The hearing on all the innocence-related legislation today in the Texas Senate Criminal Justice Committee, I thought, was a rousing success (at least from the standpoint of the Innocence Project of Texas Policy Director) with scarce little opposition to most of the reform legislation proposed.
Only the Houston police union opposed the eyewitness ID legislation (the first bill up if you're watching the video), but prosecutors and lots of other groups supported the compromise and the bill passed out of committee unanimously. (The Dallas DA's office actually suggested the bill was too weak!) Also passing with no opposition was Sen. Juan "Chuy" Hinojosa's bill requiring corroboration for jailhouse informants.
Chairman Whitmire's SB 1976 improving access to courts for post-conviction actual-innocence writs based on new scientific evidence was equally well received. (See an Innocence Project of Texas fact sheet on the subject.) The bill would make other types of new scientific evidence proving innocence on par with DNA evidence for purposes of post-conviction actual-innocence writs.
In support of the legislation, exoneree Brandon Moon delivered emotionally charged, tearful testimony about a man he met in prison who he now believes might be the innocent victim of since-debunked arson science. This was an interesting discussion, I thought, and Brandon's testimony was amazing - see the bill layed out at the 2:10:30 mark of the video. Well worth watching; Brandon was the second speaker, and I'm glad it was Mike Ware of the Dallas County DA's District Attorney's office and not me who had to follow him. Ware also spoke in favor of the bill - a significant thing since as head of Dallas' Conviction Integrity Unit he probably knows more about post-conviction innocence writs than any proseucutor in the state. The Harris DA's office opposed it but expressed support for the overall goal. I testified too, as did a couple of other Innocence Project folks.
There were lots of other good bills up today in the Criminal Justice Committee and some excellent testimony, particularly regarding reentry issues facing exonerees (see an IPOT fact sheet summarizing many of the bills).
See also AP's coverage of a press conference (see video) earlier in the day promoting the legislation.
That's how I spent my Tuesday! :) It was a pretty good day. Hasta mañana.
MORE: See related coverage from AP, the Lufkin Daily News, Fox34 Lubbock, DFW/NBC News, and KVUE Austin.
Tuesday, March 31, 2009
Compensating the falsely convicted
Coming on the heels of news that Governor Rick Perry will meet with the family of Timothy Cole (the falsely convicted inmate who was posthumously exonerated in February in an Austin court), there are a slew of innocence-related bills up today and tomorrow in both the Texas Senate and the House. I've mentioned the ones up this afternoon in the Senate, but there's good AP coverage in the papers about the exoneree compensation bill that will be heard tomorrow in the House Criminal Jurisprudence Committee:
State Rep. Rafael Anchia, D-Dallas, filed a bill to increase lump sum compensation from $50,000 to $80,000 for each year of incarceration. The bill also would require the state to pay some of the compensation in annuities, assuring exonerees a lifetime income. The payments would be retroactive to exonerees who already received lump sum payments, including Fountain, and would cease if there was a subsequent felony conviction.
"I don't imagine any of us locked up more than 20 years have a lot of experience managing personal finances," said Charles Chatman, who was exonerated in January 2008 after nearly 27 years.
The bill also would provide exonerees the same health insurance given to state employees, a crucial benefit for those who often emerge from prison with severe health problems but no way to get medical coverage.
Smith's lawyers attempted to sign him up for Social Security disability, which would have made him eligible for Medicare coverage. But the government rejected Smith's application, saying he hadn't paid enough into the system to qualify for benefits.
The article also focuses on problems with exonerees' reentry to society upon leaving prison that are the focus of bills by Senators Hegar and West in this afternoon's Senate Criminal Justice Committee hearing - the lack of social services for exonerees upon release:
Exoneration hearings have become common events in Dallas courtrooms in recent years. They've also highlighted the lack of social services available to the wrongly convicted.
Such services are commonplace for convicts paroled out of prison. Parolees receive $50 and a bus ticket to anywhere in Texas upon release, and another $50 when they meet up with their parole officers, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.
There are re-entry centers in major cities that offer employment help, counseling and substance abuse treatment, and there are halfway houses for parolees who need additional supervision.
"We're not releasing people so they can be homeless," Clark said. "That doesn't happen."
But that's what routinely happens to exonerees, who are released suddenly and with no place to go.
"It's really terrible," Smith said. "People who get out on parole have a better chance of getting started on the right foot than a person who has been exonerated."
An ad hoc support system has sprung up in the absence of services from the state. Fellow exonerees have become fixtures at hearings for the newly freed.
See a further discussion of innocence-related bills up today in the Senate Criminal Justice Committee in this fact sheet from the Innocence Project of Texas.
Monday, March 30, 2009
More on innocence bills up in Texas Senate committee tomorrow
Check out a fact sheet from the Innocence Project of Texas in support of a slew of innocence-related bills up tomorrow in the Senate Criminal Justice Committee.
RELATED: From AP, "Bill would improve services for Texas DNA exonerees."
RELATED: From AP, "Bill would improve services for Texas DNA exonerees."
Another part of Obama's stimulus the Governor should oppose?
We've seen tons of media and blog debate about Texas Governor Rick Perry's decision to reject nearly $600 million in unemployment money from the federal stimulus package, arguing it would obligate the state and employers to continue paying for additional benefits after the short-term stimulus money runs out.
But I've heard nary a peep from the Governor, and very little from anyone else, criticizing new law enforcement grants in Obama's stimulus package with essentially the same structure - a resuscitation of Bill Clinton's COPS program - that similarly require local governments to assume long-term obligations in order to receive short-term stimulus money.
The COPS program pays for new law enforcement positions for each of the first three years, but cities or counties accepting the grants must agree to pick up the tab after that. When Bill Clinton proposed this same plan back in the go-go '90s, many cities had booming budgets from escalating real-estate prices and were willing to bet that city revenue would increase enough in three years to cover new obligations.
In that context, the idea of hiring cops on the layaway plan - hire now, pay later - perhaps seemed more palatable than today. Once these officers are on the payroll for four years, it's politically next to impossible to reduce their number, even though federal rules only require employing them for one extra year beyond the grant.
In the current budget environment, I wonder if cities and counties will be as eager to apply for this particular federal handout given the long-term budgetary strings? My bet is that many cities and counties aren't nearly so optimistic as they were in the '90s that they'll be able to pay for those extra employees three years from now. After all, because of the training and support they need, police officers are among the most expensive employees on the municipal payroll.
Texas hasn't felt the impact of plunging real-estate prices as much as places like Florida or California, but especially local governments are not immune from declining revenue streams and may rightfully be wary of taking on significant budgetary obligations during a period when crime is declining overall and locals perceive no immediate crisis.
These thoughts occurred tome after seeing this news clip from El Paso which mentioned that the county commissioners court will be considering whether to hire new Sheriff's deputies on this new federal layaway plan. That brief mention made me realize such debates must be going on everywhere in the state and nation right now, as local governments must balance whether the public-safety benefits of accepting "free" officers in the short term makes sense for the long-term budgetary health of their community.
From the taxpayers' perspective, the same argument Rick Perry is making against accepting extra federal unemployment benefits applies in spades to the COPS program.
Maybe Governor Perry should have rejected that part of the stimulus money, too?
But I've heard nary a peep from the Governor, and very little from anyone else, criticizing new law enforcement grants in Obama's stimulus package with essentially the same structure - a resuscitation of Bill Clinton's COPS program - that similarly require local governments to assume long-term obligations in order to receive short-term stimulus money.
The COPS program pays for new law enforcement positions for each of the first three years, but cities or counties accepting the grants must agree to pick up the tab after that. When Bill Clinton proposed this same plan back in the go-go '90s, many cities had booming budgets from escalating real-estate prices and were willing to bet that city revenue would increase enough in three years to cover new obligations.
In that context, the idea of hiring cops on the layaway plan - hire now, pay later - perhaps seemed more palatable than today. Once these officers are on the payroll for four years, it's politically next to impossible to reduce their number, even though federal rules only require employing them for one extra year beyond the grant.
In the current budget environment, I wonder if cities and counties will be as eager to apply for this particular federal handout given the long-term budgetary strings? My bet is that many cities and counties aren't nearly so optimistic as they were in the '90s that they'll be able to pay for those extra employees three years from now. After all, because of the training and support they need, police officers are among the most expensive employees on the municipal payroll.
Texas hasn't felt the impact of plunging real-estate prices as much as places like Florida or California, but especially local governments are not immune from declining revenue streams and may rightfully be wary of taking on significant budgetary obligations during a period when crime is declining overall and locals perceive no immediate crisis.
