicaid enrollment growth could cost together as much as $3.2 billion in the 2008-2009 budget before lawmakers even get started on the 2010-2011 budget, Lt. Gov. David Dewhurst and current House Speaker Tom Craddick have estimated.

The so-called surplus is made up of three parts:

_ $5.7 billion in the Rainy Day Fund from taxes that companies pay for producing oil and gas. That fund can only be tapped with the approval of a super-majority of the Legislature.

_ $3 billion set aside two years ago to give to schools to make up for property tax cuts.

_ $2 billion left over for lawmakers' discretionary spending.

Further exacerbating budget uncertainties, health care costs are rapidly rising and enrollment in entitlement programs is expected to grow with the economic slowdown.

Even with $3 billion stashed away for schools, a fund used to replace some school property tax money will fall at least $5 billion short of the $14 billion hole lawmakers created two years ago when they lowered school property tax rates by a third. That's mostly because revenues from the new business tax — revamped to replace some school property taxes in education funding — aren't as much as expected.

This year, it appears that money will be available without having to cut from other state spending. But it will take a bite out the state's economic growth that would have otherwise padded the surplus.

That's better than most states who're in the red, but a lot less to work with than had been suggested in previous official estimates. If these data are accurate they'll pit other areas of government against the criminal justice system, which faces some big ticket items on its plate, some of which are necessary to prevent even greater costs:

Increased pay for prison guards: Approximately $460 million to raise pay at TDCJ by 20%. The agency is currently around 3,000 guards short with high turnover rates and major problems at some units with guards making extra money on the side smuggling contraband. TDCJ shut down wings at two units (in Dalhart and Fort Stockton) last year in response to critical understaffing. For all exceptional items including the proposed pay hikes, TDCJ's legislative appropriations request (pdf) projects more than $1 billion in increased costs for the biennium just to keep inmate numbers at current levels.

Outpatient competency restoration: The Department of State Health Services last year funded five pilot programs aimed at providing outpatient competency restoration using "emergency" money given it by the Legislature in 2007. These pilots have been highly successful in reducing needless, costly state hospital commitments which often took up beds needed by regular, non-offender taxpayers with mental health needs.

While the Department of State Health Services' LAR (see page 53 of the pdf) contemplates keeping funding near current levels for these programs (actually cutting it slightly now that initial startup costs are complete), truly it's penny wise and pound foolish if these pilots aren't fully funded and expanded to every urban center. Such a move which would reduce pressure to build even more expensive state hospital beds - a likely outcome of pending litigation before DSHS rolled out this new initiative - and relieve pressure on county jails who must house the inmates until a state hospital bed comes open. This really is a pay me now or pay (more) later kind of deal.

Expanding Governor Perry's Border Initiative: At Gov. Perry's insistence, in 2007 the Legislature spent $140 million over the biennium on "border security" in the 16 Texas counties along the Rio Grande - mostly for overtime and equipment at those 16 county sheriff's departments. This year he wants to continue that funding and expand the grants to include grants to urban areas, an idea that seems to me similar to Bill Clinton's federal COPS program.

Paying for TYC Improvements: While the Sunset Advisory Commission suggested it might be possible to save money by merging the Texas Youth Commission and the Juvenile Probation Commission, there are many problems at both agencies that can only be addressed by expanding services - particularly special ed and mental health services, along with moving to smaller, rehab-oriented facilities and improving reentry programming.

In addition, if counties must pay private vendors to house commitments TYC previously took, the cost of those grants - including adequate state oversight - will not be significantly less than if a state agency does the job. Breaking even would be getting off cheap at TYC. In fact, given the agency's current, barely out of crisis status, reducing spending risks underinvesting in critical educational and anti-recidivism components that, from a public safety perspective, deserve more attention in Appropriations, not less.

Will UTMB move their prison hospital in the wake of Hurricane Ike? If so the state must pay to reconstruct a new facility elsewhere while suffering serious medium-term dislocations in what was already a poorly functioning care-delivery system. Relatedly, no word on how the hurricane and massive layoffs affected UTMB's telemedicine program, which provides much inmate of the specialty and psychiatric care both at TYC and TDCJ. How much new investment will be required to get everything back up to speed?