These thoughts occurred tome after seeing this news clip from El Paso which mentioned that the county commissioners court will be considering whether to hire new Sheriff's deputies on this new federal layaway plan. That brief mention made me realize such debates must be going on everywhere in the state and nation right now, as local governments must balance whether the public-safety benefits of accepting "free" officers in the short term makes sense for the long-term budgetary health of their community.
From the taxpayers' perspective, the same argument Rick Perry is making against accepting extra federal unemployment benefits applies in spades to the COPS program.
Maybe Governor Perry should have rejected that part of the stimulus money, too?
Keller's poverty pleas draw new scrutiny to high criminal court
Under normal circumstances, the media ignore the Texas Court of Criminal Appeals, which is Texas' highest criminal court. More attention is usually paid to the Texas Supreme Court, which hears only civil cases. But a series of high-profile squabbles with and smackdowns by the US Supreme Court over the death penalty, followed up by official misconduct charges against Presiding Judge Sharon Keller, have focused more scrutiny on the court than perhaps at any time in living memory.
Good for the public, bad for the court. Judge Keller, in particular, appears unprepared for more intense scrutiny, as evidenced by a story by Steve McGonigle in today's Dallas News titled "Judge Keller's disclosures omit nearly $2 million in real estate, public records show."Whoops!
This comes on the heels of Judge Keller's sworn statement last week that her legal bills to defend against judicial misconduct charges would be "financially ruinous." But that assertion, says her lawyer, was based on her publicly disclosed assets, not the ones she concealed from the Ethics Commission:
Good for the public, bad for the court. Judge Keller, in particular, appears unprepared for more intense scrutiny, as evidenced by a story by Steve McGonigle in today's Dallas News titled "Judge Keller's disclosures omit nearly $2 million in real estate, public records show."Whoops!
This comes on the heels of Judge Keller's sworn statement last week that her legal bills to defend against judicial misconduct charges would be "financially ruinous." But that assertion, says her lawyer, was based on her publicly disclosed assets, not the ones she concealed from the Ethics Commission:
[Keller's attorney Chip] Babcock, a partner in one of the largest law firms in Texas, said that the proceeding could cost Keller several hundred thousand dollars and that it could consume most if not all of her income and assets.
He said he based his prediction on the resources Keller listed on her latest personal financial report to the state and had not asked to see any other financial statements from his client, a member of a well-known Dallas family.
Andrew Wheat from Texans for Public Justice, a watchdog group on campaign finance issues, put it well when he told McGonigle: "It leaves one speechless to see so much left out of her personal financial statements on the one hand and then on the other hand to see her making her claims that hiring a private attorney would be financially ruinous."
How much do you wanna bet every other judge on the CCA is busy today checking whether they need to update their own ethics commission filings?
These are folks who are not used to having others question their actions or check the veracity of their public declarations as rigorously as other statewide politicians. For a variety of historical reasons dating back to Reconstruction, the CCA has mostly flown under the radar and avoided public attention. Judge Keller has changed that, maybe for good. Do you think the court is ready?
UPDATE: From Texans for Public Justice:
Texans for Public Justice (TPJ) filed complaints today with prosecutors and the Texas Ethics Commission alleging that Texas Court of Criminal Appeals Presiding Judge Sharon Keller illegally failed to disclose millions of dollars worth of real estate holdings in sworn personal financial disclosure statements. TPJ's complaints follow up on revelations reported Monday by the Dallas Morning News.
Read the full media release
View the Texas Ethics Commission complaint
View the complaint letter to Travis County Attorney
Sunday, March 29, 2009
Why bother inspecting jails if the state can't enforce the rules? Jail Standards Commission Sunset bill up this week
The Dallas County Jail just failed its seventh straight annual jail inspection this week. The Montague County Jail failed its last inspection, exhibiting conditions later described as "Animal House meets Mayberry."
Texas jails get inspected, they fail, but the problems never get solved. Bottom line: The Texas Jail Standards Commission is powerless to enforce its own rules.
With the agency up for "Sunset" review this session, 2009 should be Texas' best opportunity to strengthen the agency's regulatory authority, but such changes weren't included in the Sunset bill that was filed. The senate version (carried by Robert Deuell) will be heard in the Senate Government Organization Committee on Wednesday, April 1. (That committee is chaired by Sen. Rodney Ellis, who will have a busy week with many of his innocence-related bills up in committee the day before.)
In the House, Rep. Linda Harper-Brown is carrying the TCJS Sunset bill, which has been assigned to the County Affairs Committee (chaired by Democrat Garnet Coleman), not Corrections Committee, which would seem like the more obvious choice.
It's not that the Sunset legislation as proposed doesn't have some good things in it, particularly improving the complaint process and increasing transparency about problems found at individual jails. But it wouldn't give TCJS authority, when it finds a situation like in Montague County, to formally require improvements or sanction jails for noncompliance.
Dallas' continued failure to meet state standards and the outlandish case in Montague County clearly demonstrate that TCJS doesn't have authority to enforce its own rules. This fact was openly discussed last year during the Sunset process, but the Sunset Commission chose not to recommend such new authority. The bill could still be amended, but regrettably, the current version does not substantially strengthen the agency's regulatory clout.
Texas jails get inspected, they fail, but the problems never get solved. Bottom line: The Texas Jail Standards Commission is powerless to enforce its own rules.
With the agency up for "Sunset" review this session, 2009 should be Texas' best opportunity to strengthen the agency's regulatory authority, but such changes weren't included in the Sunset bill that was filed. The senate version (carried by Robert Deuell) will be heard in the Senate Government Organization Committee on Wednesday, April 1. (That committee is chaired by Sen. Rodney Ellis, who will have a busy week with many of his innocence-related bills up in committee the day before.)
In the House, Rep. Linda Harper-Brown is carrying the TCJS Sunset bill, which has been assigned to the County Affairs Committee (chaired by Democrat Garnet Coleman), not Corrections Committee, which would seem like the more obvious choice.
It's not that the Sunset legislation as proposed doesn't have some good things in it, particularly improving the complaint process and increasing transparency about problems found at individual jails. But it wouldn't give TCJS authority, when it finds a situation like in Montague County, to formally require improvements or sanction jails for noncompliance.
Dallas' continued failure to meet state standards and the outlandish case in Montague County clearly demonstrate that TCJS doesn't have authority to enforce its own rules. This fact was openly discussed last year during the Sunset process, but the Sunset Commission chose not to recommend such new authority. The bill could still be amended, but regrettably, the current version does not substantially strengthen the agency's regulatory clout.
Saturday, March 28, 2009
Race, class and misconduct at a Dallas traffic stop
Having been focused on what's happening in Austin under the pink dome, I'd not found time to comment on the case of NFL player Ryan Moats , who was stopped by police while rushing his family to the hospital in Dallas to be with his wife's mother who they'd been told was near death. The whole exchange was caught on the officer's dashcam video and it's generous to say the officer comes off as a bully and a jerk, while Moats was the definition of class and poise, particularly under the circumstances. Moats' mother-in-law died while the officer detained them.
Unfortunately, this being Dallas, local media and activists feel compelled turn the issue into a racial conflict because the officer, Robert Powell, is white and Moats is black. James Ragland, a columnist for the Dallas News, offered up a column titled "Racial dynamics can't be ignored in Ryan Moats traffic stop" (March 27). I think he's wrong; I think the racial dynamics can be ignored and, in this instance, should be.
There's plenty to criticize about the Moats' traffic stop without bringing race into the argument.
From my perspective, as somebody who ran the ACLU of Texas' Police Accountability Project for six years, this is a story about straight up police misconduct - an officer exhibiting arrogance and a willingness to abuse his authority in deference to his own ego, perhaps emboldened by training he's received that teaches him to take control of a situation and demand absolute compliance at traffic stops backed up by threat of force.
The case also shows why the dashcams now installed in most Texas police cruisers doing traffic enforcement are a good thing and serving the purpose for which they were installed: Protecting the vast majority of good cops who're doing the right thing while creating a record when some bully with a badge steps over the line.
From the video record, I don't view what happened to Mr. Moats' family much differently than I do the poor folks in San Marcos last year whose dog died while they were detained on the way to the emergency vet. "It's a dog, okay," the cop said to the distraught couple as the animal lay dying in the back seat, "you can get another one."
That brand of callous disregard - the notion that an officer projecting authority is more important than common sense and respecting the humanity of the situation they're dealing with - lies at the root of many cases of police overreaction and misconduct. It's an attitude that's part of police culture and training, not some racial slight.
Notably, Moats' views were more constructive than Mr. Ragland's, recognizing that what happened to his family wasn't wrong because he's black, but because he's human and an American. He told the Dallas News, "I never really throw that [race] card. From my point of view, he [Powell] wasn't going to listen to reason at all. He didn't care what I was saying."
That dynamic of interaction with civilians is fairly typical in police misconduct cases, and it's something that's embedded in police training, policies, and culture, not just poor race relations. The couple in San Marcos last year whose dog died was white.
The Moats' experience is an unfortunate and important story, but IMO Ragland's racial angle is among the least important things about it.
At the end of the day, the fact that this even became a news story probably has more to do with class than race. As Digby noted, "The Dallas police department apologized, which is terrific and all, but one wonders if the person wasn't an NFL player if he'd even get that."
Unfortunately, this being Dallas, local media and activists feel compelled turn the issue into a racial conflict because the officer, Robert Powell, is white and Moats is black. James Ragland, a columnist for the Dallas News, offered up a column titled "Racial dynamics can't be ignored in Ryan Moats traffic stop" (March 27). I think he's wrong; I think the racial dynamics can be ignored and, in this instance, should be.
There's plenty to criticize about the Moats' traffic stop without bringing race into the argument.
From my perspective, as somebody who ran the ACLU of Texas' Police Accountability Project for six years, this is a story about straight up police misconduct - an officer exhibiting arrogance and a willingness to abuse his authority in deference to his own ego, perhaps emboldened by training he's received that teaches him to take control of a situation and demand absolute compliance at traffic stops backed up by threat of force.
The case also shows why the dashcams now installed in most Texas police cruisers doing traffic enforcement are a good thing and serving the purpose for which they were installed: Protecting the vast majority of good cops who're doing the right thing while creating a record when some bully with a badge steps over the line.
From the video record, I don't view what happened to Mr. Moats' family much differently than I do the poor folks in San Marcos last year whose dog died while they were detained on the way to the emergency vet. "It's a dog, okay," the cop said to the distraught couple as the animal lay dying in the back seat, "you can get another one."
That brand of callous disregard - the notion that an officer projecting authority is more important than common sense and respecting the humanity of the situation they're dealing with - lies at the root of many cases of police overreaction and misconduct. It's an attitude that's part of police culture and training, not some racial slight.
Notably, Moats' views were more constructive than Mr. Ragland's, recognizing that what happened to his family wasn't wrong because he's black, but because he's human and an American. He told the Dallas News, "I never really throw that [race] card. From my point of view, he [Powell] wasn't going to listen to reason at all. He didn't care what I was saying."
That dynamic of interaction with civilians is fairly typical in police misconduct cases, and it's something that's embedded in police training, policies, and culture, not just poor race relations. The couple in San Marcos last year whose dog died was white.
The Moats' experience is an unfortunate and important story, but IMO Ragland's racial angle is among the least important things about it.
At the end of the day, the fact that this even became a news story probably has more to do with class than race. As Digby noted, "The Dallas police department apologized, which is terrific and all, but one wonders if the person wasn't an NFL player if he'd even get that."
Friday, March 27, 2009
Hundreds of new crimes, enhancements proposed at Texas Lege
On the Texas District and County Attorneys Association website, we find this unofficial statistical compilation of new crimes and penalty hikes proposed at the 81st Texas Legislature:
UPDATE: Speaking of new crimes and penalty enhancements, there are quite a few of them proposed on the agenda of the Property Crimes subcommittee of the House Criminal Jurisprudence Committee Monday morning, including a graffiti bill I'd written about earlier.
The bill filing deadline is over and we've just about got all of the horses in the corral. A preliminary head count of the bills we are tracking yields the following unofficial information:More than 7,000 bills were filed overall this session. H/t Shannon Edmonds.
Total number of bills tracked: 1, 445
Number of bills in the following categories:
New misdemeanors: 195
New felonies: 71
New enhancements: 109
New civil duties: 77
Sex offenders: 70
DWI: 58
Death penalty: 40
Gang bills: 37
(Percent of these bills suggested by prosecutors: about 3%!)
UPDATE: Speaking of new crimes and penalty enhancements, there are quite a few of them proposed on the agenda of the Property Crimes subcommittee of the House Criminal Jurisprudence Committee Monday morning, including a graffiti bill I'd written about earlier.
TPPF report encourages Ohio model for Texas juvie reformers
The Texas Public Policy Foundation has issued a new report, "Reclaiming Texas Youth: Applying lessons from RECLAIM Ohio to Texas" (written by two academics from the Center for Criminal Justice Research at the University of Cincinnati), which a senate staffer tells me is "similar to our proposal on TYC and TJPC."
At first glance much of this looks quite reasonable, though I've not had a chance to read the document thoroughly. But my brief review also highlighted a nagging concern I've had about Texas' proposals: The success of shifting to local programs, measured in recidivism rates, said TPPF, depended entirely on the quality of programming offered to youth: "High quality programs had lower recidivism rates than programs of lesser quality."
So key to enacting such a transformation while protecting public safety would be eliminating pockets of "lesser quality" programming, ensuring adequate quality control at county youth programs and private facilities with which they contract. Right now in Texas, many county youth detention facilities - particularly those following "boot camp" models - don't even pretend to follow the types of best practices described in Ohio by the TPPF report.
It's also worth mentioning that Mike Ward at the Austin Statesman recently criticized Ohio's juvie program for "permitting children to be routinely shackled, mandating that children accused of certain crimes be charged as adults and by not ensuring that all children accused of crimes get lawyers.'” So Texas should definitely be selective about what policies it copies from Ohio, or anywhere else.
That said, the overall structure of the Ohio's financing mechanisms for local programming seem sound and generally applicable here, particularly if they're piloted by volunteers and phased in over several years where community resources are lacking, as was the case in the Buckeye State. Anyone with a stake in reforms at TYC and TJPC should definitely read this document, which I'm told is indicative of the general direction legislators would like to go, though not a written-in-stone blueprint.
RELATED: Looks like the TYC/TJPC Sunset bill is up next week in House Corrections; it's HB 3689 "Relating to abolishing the Texas Youth Commission and the Texas Juvenile Probation Commission and transferring the powers and duties of those agencies to the newly created Texas Juvenile Justice Department and to the functions of the independent ombudsman for the Texas Youth Commission."
At first glance much of this looks quite reasonable, though I've not had a chance to read the document thoroughly. But my brief review also highlighted a nagging concern I've had about Texas' proposals: The success of shifting to local programs, measured in recidivism rates, said TPPF, depended entirely on the quality of programming offered to youth: "High quality programs had lower recidivism rates than programs of lesser quality."
So key to enacting such a transformation while protecting public safety would be eliminating pockets of "lesser quality" programming, ensuring adequate quality control at county youth programs and private facilities with which they contract. Right now in Texas, many county youth detention facilities - particularly those following "boot camp" models - don't even pretend to follow the types of best practices described in Ohio by the TPPF report.
It's also worth mentioning that Mike Ward at the Austin Statesman recently criticized Ohio's juvie program for "permitting children to be routinely shackled, mandating that children accused of certain crimes be charged as adults and by not ensuring that all children accused of crimes get lawyers.'” So Texas should definitely be selective about what policies it copies from Ohio, or anywhere else.
That said, the overall structure of the Ohio's financing mechanisms for local programming seem sound and generally applicable here, particularly if they're piloted by volunteers and phased in over several years where community resources are lacking, as was the case in the Buckeye State. Anyone with a stake in reforms at TYC and TJPC should definitely read this document, which I'm told is indicative of the general direction legislators would like to go, though not a written-in-stone blueprint.
RELATED: Looks like the TYC/TJPC Sunset bill is up next week in House Corrections; it's HB 3689 "Relating to abolishing the Texas Youth Commission and the Texas Juvenile Probation Commission and transferring the powers and duties of those agencies to the newly created Texas Juvenile Justice Department and to the functions of the independent ombudsman for the Texas Youth Commission."
Tables turned on Judge Sharon Keller and the right to counsel
Mark Bennett brilliantly dissects Court of Criminal Appeals Presiding Judge Sharon Keller's sworn answer to charges by the Commission on Judicial Conduct, and pulls out some gems. He writes:
Bennett's favorite part, though, involves Keller "whining about having to pay the counsel of her choice." She's asking for taxpayers to cover her attorney's fees after retaining Chip Babcock, one of the best-known, highest-priced lawyers in the state, to represent her. Writes Bennett:
She spends several paragraphs reiterating the facts of Michael Richard’s case (the “he had it coming” defense), explains that Richard was not seeking not to be executed, but rather not to be executed using the current protocol (the “only hastening the inevitable” defense) and points the finger at Court of Criminal Appeals counsel Edward Marty and Richard’s lawyers (the “some other dude did it” defense).Sounds like she's squirming a bit, doesn't it? Even more deliciously, writes Bennett:
My second favorite part of the answer is where Judge Keller claims that “If applied to these charges [Article 5] Section I-a(6)A [of the Texas Constitution] is unconstitutional under the United States and Texas Constitutions.” So part of the Texas Constitution is itself unconstitutional under the Texas Constitution.Genius! You can't make this stuff up! You see the same kind of tortured, circuitous logic routinely in her opinions, but it's great to see it on public display in a case drawing national attention.