Funding "Innocence" Work: The Fort Worth Star Telegram said on Sunday that post-conviction work Texas law shool innocence clinics should receive a modest budget boost to help finish vetting outstanding DNA claims - in part to offset the effects of the Madoff scandal on my employers at the Innocence Project of Texas. The Startlegram emphasized out that boosting funding for innocence work by $1 million would cost just more than 1/500 of the proposed pay hike for guards.

These costs overall seem ominously high if the numbers reported by the Chronicle are accurate. That's perhaps $1.5 billion or more in "exceptional" criminal justice related budget items on the table right off the bat, when predictions call for perhaps $2 billion in total discretionary spending across the entire state budget- a figure which could be swallowed up in a heartbeat by a $5 billion hole in school finance.

More on this when we get official numbers from the Comptroller next week.

RELATED: From Talk Left, "Will the Recession Mean More Traffic Tickets?"

Stealing pets a felony? Must we?

Valley Democrat Eddie Lucio filed HB 435 which proposes making it a state jail felony to steal a "pet."

Must we, really? Is this a big problem? Has there been a rash of pet-nappings and I wasn't informed?

I can think of two incidents in my adult personal life involving allegations of "stolen pets." Both were essentially pet custody disputes, which makes me think such a law could be easily mis-applied. Pinning a felony tag on somebody - even the lowest level felony - places a scarlet letter on the offender's back potentially for life. We ought to be more cautious about putting more and more petty crimes in that category.

RELATED: From Jamie Spencer, we learn why, in Texas, one pet = nine cows = ninety nine goats. Robert Guest offers a quote from Einstein he hopes will inspire the Lege to oppose overcriminalization.

AND MORE: In the comments, the Houston attorney blogging as Rage Judicata suggests that "this one is easy. This bill was sponsored by the State Rep. for Jim Wells County, which includes Alice, Texas, where the mayor was asked to keep a friend's dog while they were out of town, which she did, but told them the dog died and never gave it back." That certainly did happen: See this account. Pretty darn funny stuff. Still a bad idea.

RAGE WAS RIGHT: Capitol Annex reported on this bill in December and confirmed that the story about the Alice Mayor is the source of the legislation.

Suggestive ID practices hard to exclude in court

Houston criminal defense lawyer and blogger John T. Floyd has an excellent piece up on DNA exonerations and eyewitness identification in which he lays out in detail the almost impossible burden of proof required in Texas to exclude eyewitness identifications based on suggestive photo lineups.

DOJ: Austin PD should improve use-of-force oversight

While Austin police chief Art Acevedo has been downplaying a new report on APD use of force by the US Department of Justice, the 50 page document (pdf) identifies many shortcomings in both the department's use of force policies and its systems for supervisory review. Reports the Austin Statesman ("Chief forming team to put suggestions in place," Jan. 6):

The Justice Department report praises Acevedo, who became chief in 2007, for the changes he has brought to the department, which at times were met with resistance among the rank-and-file.

For instance, Acevedo in May revised the department's use-of-force policy to begin requiring officers to document more actions, including when they point their weapons at suspects, and making front-line supervisors do a more immediate, thorough investigation in nearly all cases when force is used.

"We have been looking at all of these issues," Acevedo said. "As a team, we came in and made a lot of changes. We made these changes because we recognized the need for process improvement. We did not wait for the Department of Justice to tell us what to do."

However, the Justice Department recommendations make more suggestions and point out gaps in some of Acevedo's policies. For instance, federal officials said they noticed "a general lack of consistency" among supervisors on use-of-force reporting and review.

"We were also informed that some of these supervisors (who are to review use of force reports) are not themselves trained in up-to-date, uniform tactics or use of force," the report said. "If these line-level and mid-level supervisors are not trained in use of force themselves, then they are not equipped to assess or counsel on their subordinates' use of force."

The report also gave suggestions to improve the department's internal affairs division, which investigates some use-of-force incidents.

According to the report, the department should develop selection criteria for officers who want to be in the division, including an evaluation of their performance. The document also suggested that the department develop formal policies for how internal affairs investigators interview subjects, for instance.