Bennett's favorite part, though, involves Keller "whining about having to pay the counsel of her choice." She's asking for taxpayers to cover her attorney's fees after retaining Chip Babcock, one of the best-known, highest-priced lawyers in the state, to represent her. Writes Bennett:
If there is a constitutional right to counsel in this (non-criminal) case, it certainly doesn’t provide for a judge who isn’t indigent to get counsel at the taxpayers’ expense. And Judge Keller, whose salary is at least $150,000 a year and who, by her own admission, “own[s] a considerable amount of property” — including (in 1999) a $1.3 million piece of land in Dallas, landlord to a topless bar –is certainly not indigent.MORE: From Rick Casey at the Houston Chronicle and the New York Times' Lede Blog.Even if Judge Keller were entitled to appointed counsel, she would not be entitled to reasonable counsel of her choice. The State is not required to ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.’” Keller knows this, of course, because she joined in the opinion (Griffith v. State — WPD).
Judge Keller says she’s being forced to choose either to “defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit.” Why Babcock’s bill for defending meritless charges should be ruinous to the millionaire scion of a wealthy Dallas family is a mystery, but if this is a legitimate concern (and it must be, since the Honorable Sharon Keller herself swore to its truth) then Judge Keller might do what the working poor often have to do in criminal cases, and hire the lawyer she can afford rather than the lawyer she wants. The right to effective counsel is not the right to the best possible counsel.
If that idea is too unpalatable to her — if the Greenhill School girl can’t conceive of having anything but the absolute best — she can always fall back on daddy’s money. And if she finds herself too proud to ask daddy Jack for help, there’s one other option. There would be no ethical issue with Chip Babcock helping her for free, if only she were no longer a judge.
Thursday, March 26, 2009
Raft of innocence bills hit Senate committee next week
Lots of innocence-related legislation posted on next Tuesday's Texas Senate Criminal Justice Committee agenda.
I'll be discussing several of these bills on the blog in the coming days. A number of them are under negotiation with law enforcement interests and will likely have "committee substitutes" which will substantially alter language currently posted online. With that caveat, the key innocence bills up on Tuesday's Senate hearing include:
I'll be discussing several of these bills on the blog in the coming days. A number of them are under negotiation with law enforcement interests and will likely have "committee substitutes" which will substantially alter language currently posted online. With that caveat, the key innocence bills up on Tuesday's Senate hearing include:
- SB 116 (Ellis) Relating to electronically recording certain interrogations and the admissibility of certain statements made by a juvenile or a criminal defendant.
- SB 117 (Ellis) Relating to photograph and live lineup identification procedures in criminal cases. (Scaled back substantially from original, filed version.)
- SB 1681 (Hinojosa) Relating to requiring the corroboration of certain testimony to support a criminal conviction. (This bill expands on the requirement for corroborating informants in undercover drug stings passed when Hinojosa chaired the Criminal Jurisprudence Committee in the House in 2001; Chairman Whitmire, if memory serves, carried that bill in the senate.)
- SB 1916 (West) Relating to the automatic expunction of arrest records and files pertaining to an individual who has been pardoned.
- SB 1847 (Hegar) Relating to the provision of services to a wrongfully imprisoned person who is discharged from a correctional facility.
- SB 1976 (Whitmire) Relating to procedures for applications for writs of habeas corpus based on scientific evidence establishing the innocence of a criminal defendant. (Another bill where clarifying substitute language will likely be submitted at the hearing.)
Obama's Mexico policy so far depressingly familiar
Though it's early, and certainly there are many other pressing issues confronting the new president, I'm increasingly dismayed with the Obama Administration's foreign policy toward Mexico.
For starters, security matters aside, Congress should never have passed and President Obama should never have signed legislation banning Mexican truckers, which not only violated a treaty but immediately inspired new Mexican tariffs on US products. That's pure economic lunacy, ignoring his own public advice on free trade by crawling into some protectionist hole at a time when the economy's retracting. Mexico Trucker understatedly calls this a "small and dangerous spat." Certainly not a good, early sign the Administration has a grasp on US economic interests regarding Mexico.
Obama has received high marks from drug policy reformers in D.C. and on the west coast who are happy he ended the crackdown on state-sanctioned medical marijuana dispensaries, but for the issues I care about most, I can't say I care much for the new president's drug policies, particularly regarding Mexican drug cartels.
Black Hawk helicopters, for example, will not solve what's essentially an economic and political corruption problem in Mexico, but that's what Secretary of State Hillary Clinton offered them on her first trip down there this week. In many border cities, it's police officers helping smuggle the drugs. Who are you going to use the Black Hawks on, the local police station in Juarez?
Here's a prediction for you: Within the next ten years these helicopters will be used to suppress indigenous uprisings in Mexico's southern states, but they won't put a noticeable dent into drug trafficking. Why would Clinton and Obama want to put themselves in a position of being responsible for that entirely predictable result? Bad idea.
On the US enforcement side, DOJ recently declared that:
Basically, the Obama Administration is throwing good money after bad on its anti-cartel strategy through the same failed vehicles that led us exactly where we are. Again from DOJ:
Indeed, the Obama Administration is even indulging the same nativist fantasies on the nation's northern boundary, moving forward with a pointless Bush Administration initiative to require passports and more formal entry and egress to and from Canada. In practice, this will do little more than waste money on bureaucracy, back up traffic and restrict important regional economic ties - just like it has on the Mexican border, where we could cross the border with a Texas driver's license before 9/11.
Obama's Mexico policy so far amounts to more of the same, with a healthy new dose of protectionism larded on top. I'd hoped for a more thoughtful approach, starting with a greater focus on rooting out US-side corruption.
MORE: See related coverage from Drug War Chronicle.
Also, see related Grits posts:
For starters, security matters aside, Congress should never have passed and President Obama should never have signed legislation banning Mexican truckers, which not only violated a treaty but immediately inspired new Mexican tariffs on US products. That's pure economic lunacy, ignoring his own public advice on free trade by crawling into some protectionist hole at a time when the economy's retracting. Mexico Trucker understatedly calls this a "small and dangerous spat." Certainly not a good, early sign the Administration has a grasp on US economic interests regarding Mexico.
Obama has received high marks from drug policy reformers in D.C. and on the west coast who are happy he ended the crackdown on state-sanctioned medical marijuana dispensaries, but for the issues I care about most, I can't say I care much for the new president's drug policies, particularly regarding Mexican drug cartels.
Black Hawk helicopters, for example, will not solve what's essentially an economic and political corruption problem in Mexico, but that's what Secretary of State Hillary Clinton offered them on her first trip down there this week. In many border cities, it's police officers helping smuggle the drugs. Who are you going to use the Black Hawks on, the local police station in Juarez?
Here's a prediction for you: Within the next ten years these helicopters will be used to suppress indigenous uprisings in Mexico's southern states, but they won't put a noticeable dent into drug trafficking. Why would Clinton and Obama want to put themselves in a position of being responsible for that entirely predictable result? Bad idea.
On the US enforcement side, DOJ recently declared that:
The Mexican Cartel Strategy, led by the Deputy Attorney General, uses federal prosecutor-led task forces that bring together all law enforcement components to identify, disrupt and dismantle the Mexican drug cartels through investigation, prosecution and extradition of their key leaders and facilitators, and seizure and forfeiture of their assets."Gee, that's original. Why hasn't anyone ever tried that before? DOJ announced it's sending 450 more agents to the border, but the truth is they're defending a line on a map that doesn't mean much if, as Texas' homeland security director told the Legislature recently, the cartels' "command and control" centers are actually closer to Houston than the Rio Grande. These smugglers have distribution networks spread out all over North America, you can't choke them off at one spot - that tactic failed under each of the last four Presidents and there's nothing magic about this one that will make it succeed now.
Basically, the Obama Administration is throwing good money after bad on its anti-cartel strategy through the same failed vehicles that led us exactly where we are. Again from DOJ:
DOJ's Organized Drug Enforcement Task Forces Program (OCDETF) is adding analyst personnel to its strike force capacity along the Southwest border and the Office of Justice Programs will be investing $30 million in stimulus funding to assist with state and local law enforcement to combat narcotics activity coming through the southern border and in high intensity drug trafficking areas. State and local law enforcement organizations along the border can apply for COPS and Byrne Justice Assistance grants from the $3 billion provided for those programs in the stimulus package.So they've got plenty of new money but zilch for new strategies, is how I take this information.
Indeed, the Obama Administration is even indulging the same nativist fantasies on the nation's northern boundary, moving forward with a pointless Bush Administration initiative to require passports and more formal entry and egress to and from Canada. In practice, this will do little more than waste money on bureaucracy, back up traffic and restrict important regional economic ties - just like it has on the Mexican border, where we could cross the border with a Texas driver's license before 9/11.
Obama's Mexico policy so far amounts to more of the same, with a healthy new dose of protectionism larded on top. I'd hoped for a more thoughtful approach, starting with a greater focus on rooting out US-side corruption.
MORE: See related coverage from Drug War Chronicle.
Also, see related Grits posts:
- Border Economics 101
- Better border strategies needed for journalist, witness protection, unmasking corruption
- Time for new Mexican anti-drug strategies
- Cartel violence so far stays in Mexico, but corruption crosses the river
- Plane used for CIA renditions also smuggled drugs
- Prosecuting 'replaceable' cartel smugglers
- 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
- Mexican cartels still supplying illegal drugs despite massive numbers of deaths and arrests
- Mexican drug gangs hiring teenage assassins in Texas
- Teen hitmen do Gulf Cartel dirty work on US side of the border
- What do we know about US-side cartel infrastructure?
Wednesday, March 25, 2009
Conviction upheld for only cop prosecuted in Dallas 'fake drug' scandal
Among the cases on the hand-down list from the Texas Court of Criminal Appeals today is an opinion in the case of Mark de la Paz vs. the State of Texas - litigation growing out of the infamous Dallas "fake drug" case where an informant helped crooked Dallas narcotics officers set up 24 people The opinion, written by Judge Cathy Cochran, opens:
The Dallas "fake drug" scandal was uncovered because of a 2001 statute requiring confidential informants in undercover drug stings - a law passed in the wake of the Tulia and Hearne cases in which innocent people were set up in undercover drug stings. Then, after the law changed in September 2001 to require corroboration for a conviction, Dallas prosecutors went to look for corroborating evidence in cases involving their most important CI's testimony. That was when they discovered half of all the cocaine seized in Dallas County in 2001 and 75% of the methamphetamines was actually fake drugs used to set up innocent people.
So you never know what kind of dominoes will start to drop when the Lege passes reform bills like that.
As for De la Paz, he's not alone in his culpability, though he's paid the dearest price. At the end of the day, eight different Dallas narcotics officers including De la Paz and his partner signed their names to field tests claiming fake drugs were real, but none but De la Paz have been held to account by the courts.
If the Legislature hadn't installed the 2001 corroboration requirement, a lying informant's word would have been good enough to convict 24 innocent people, they all would have gone to prison or been deported, and this lurid tale of corruption would never have come to light. Makes you wonder if we might see similar revelations down the line if the Lege were to pass a requirement for corroborating jailhouse informants?
Appellant, a former Dallas Police Department Narcotics detective, was convicted of (1) tampering with physical evidence for knowingly making false statements in a police report, and (2) aggravated perjury for making the same false statements under oath. The court of appeals reversed the convictions, holding that the trial court's admission of extraneous-offense evidence violated Rule of Evidence 404(b) and was harmful. (1) We granted review to address the application of Rule 404(b) in this context. (2) We find that the extraneous offenses were admissible to prove a fact of consequence-appellant's knowledge that his statements were false when he made them.Cochran wrote that additional offenses brought into evidence were probative to rebut lies by De la Paz, noting that:
In each case, appellant's confidential informant planted fake drugs to frame an innocent person. In each case, appellant stated in his police report that he witnessed the contact or delivery. The extraordinary coincidence that appellant saw drug deals that no one else did three different times flies in the face of common sense. Under the "doctrine of chances," evidence of such a highly unlikely event being repeated three different times would allow jurors to conclude that it is objectively unlikely that appellant was correct in his Vega offense report or that he was truthful in his testimonyThe unanimous, per curiam opinion was signed by all the CCA judges except Judge Sharon Keller, who may be busy getting ready for her removal hearing before the Commission on Judicial Conduct.
The Dallas "fake drug" scandal was uncovered because of a 2001 statute requiring confidential informants in undercover drug stings - a law passed in the wake of the Tulia and Hearne cases in which innocent people were set up in undercover drug stings. Then, after the law changed in September 2001 to require corroboration for a conviction, Dallas prosecutors went to look for corroborating evidence in cases involving their most important CI's testimony. That was when they discovered half of all the cocaine seized in Dallas County in 2001 and 75% of the methamphetamines was actually fake drugs used to set up innocent people.
So you never know what kind of dominoes will start to drop when the Lege passes reform bills like that.
As for De la Paz, he's not alone in his culpability, though he's paid the dearest price. At the end of the day, eight different Dallas narcotics officers including De la Paz and his partner signed their names to field tests claiming fake drugs were real, but none but De la Paz have been held to account by the courts.
If the Legislature hadn't installed the 2001 corroboration requirement, a lying informant's word would have been good enough to convict 24 innocent people, they all would have gone to prison or been deported, and this lurid tale of corruption would never have come to light. Makes you wonder if we might see similar revelations down the line if the Lege were to pass a requirement for corroborating jailhouse informants?
Justice Project: Faulty eyewitness IDs are leading false conviction cause
I attended a press conference at the capitol this a.m. where The Justice Project announced the release of:
a new report on Texas wrongful convictions exposed by DNA evidence. Convicting the Innocent: Texas Justice Derailed presents the cases of thirty-nine innocent men who served over 500 years in prison for crimes they did not commit. The report also highlights key reforms Texas must implement to address the flawed evidence and systemic problems that led to these mistakes.
The report finds that "eyewitness misidentification is by far the leading factor in wrongful convictions in Texas." According to the press release:
the cases of thirty-nine innocent Texans who collectively spent more than five hundred years in prison for crimes they did not commit. Convicting the Innocent: Texas Justice Derailed also presents reforms Texas must implement in order to improve the quality of evidence used in criminal cases and reduce the risk of wrongful convictions.
The report details how the devastation these cases have wrought begins with the wrongly convicted, but extends out to the family members, jurors and victims who become embroiled in a terrible injustice. The press conference will feature two jurors from a wrongful conviction case ... and Cory Session , the brother of Timothy Cole, who died in prison before DNA exonerated him. Senator Rodney Ellis will address pending reform legislation that responds directly to the systemic flaws identified in the wrongful conviction cases.
The report analyzes the social costs that result when faulty evidence leads a criminal investigation off track, including the crimes committed by the actual perpetrators following the conviction of the wrong person.
See The Justice Project's full press release and initial coverage of the report from TPM Cafe.
Ironically, by focusing solely on DNA exonerations, such analyses understate the real number of innocent Texans who've been exonerated - 35 were pardoned from the Tulia drug stings, 24 innocents were set up in the Dallas "fake drug" scandal, and another dozen or so were set up by a lying informant in Hearne, an event about which a major motion picture will be released next month.
Add those to the 39 DNA cases the Justice Project examines and the number of recent exonerations easily tops 100. (And it would not be difficult for some law student to spend some quality time on Westlaw to add to the list.)
This Justice Project report represents particularly important work because Texas has refused, for the most part, to undertake any official examination of how these false convictions occurred and what can be done to correct them. In that sense, this publication fills an important gap in the debate.
MORE: See additional coverage from the Houston Chronicle.
Shackling, counting pregnant inmates
On its website, the Texas Jail Project is promoting two bills related to jail health care for pregnant women:
Further confirming the practice, Diana Claitor from TJP forwards this example of shackling pregnant women from the Dallas County Jail in the form of a letter from a nurse practitioner complaining about the practice last year.
Hard to imagine a postpartum shackling prohibition would be necessary - much less during "labor and delivery" - but apparently both the Texas Jail Project and the ACLU of Texas have received complaints about the practice from inmates and their families. TJP in particular has been gathering stories from incarcerated, expectant Moms since last year.• HB 3653: BANS the shackling of incarcerated women in labor and delivery (with some necessary exceptions for safety).
• HB 3654: requires county jails to plan their MEDICAL CARE of pregnant women and also requires them to COUNT how many pregnant women they have incarcerated.
Further confirming the practice, Diana Claitor from TJP forwards this example of shackling pregnant women from the Dallas County Jail in the form of a letter from a nurse practitioner complaining about the practice last year.