I'm glad to see the chief say he intends to implement all of DOJ's recommendations, but doing so leaves APD facing a significant, short-term revamp of its policies and training. Let's run through a few highlights:

On use of force policies, in particular, DOJ said, "several of the APD's policies and procedures are inconsistent with generally accepted police practices and are insufficiently detailed to provide appropriate guidance for officer conduct." What's more, department rules "omit any mention of the necessity for use of force" and fail to base definitions of "reasonableness" of use of force on Supreme Court precedents.

Some techniques like chokeholds are typically considered "deadly force" in other departments, according to DOJ, but APD's policies allow the tactic in a broader array of circumstances that the Justice Department said should be restricted to situations when deadly force is justified.

DOJ called APD's reporting form that officers fill out after use of force incidents "inadequate" and said there's a "general lack of consistency" among supervisors regarding use of force review.

The Justice Department report also criticized the department's policy of allowing officers to carry "secondary weapons" without informing their supervisors, and recommended forbidding the practice without documented approval.

The report chided APD for failing to create "specific guidance and restrictions on all intermediate force weapos used, including straight and expandable batons, PR24s, Orcutt Nunchakus, chemical weapons, CEDs ["conductive energy devices," i.e., Tasers], impact munitions, and canines." Indeed, "We received ... a number of allegations that APD officers had used [Tasers] on subjects who were already restrained. Even more troubling, neither the APD's revised duty weapons policy, nor the revised Response to Resistance policy contains such a prohibition on use of [Tasers] against a restrained suspect."

What's more, APD policy specifically allows use of pepper spray against restrained suspects who continue to be "aggressive," but DOJ said the definition of "aggressive" is vague and undefined. They recommended banning this practice and suggested a variety of restraint methods used in other departments that could substitute for macing restrained suspects. The report also faults APD for failing to weigh chemical spray cannisters to monitor their use.

DOJ says many examples of APD use of force go undocumented. For example, "an arm bar takedown [is] not use of force under the policy ... unless there was a complaint of recurrent pain or injury. An average citizen would not know that he or she must consistently or repetitively report pain in order for a use of force against them to be documented."

DOJ also said APD isn't following its own policy of requiring every employee to accept citizen complaints on use of force and other misconduct allegations, and alarmingly reported that "911 operators, on many occasions may have discouraged complainants from filing complaints, faild to contact supervisors regarding complaints, and failed to document the calls and complaints." That's pretty brazen, huh?

The report criticized APD for playing around with complaint classifications to create "'escape valves' that can minimize officers' misconduct."

Finally, DOJ offered a suggestion I've been calling for at APD since at least the mid-90s: The creation of a functioning "Early Warning System" (EWS) to pro-actively identify misconduct problems. Said DOJ, "APD command staff should examine and review officer conduct on a regular basis as a proactive measure to minimize and detect misconduct and to identify training and policy issues." An existing EWS system was seldom used, "did not serve as an effective risk management tool," and was "ineffective" at "predictive modeling."

DOJ emphasized that its report contained recommendations, not mandates, but Chief Acevedo was wrong to portray that distinction as particularly meaningful. After all, this is a public policy report not the result of litigation, so the lack of the mandate would be expected.

What wasn't expected was that DOJ's report would essentially confirm what activists in this city have been saying for years: Citizen complaints about use of force are too often ignored and officers who abuse their positions have been too often tolerated.

Chief Acevedo deserves credit for focusing on supervision and misconduct much more than his predecessor, and for embracing the recommendations in this report. If he follows through on his pledge to implement all its recommendations, Austinites will be better off for it.

Peace treaty among Mexican cartels?

Two articles by Albert Corchada published yesterday in the Dallas News provide contradictory predictions regarding drug violence in Mexico in 2009:

• Mexican drug cartels negotiating a peace agreement
• Mexico's drug violence expected to intensify in '09

The news of a possible peace treaty between warring drug cartels is particularly welcome because I seriously doubt whether either the Mexican or US governments can stop the violence on their own.

Justice-related interim committee reports begin to arrive

Two interim committee reports are out related to topics covered on this blog (warning - large pdf files):

• Senate Criminal Justice Committee Interim Report
• Senate Transportation and Homeland Security Committee Interim Report

I've not had a chance yet to read these documents - I'll be examining bits and pieces of both on Grits over the next couple of weeks - but they should give us a sense of what topics these committees will focus on during the 81st session and the legislative solutions committee members are currently inclined to embrace.