The best sobriety checkpoint bill I ever opposed
I'm not a fan, at all, of "sobriety checkpoints" on the roadways. Having grown up in the Cold War era, the whole idea has a bit too much of a "Can I see your papers, Comrade?" flavor to it for my tastes. Checkpoints where armed, uniformed agents of the state stop and question average citizens driving down the street were the kind of thing we used to point to under Communism in the old Soviet Union and say, "That doesn't happen in America."
But today, in many states, it does. And perhaps soon in Texas, too.
That said, SB 298 by Sen. John Carona authorizing sobriety checkpoints is one of the best efforts I've seen to focus the tactic in tightly on its stated goal of reducing drunk driving while avoiding Big Brother-esque pitfalls and revenue generation schemes that make civil libertarians wince at the tactic. Carona's bill was placed on yesterday's "intent calendar" in the senate (meaning it was eligible to be debated and voted on), but was usurped on the agenda by debates over higher education and the top ten percent rule. It could be voted on in the Texas Senate as soon as today.
I still oppose sobriety checkpoints and thus on principle I oppose this bill. I just don't like the idea of police stopping motorists without probable cause, believing traditional DWI enforcement tactics work better and are less invasive. But if you think drunk driving is so bad that it warrants use of more totalitarian tactics, the limits Sen. Carona places on checkpoints are a laudable effort to address the main criticisms of the practice while still authorizing its use.
Here's a summary of the legislation, which passed 9-0 out of the Senate Transportation and Homeland Security Committee:
I've long believed the reason law enforcement so badly wants "sobriety checkpoints" was as a platform for revenue generation schemes, either nabbing the 10% of Texas drivers with outstanding arrest warrants or the 25% with no liability insurance. But this proposal essentially eliminates those motives by disallowing officers from asking for ID without reasonable suspicion and videotaping the encounter. That forces agencies to operate sobriety checkpoints transparently, without improperly expanding their focus to other areas.
Carona has crafted a serious, interesting compromise on a subject that's been a biennial source of bitter contention. Indeed, part of me almost wants to support SB 298 just so we can stop fighting about it at the Lege every two years and move onto something else.
This is by far the best sobriety checkpoint bill I've ever opposed.
But today, in many states, it does. And perhaps soon in Texas, too.
That said, SB 298 by Sen. John Carona authorizing sobriety checkpoints is one of the best efforts I've seen to focus the tactic in tightly on its stated goal of reducing drunk driving while avoiding Big Brother-esque pitfalls and revenue generation schemes that make civil libertarians wince at the tactic. Carona's bill was placed on yesterday's "intent calendar" in the senate (meaning it was eligible to be debated and voted on), but was usurped on the agenda by debates over higher education and the top ten percent rule. It could be voted on in the Texas Senate as soon as today.
I still oppose sobriety checkpoints and thus on principle I oppose this bill. I just don't like the idea of police stopping motorists without probable cause, believing traditional DWI enforcement tactics work better and are less invasive. But if you think drunk driving is so bad that it warrants use of more totalitarian tactics, the limits Sen. Carona places on checkpoints are a laudable effort to address the main criticisms of the practice while still authorizing its use.
Here's a summary of the legislation, which passed 9-0 out of the Senate Transportation and Homeland Security Committee:
- Law enforcement agencies may establish sobriety checkpoints for the sole purpose of enforcing drunk driving laws, not as a way to check for warrants, liability insurance, etc..
- Agencies must put procedures for choosing sites and operating checkpoints in writing and publish them online along with dates and times (but not locations) of the checkpoints.
- Procedures for selecting who to stop must be "reasonably predictable and nonarbitrary."
- "The criteria for selecting the location ... must include the number of traffic accidents in the vicinity ... in which the use of alcohol was a factor ... in the preceding 12 months and the number of arrests for intoxication-related offenses in that vicinity in the preceding 12 months."
- Signs ahead of the checkpoint must advise oncoming motorists it's coming up.
- Officers conducting the checkpoint must wear uniforms.
- Encounters with motorists must be videotaped. (Note: Shouldn't there be audio?)
- Officers may not ask to see motorists' drivers' license or insurance unless there is reasonable susupicion to believe they've committed an offense.
- Each stop should take less than three minutes unless there is reasonable suspicion to think an offense has been committed, and police must make "reasonable efforts" to ensure each stop won't take more than one minute.
- The total time motorists must wait to get through the checkpoint should not exceed ten minutes, and "reasonable efforts" must be made to get traffic through in less than five.
- "A law enforcement agency may not operate a sobriety checkpoint at one location for more than four hours and may not operate a checkpoint at the same location more than once in a 12-month period. For the purposes of this subsection, sobriety checkpoints located within one mile of each other are considered to be at the same location."
- Finally, records about the event - including time, location, duration, procedures, number of stops and arrests, and which officers were involved - must be maintained for at least five years.
I've long believed the reason law enforcement so badly wants "sobriety checkpoints" was as a platform for revenue generation schemes, either nabbing the 10% of Texas drivers with outstanding arrest warrants or the 25% with no liability insurance. But this proposal essentially eliminates those motives by disallowing officers from asking for ID without reasonable suspicion and videotaping the encounter. That forces agencies to operate sobriety checkpoints transparently, without improperly expanding their focus to other areas.
Carona has crafted a serious, interesting compromise on a subject that's been a biennial source of bitter contention. Indeed, part of me almost wants to support SB 298 just so we can stop fighting about it at the Lege every two years and move onto something else.
This is by far the best sobriety checkpoint bill I've ever opposed.
Tuesday, March 24, 2009
Senate reconsidering TYC budget cuts
According to the Statesman, a proposed 40% budget cut proposed in the Texas Senate for the Youth Commission "appears to be derailing." Reported Mike Ward:
In recent days, the $430 million has re-emerged for inclusion in the Senate version of the budget. That reportedly is to include a pay raise for TYC correctional officers.
If adopted at a meeting of the Senate Finance Committee this afternoon, the funding stream would mean taxpayers will spend about $84,000 per year per kid rather than $99,000, according to two Senate number-crunchers.
But $84,000 is still much more than the county incarceration and treatment programs will cost, critics note. Agency supporters insist it is justified, and is less than before.
“I don’t like this at all,” said Senate Criminal Justice Commission Chairman John Whitmire, D-Houston, an outspoken critic of the agency’s spending and among the senators who have been working to cut the budget even more.
“What we’re getting ready to pay for is an expensive, overly bureaucratic agency that has way too many high-paid central office personnel than they need.”
Even if Senate Finance doesn't dismantle the agency through the budget, I hope they move forward with Sen. Whitmire's proposal to divert youth to counties using incentive-based grants.
In the short run, it's unclear how much cheaper diversion to counties would be. Under one estimate from Dallas, counties would be reimbursed $222 per day or $81,030 per year. Other counties, including Travis and a collection of probation departments from Southeast Texas, thought they could get the job done at $175 per day, or $63,875 per year, according to documents provided to this blog. (Of course, there would also be additional state costs for grant distribution, oversight, rule enforcement, etc..)
But I do think that, just as Sen. Whitmire and the Lege have done with the adult system, the state can and should still use grant-based incentives to change local juvie policy over time so that the number of TYC commitments declines - hopefully substantially. If TYC populations decline precipitously because of the diversion grants, two years from now the arguments for dramatically downsizing it will be much stronger.
I've never really bought into the notion that transforming the juvenile justice system would be cheaper in the short-run, though in the long run that will likely be true. But my skepticism about cost savings doesn't mean I oppose more local placements for offenders where adequate facilities exist. What's more, I think incentive-based grants have a proven track record in Texas' adult system and would work equally well in the juvie realm.
False claim of unfair competition could limit in-prison work programs
The Texas Department of Criminal Justice has very few reentry programs, but one of its more successful ones is under fire at Thursday's House Corrections Committee meeting in the form of HB 1914 by committee chairman Jim McReynolds (with a companion bill in the Senate filed by Sen. Robert Nichols), aimed at further eliminating most prison industries programs on the false assumption that they take jobs away from people in the free world.
The Prison Industry Enhancement Certification or PIE program was created 15 years ago - designed to give inmates work skills and provide inexpensive labor to industry participants. PIE has 200-300 working inmates at any given time - only five companies participate currently.
Among other things, HB 1914 would require TDCJ to reject prison industries contracts "if the board determines that the contract has negatively affected or would negatively affect any employer in this state." That's so broad, it's inevitable somebody will come forward to complain. I'm told by those involved with prison industry programs that, if this bill passes, they fear it will soon eliminate PIE programs entirely.
By all accounts, PIE has a pretty good track record as reentry programs go - recidivism is low, inmates help pay for their incarceration, pay into the Crime Victims Fund, and contribute to supporting their families in the free world. PIE graduates frequently are employed upon release by their in-prison employer, helping overcome the biggest barrier to success for ex-prisoners: finding a job.
But Chairman McReynolds and state Sen. Robert Nichols are seeking restrictions that would likely choke off PIE as it currently exists. Why, you might ask?
Last year, a company called Lufkin Trailer (in McReynolds' and Nichols' districts) cried foul claiming that a PIE-based competitor, Direct Trailer, assumed an unfair advantage because they used inmate labor and paid minimal rent for their in-prison manufacturing facility. Sen. Nichols rode to their defense, convincing TDCJ to end Direct Trailer's contract. (Even so, with this supposedly unfair competition gone, Lufkin Industries continues to lay off more employees.)
The idea that in-prison manufacturers have some great advantage is a myth. For starters, Lufkin Trailer's 2008 10-K form filed with the SEC notes that "any labor disruption could have a significant impact on Trailer’s ability to maintain production levels," however think about the labor disruptions in prisons, where lockdowns, disciplinary actions, and any number of other problems free world employers never have to deal with may significantly impact labor availability.
Further, PIE programs must comply with byzantine prison rules that simply dont' affect free-world industries - for example, elaborate systems for counting and accounting for tools at the beginning and end of each shift to keep inmates from smuggling weapons or contraband.
For that matter, all existing PIE programs are relatively small endeavors that are unlikely to directly affect other Texas' businesses. Tellingly, in their official 2008 10-K statement, Lufkin Industries announced its decision to close Lufkin Trailer but didn't once mention competition from in-prison labor as a significant factor. Instead, the company blamed
So the prime example being trotted out to restrict the PIE program is a false one. International market conditions and competition from larger economic players were the reasons Lufkin Trailer closed, by the company's own assessment, not some penny ante prison industries operation.
Still, Sen. Nichols in particular continues to attack the PIE program as some villainous activity while painting Lufkin Trailer as an innocent victim of a prison jobs program. What Nichols neglects to mention is that Lufkin Industries recently lost a class action racial discrimination lawsuit brought by African American employees of Lufkin Industries (Lufkin Trailer was specifically named in the suit.) The conservative Fifth Circuit Court of Appeals in February of 2008, affirmed (pdf) most of the lower court's ruling against the company, particularly related to the "discriminatory impact of [the company's] subjective promotional policies." If Nichols and McReynolds are concerned about Lufkin Trailer employees, maybe they should be seeking remedies for those problems.
I wish the Corrections Committee was looking for ways to expand the PIE program, not restrict it beyond its current, minimalist presence in Texas prisons. After all, who would you rather have released from prison - the guy who sat around the whole time working out and swapping techniques with other cons, or the guy who went to work every day at a PIE facility and learned job skills to become a productive citizen upon release?
We need more initiatives like PIE and the Prison Entrepreneurship Program to prepare inmates for success upon reentry, not less. Efforts to restrict in-prison jobs programs IMO are misguided and counterproductive to public safety.
The Prison Industry Enhancement Certification or PIE program was created 15 years ago - designed to give inmates work skills and provide inexpensive labor to industry participants. PIE has 200-300 working inmates at any given time - only five companies participate currently.
Among other things, HB 1914 would require TDCJ to reject prison industries contracts "if the board determines that the contract has negatively affected or would negatively affect any employer in this state." That's so broad, it's inevitable somebody will come forward to complain. I'm told by those involved with prison industry programs that, if this bill passes, they fear it will soon eliminate PIE programs entirely.
By all accounts, PIE has a pretty good track record as reentry programs go - recidivism is low, inmates help pay for their incarceration, pay into the Crime Victims Fund, and contribute to supporting their families in the free world. PIE graduates frequently are employed upon release by their in-prison employer, helping overcome the biggest barrier to success for ex-prisoners: finding a job.
But Chairman McReynolds and state Sen. Robert Nichols are seeking restrictions that would likely choke off PIE as it currently exists. Why, you might ask?
Last year, a company called Lufkin Trailer (in McReynolds' and Nichols' districts) cried foul claiming that a PIE-based competitor, Direct Trailer, assumed an unfair advantage because they used inmate labor and paid minimal rent for their in-prison manufacturing facility. Sen. Nichols rode to their defense, convincing TDCJ to end Direct Trailer's contract. (Even so, with this supposedly unfair competition gone, Lufkin Industries continues to lay off more employees.)
The idea that in-prison manufacturers have some great advantage is a myth. For starters, Lufkin Trailer's 2008 10-K form filed with the SEC notes that "any labor disruption could have a significant impact on Trailer’s ability to maintain production levels," however think about the labor disruptions in prisons, where lockdowns, disciplinary actions, and any number of other problems free world employers never have to deal with may significantly impact labor availability.
Further, PIE programs must comply with byzantine prison rules that simply dont' affect free-world industries - for example, elaborate systems for counting and accounting for tools at the beginning and end of each shift to keep inmates from smuggling weapons or contraband.
For that matter, all existing PIE programs are relatively small endeavors that are unlikely to directly affect other Texas' businesses. Tellingly, in their official 2008 10-K statement, Lufkin Industries announced its decision to close Lufkin Trailer but didn't once mention competition from in-prison labor as a significant factor. Instead, the company blamed
reduced activity in the home and road construction markets as well as reduced profitability from higher fuel prices. In 2007, industry order rates and backlog for flatbed trailers decreased over 40% and for dump trailers over 25% compared to 2006 levels. In the fourth quarter of 2007, industry order rates and backlog for flatbed and dump trailers decreased almost 50% compared to the fourth quarter of 2006. Due to these market conditions, in January 2008, the Company announced the decision to suspend its participation in the commercial trailer markets and to develop a plan to run-out existing inventories, fulfill contractual obligations and close all trailer facilities during 2008.Indeed, the 10-K's specific discussion of "competition" never mentioned their PIE-based competition as a serious factor:
The trailer market is highly competitive with relatively low barriers to entry. The majority of the cost of a new trailer comes from purchased materials of aluminum, steel, tires, axles and wood flooring. Since there is minimal product differentiation in this market, price is the key driver. The companies with the highest market share are Great Dane and Wabash, along with several other large manufacturers like Utility, Stoughton, Fontaine, Vanguard and Hyundai. The Company does not have a significant market share in the trailer market.By that account, any minor, extra competition from a small PIE outfit didn't have nearly as much to do with Lufkin Trailer's closure as macro trends in the global trailer market and competition from larger producers. Direct Trailer isn't even mentioned in the company's 10-Ks as a significant source of competition.
So the prime example being trotted out to restrict the PIE program is a false one. International market conditions and competition from larger economic players were the reasons Lufkin Trailer closed, by the company's own assessment, not some penny ante prison industries operation.
Still, Sen. Nichols in particular continues to attack the PIE program as some villainous activity while painting Lufkin Trailer as an innocent victim of a prison jobs program. What Nichols neglects to mention is that Lufkin Industries recently lost a class action racial discrimination lawsuit brought by African American employees of Lufkin Industries (Lufkin Trailer was specifically named in the suit.) The conservative Fifth Circuit Court of Appeals in February of 2008, affirmed (pdf) most of the lower court's ruling against the company, particularly related to the "discriminatory impact of [the company's] subjective promotional policies." If Nichols and McReynolds are concerned about Lufkin Trailer employees, maybe they should be seeking remedies for those problems.
I wish the Corrections Committee was looking for ways to expand the PIE program, not restrict it beyond its current, minimalist presence in Texas prisons. After all, who would you rather have released from prison - the guy who sat around the whole time working out and swapping techniques with other cons, or the guy who went to work every day at a PIE facility and learned job skills to become a productive citizen upon release?
We need more initiatives like PIE and the Prison Entrepreneurship Program to prepare inmates for success upon reentry, not less. Efforts to restrict in-prison jobs programs IMO are misguided and counterproductive to public safety.
Monday, March 23, 2009
Blogworthy news and notes
I was out of pocket Friday, Saturday and Sunday for my job, which explains the blog's relative dormancy for the last several days. I'm too busy to write separately about all the interesting stuff that's come up since then, so here are several stories that deserve Grits readers' attention even if I don't have time to fully explore them:
New jails going up
Burnet County speculatively built a much larger jail than they need hoping to lease the rest as contract beds. Now they've found a source of prisoners: The state of Texas. "SAFPF (Substance Abuse Felony Punishment Facility) and ISF (Intermediate Sanctions Facility) programs will be offered at the new 587-bed facility when it accepts its first inmates April 1." Meanwhile, in Brownsville, Cameron County broke ground on a new 356 bed jail that will push the total number of jail beds oin the county over 1,000. The new jail will cost $15 million, plus interest and operating costs.