Breaking News: Craddick is out

It looks like Tom Craddick has stepped down and San Antonio's Joe Straus will be the next Speaker of the Texas House. Straus today released a list of 85 House members supporting his candidacy.

No telling what this will mean in terms of committee chairmanships, Calendars and Appropriations Committee membership, and other key leadership positions, but one thing's for sure: Change is afoot.

Alonzo bill would let judges pare sex offender rolls

Reacting to concerns that the sex offender registry includes too many low-level offenders and may increase recidivism, a Dallas state rep wants to give judges discretion to shorten sex offender registration periods for certain first-time offenders.

Declaring "Some offenses don't rise to the level" of needing registration, Rep. Roberto Alonzo, D-Dallas, has filed HB 190, reports the Houston Chronicle's Texas Politics blog, which:

would give certain first-time sex offenders the ability to petition the courts to shorter their registration periods, or to have their registration completely waived . The vast majority of sex offenders in Texas must register on the state's Department of Public Safety website for life.

Alonzo "filed his bill at the request of a Dallas judge who was fed up with low-risk offenders brought in on technical violations tying up the court's docket," said the Texas Politics blog, which quoted the new group Texas Voices praising the legislation. Via Kuff.

RELATED: From Doc Berman:

For anyone trying to keep track of what's going on state-by-state, the Vera Institute of Justice recently published these two essential documents for policy-makers: The Pursuit of Safety: Sex Offender Policy in the United States (available here) and Treatment and Reentry Practices for Sex Offenders: An Overview of States (available here). In addition, academics should remember that the latest issue of the Ohio State Journal of Criminal Law includes a symposium on sex offender law and policy.

Montague jail flooded with contraband, closed after FBI raid

Yikes! And we thought there was a contraband problem on Texas' death row!

AP reports that in Montague County, the brand spanking new Sheriff's first official act was to move out all the inmates and close down the county jail in the wake of an FBI raid and apparent, rampant misconduct under his predecessor:

A jail in northern Texas has been closed and its nearly 60 inmates transferred as authorities investigate what they call dangerous conditions for jailers and those behind bars — including cells that locked from the inside or contained recliners. Five inmates had already been moved from the Montague County jail to one in a nearby county this month after an FBI raid, said Jack McGaughey, district attorney for Montague, Clay and Archer counties.

McGaughey declined to say what prompted the investigation, also being conducted by the Texas Rangers. But he said authorities found contraband in the jail. New Sheriff Paul Cunningham moved the inmates to the Wise County jail on Thursday a few hours after he was sworn in.

McGaughey said some surveillance cameras' cords had been disconnected; recliners were in cells; some bathrooms and cells could be locked from the inside; and inmates had made partitions out of paper towels to block jailers' views inside their cells. One alarming discovery was a type of rack made of nails, he said. ...

Some inmates had apparently used extension cords to lock deputies out, and unidentified pills were strewn about other jail cells, Dallas-Fort Worth television station WFAA reported.

Recliners?! Surely that requires ongoing complicity by virtually everybody at the jail - from the folks checking the entrances to all the guards and supervisors. That's not an item like a cell phone that's getting hidden when the guards walk by.

One wonders how long this has been going on and why the Texas Commission on Jail Standards inspectors didn't catch it.

One also wonders precisely what inmates were doing, and for whom, in return for these kinds of extras? Clearly, the FBI is wondering the same thing.

MORE: From the Bowie News.

Poll: Tough on crime messages don't resonate with critical swing voters

Last month Hill Research Consultants, a GOP polling firm based in the Woodlands, issued a public poll aimed at demonstrating to decisionmakers and the Republican base the need for the GOP in Texas to change tactics or risk a near-term toppling by Democrats in statewide elections within just a few cycles. (See the report.)

Without going into the details, which are well worth a read, to judge by these data, the GOP in Texas faces a tough row to hoe rebuilding its post-Bush image. The number that stunned me, in particular, was the answer to the question of which party "cares about the concerns and problems of people like me." Nineteen percent said Republicans while a whopping 50% - of Texans - answered Democrats. As HRC said, "Long term, this is simply untenable."

David Benizon at the Lone Star Times has already admirably adumbrated the poll's main details, but I wanted to point readers to a couple of tidbits related to criminal justice policy:

HRC segmented the electorate into groups based on their relative commitment to the major parties and discovered surprising trends. Among "enduring GOP" voters, 38% considered themselves "law and order conservatives," while just 17% of "emerging conservatives" thought thusly. That's a big dropoff in intensity. I take from this that those not already firmly ensconced in the GOP base aren't as attached to tuff on crime messages as their more hard-core brethren among "enduring" Republicans. Crime was not mentioned as a significant concern of "critical middle" voters.

Asked which party was "committed to fair and impartial justice for all," the GOP trailed Democrats 42-32 among all voters.

Asked to list their "top of the mind," biggest issues, just 2% of the electorate offered answers related to "crime, drugs, gangs and prisons," compared to 10% who answered healthcare and 29% who answered the economy. Illegal immigration also came in at 10%, with 6 of the top 9 self-offered issues related to pocketbook economic concerns.

Speaking of which, said HRC, "Like it or not, [critical middle] voters don’t care about illegal immigration or traditional values with the same intensity as our [GOP] base." HRC estimates the GOP must win 80% of so-called critical middle and all the "emerging GOP" voters to retain control of the state in the medium term.

Many have wondered why crime did not become an issue in the 2008 presidential elections, and perhaps the answer is that crime has become a much less dominant issue among voters - especially centrist swing voters - than has been the case for the last couple of decades. Even in Texas.

No Christmas truce in Mexican cartel wars

For those keeping track of the Mexican cartel wars, the new year brings with it several must-read items:

• Fort Wort Weekly: Border Under Seige

• Drug War Chronicle: Top Ten 2008 drug policy stories (see the final three items on Latin American cartel wars)

• The Narcosphere: Mexico's Drug Death Toll: 8,463 and counting

• The New Criminologist: Are Mexican drug cartels the #1 organized crime threat in America?

• Time: Confessions of a Mexican narco-foot soldier

RELATED: See also the Austin Chronicle's Top Ten marijuana-related stories.

What happens with prison healthcare if UTMB fails to rebuild?

According to an article titled "Emergency!" by Mimi Swartz at Texas Monthly, the University of Texas System may decide not to rebuild the UT Medical Branch at Galveston after Hurricane Ike, facilities which include the hospital responsible for most of the state prison system and "telemedicine" infrastructure that serves 80% of Texas prisoners.

Cheering state Sen. Steve Ogden's efforts to insist UTMB be rebuilt, Swartz predicts that:

unless Ogden prevails, UTMB will face inevitable death. Ogden is keenly aware that as an Aggie challenging the most powerful teasips, he’s vulnerable to criticism that he has it in for A&M’s longtime rival. Even so, he’s persisted. He understands that the proposed reduction in the number of hospital beds means a reduction in the number of patients needed to support a viable medical school; in order to become the best doctors, students need patients with a variety of illnesses and injuries. Victims of local emergencies, from car accidents to refinery explosions, would no longer have a Level I trauma center at their disposal; they’d have to depend on an ambulance or a helicopter to get them to Houston. Certainly Galveston’s residents would suffer financially and medically with a reduced UTMB, but so too would all the overcrowded public hospitals in Texas that would then have to take in more uninsured patients, or simply turn them away without treatment. “The longer the hospital stays out of commission the more people forget,” one longtime Island resident told me.

Maybe that’s just what the regents are hoping for.

To be fair, Swartz's article and Sen. Ogden understate the enormous problems with investing so much in infrastructure on a hurricane-prone barrier island. It's possible that's just an untenable idea that must be fundamentally reconsidered. But if UTMB isn't going to rebuild its medical infrastructure in Galveston, that leaves as an open question what happens to prison health care UTMB was previously providing through that facility.

Houston accidents increased after installing red light cameras

There are two kinds of stories routinely published by the MSM around the New Year that both annoy me: Fluffy pieces written weeks earlier for publication while the reporter is gone, and stories that officialdom wants buried and thus releases around the slowest newsday of the year.

An excellent example of the latter may be found in a Houston Chronicle story published yesterday revealing that traffic accidents in Houston increased after the installation of red light cameras ("Was red light camera study flawed?," Jan 1).

While not long ago, the Chronicle touted the results of a much less rigorous study uncritically, in this case, where the results do not support red light cameras, the whole story was centered around claiming the research methodology was flawed. Writes Bradley Olson:

Because red-light cameras are known to have a spillover effect — meaning that they have been shown to impact the number of accidents at intersections where there are no cameras — robust examinations of camera programs always compare crash data with that in other cities.

It's what statisticians call a control group. Unless the study authors compare crashes at the 50 intersections where red-light cameras have been installed with other intersections in which they have not been — preferably in other cities — no conclusions can be drawn from it.

This is utter gobbledy gook, not a legitimate statistical analysis! Red light cameras create their OWN control group when researchers monitor accidents at the intersection BEFORE and AFTER enforcement begins.

That was the flaw I identified in the Texas Department of Transportation study published in December - in the vast majority of intersections they studied, data was not gathered before cameras were installed to compare them. In the Houston study, they had that data going back several years, so IMO the results are actually much more robust and probative than TXDOT's.

Olson writes that, "One specialist from a renowned traffic research organization who reviewed the study for the Houston Chronicle said the methodology was "flawed" and has serious "limitations." But it turns out the "renowned" research group was the Insurance Institute for Highway Safety, which is an arm of the insurance industry, not a neutral source of research.

The reporter also claims, bizarrely, that, "At a ratio of 10 to 1, study after study on the effect of red-light cameras ... have found that they drastically reduce crashes." That's simply false on its face, which further leads me to think Olson's sources were feeding him a line of bull. As I wrote in reaction to the TXDOT study:

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.

The Houston figures jibe closely with those results, so I don't see why Olson or Mayor White are so surprised that accidents increased in Houston, too. That's what happens when officials prioritize revenue generation over public safety.

Here are the bottom line results:


See more from BlogHouston and Off the Kuff.

New Year Open Thread

So long, 2008: At a minimum you gave us no shortage of blogging material and for that I am grateful.

I'm going to take another day off and climb back into the blogging saddle tomorrow. Until then, use this as an open thread to discuss the most important criminal justice topics of the past year. Here's my ad hoc stab at a top ten list of the year's most important criminal justice stories:

1. Historic malfeasance: The Charles Dean Hood case exposed a judge-DA tryst from a 1991 capital murder trial. The judge, Verla Sue Holland, was later appointed by Gov. Bush to the Texas Court of Criminal Appeals.
   
2. The cartel wars in Juarez (El Paso's sister city) claimed more than 1,500 victims while corruption increased on the US side and a Texas Sheriff who received millions in drug-war grants was discovered on a cartel's payroll.
   
3. The Great Eldorado Polygamist Roundup
4. TYC Turmoil: Conservators come and go, then finally a new commissioner
   
5. Harris County DA Chuck Rosenthal's unlikely fall from grace
6. Commissary corruption among Sheriffs
7. Prison staff shortages force closure of wings on two units and contribute to contraband smuggling, including more than 20 different cell phones found on death row
8. Hurricane Ike destroyed Galveston including the state's main prison hospital which has not been re-opened. UTMB, which ran the hospital, laid off thousands of employees.
9. DNA-based exonerations continue in Dallas and elsewhere, though the Innocence Project of Texas which provided attorneys in many of these cases was hit hard in the pocketbook by Wall Street fraud.
10. Big cities going D: Harris County judicial races flip Democratic following a similar shift in Dallas County in 2006, which solidified this year with Sheriff Lupe Valdez's re-election.

The order here is decidedly arbitrary, but those, I think are certainly among the biggest Texas criminal justice stories from 2008. Let me know what you think is missing from the list.

Also, what will be the big issues in 2009? A couple of big ones at the Legislature will surely be:

• The Sunset Commission's proposal to merge TYC and the Juvenile Probation Commission
• Prison security: Contraband smuggling, staffing shortages and guard pay.

Perhaps readers can suggest other important issues and trends to watch.

I'm spending the rest of the day with family and friends, so y'all talk among yourselves, thanks for stopping by, and have a happy and fulfilling New Year.

RELATED: See the Austin Chronicle's top ten public safety stories.