Journalists' shield law advances
It passed out of committee but the current version of Texas' proposed shield law for journalists wouldn't include most bloggers. In a sense, given the decline in the number of reporters, newspapers, and traditional press, that omission makes the bill seem a tad anachronistic. It defines journalists broadly enough to include many serious writers and freelance journalists, though work done here on Grits, for example, would not receive shield law protection under HB 670.
Make crime labs independent?
Houston City Councilmember Jolanda Jones had a column the other day echoing District Attorney Pat Lykos' call for an independent, regional crime lab removed entirely from under control of police and prosecutors. She writes, "A regional crime lab will separate science from law enforcement, help our police officers stay focused on apprehending criminals and preventing crime, and guard against the cross-contamination of motivations and results." Making crime labs independent was a key recommendation of the National Academey of Sciences recently released report critiquing shoddy methods and practices in forensic science disciplines (about which this blog will have more to say soon).
The Google Mistrial
I've not heard of his happening in Texas yet, but according to The New York Times, "The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges."
New jails going up
Burnet County speculatively built a much larger jail than they need hoping to lease the rest as contract beds. Now they've found a source of prisoners: The state of Texas. "SAFPF (Substance Abuse Felony Punishment Facility) and ISF (Intermediate Sanctions Facility) programs will be offered at the new 587-bed facility when it accepts its first inmates April 1." Meanwhile, in Brownsville, Cameron County broke ground on a new 356 bed jail that will push the total number of jail beds oin the county over 1,000. The new jail will cost $15 million, plus interest and operating costs.
Journalists' shield law advances
It passed out of committee but the current version of Texas' proposed shield law for journalists wouldn't include most bloggers. In a sense, given the decline in the number of reporters, newspapers, and traditional press, that omission makes the bill seem a tad anachronistic. It defines journalists broadly enough to include many serious writers and freelance journalists, though work done here on Grits, for example, would not receive shield law protection under HB 670.
Make crime labs independent?
Houston City Councilmember Jolanda Jones had a column the other day echoing District Attorney Pat Lykos' call for an independent, regional crime lab removed entirely from under control of police and prosecutors. She writes, "A regional crime lab will separate science from law enforcement, help our police officers stay focused on apprehending criminals and preventing crime, and guard against the cross-contamination of motivations and results." Making crime labs independent was a key recommendation of the National Academey of Sciences recently released report critiquing shoddy methods and practices in forensic science disciplines (about which this blog will have more to say soon).
The Google Mistrial
I've not heard of his happening in Texas yet, but according to The New York Times, "The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges."
Should have eloped
In Galveston last year, a bride's 19-year old brother got drunk and belligerent toward a police officer at her wedding, so he responded by calling in 30 more officers who decided to clear the room using "pepper spray and electrical shock Tasers to detain and arrest 13 people," including Houston Astros pitcher Brandon Backe. The event and subsequent disciplining of 13 Galveston police officers for the incident - not for excessive force but for "failing to record details of what happened" in official reports - made national headlines.
That's got to qualify as one of the worst weddings ever.
That's got to qualify as one of the worst weddings ever.
Should postpartum psychosis be a legal defense when Moms kill kids?
The Dallas News reports on legislation (HB 3318) by Texas state Reps Jessica Farrar and Garnet Coleman that would make postpartum disorder a legal defense for women who kill their children, allowing jurors to hear testimony at the sentencing phase about the medical issues surrounding postpartum psychosis, potentially sentencing the offense as a state jail felony if they believe that's what spawned the tragic event ("Proposed bill would recognize postpartum psychosis as defense for Moms who kill infants," March 23):
If lawmakers approve the measure, Texas would be the first state to have an infanticide law, said George Parnham, the Houston attorney who defended [Andrea] Yates.
"It's something every civilized country has on its books," said Parnham, a strong proponent of the legislation. "The only thing that will change public attitude is education about postpartum issues."
The bill, introduced earlier this month by Rep. Jessica Farrar, D-Houston, applies to women who commit the crime within 12 months of giving birth. If jurors find a defendant guilty of murder, they can take testimony about postpartum issues into consideration during the trial's punishment phase.
If jurors believe that the woman's judgment was impaired as a result of childbirth or lactation, they can find her guilty of infanticide – a state jail felony that would carry a maximum punishment of two years in jail. ...
Postpartum depression is recognized as a legal defense in at least 29 nations, including Britain, which has had an infanticide law on the books since 1922.
"These countries have accepted the reality of postpartum mood disorders," said Susan Dowd Stone, chair of the President's Advisory Council for Postpartum Support International, a California-based advocacy group. ...
Only one or two in 1,000 women develop postpartum psychosis that has been cited in high-profile cases like those of Schlosser, the Plano mother who killed her baby in 2004 by cutting off her arms, and Yates, the Houston mother who drowned her five children in 2001. Both women were found not guilty by reason of insanity and placed in mental-health treatment centers.
For every woman who receives treatment, there are 10 who are imprisoned for the crime, Stone said.
"These are not intentional acts," she said. "That's so hard for the public to grasp."
Postpartum psychosis is a rare condition that generally affects women with extreme sensitivity to hormonal fluctuations and a history of mental illness, Stone said.
Dr. Lucy Puryear, who was a defense expert in Andrea Yates' murder case, has written on this subject over at Women in Crime Ink. I'd be interested to hear her take on the bill. See more background on the subject from Postpartum Support International.
MORE (3/24): From Postpartum Progress, and the Houston Press' Hairballs blog. And since I'd asked for Dr. Puryear's opinion, let me highlight these views she expressed in Grits' comments:
I don't know exactly what the bill says that has been proposed but I'm not sure I'm in favor of conducting a trial and then hearing evidence about postpartum issues that would mitigate the sentance. I AM in favor of what England has, which is when a mother kills a child less than one year of age, the mother is FIRST evaluated by mental health professionals and if found to be suffering from postpartum illness then she is given appropriate treatment. It IS a waste of time, talent, and money to put an otherwise well functioning woman through a lengthy and expensive court process when the issue is medical, not criminal. It would be akin to what is being proposed in Houston, a "mental health court" where persons with mental illness are treated and tried by those who understand the nature of mental illness and it's effect on behavior.
No, I am NOT saying that if you are mentally ill then you should never be held responsible for your behavior. I am saying that if you do not have "control" over your behavior due to your mental illness than your circumstances are different. It is like having a seizure. No one can stop a seizure from happening: the behavior is avolitional, including shaking, eye rolling, wetting your pants, and being confused for a time afterwards. And yes there is medication for seizures, and guess what? People who seizure also stop taking their medication, as do people with diabetes, or heart disease, or any other medical disorder that requires someone to be compliant and tolerate side effects.
I am ranting I realize.
Very few women who suffer from postpartum illness kill their children. Most kill themselves. And of those who do committ infanticide, most kill themselves when released from jail or the hospital. When they are well they can live with the horror of their actions.
Well, I have to go help some more people with mental illness, otherwise you'd hear more from me. Thanks for listening.
Might restorative justice principles improve drug courts?
I'm a supporter of drug court programs, but I also believe they shouldn't be immune from criticism and all such diversion programs should be constantly, rigorously tested for effectiveness. So I was interested to see a couple of recent items on the topic that collectively describe the pros and cons of this increasingly popular (even faddish) approach to adjudicating drug cases.
The Houston Chronicle last week ran a feature ("Drug courts turn addicts around," March 17) on Harris County's drug court program claiming higher success rates than the national average:
An alternative perspective on drug courts was recently offered in a law review paper by Michael O'Hear, referenced over the weekend at Sentencing Law & Policy. O'Hear (I think rightly) believes that drug courts':
The paper first establishes why, from a statistical perspective, racial disparities in drug arrests and sentencing are not justified by claims that black folks commit drug offenses more frequently. However, he says, "much evidence now suggests that white drug offenders are more likely to benefit" from the "rigorous, prescribed course of therapy" provided by drug courts than blacks.
Not only do the screening processes on the front end prevent many black people from participating, there is also a high failure rate: "although there are about 70,000 [drug court] participants at any given time, the annual graduation rate is only about 16,000," and "failure rates are higher for blacks than whites, by thirty or more percentage points" in some programs. Failure, he notes, "may result in greater incarceration than non-participation."
O'Hear considers such racial disparities a compelling critique of drug courts as they currently exist and says a "better answer" would be "re-imagining drug courts in restorative justice (RJ) terms," noting that "An abundant body of research indicates that RJ processes tend to produce higher levels of satisfaction than traditional criminal processes among both victims and offenders."
He cites a program created by the Milwaukee District Attorney - the Milwaukee Community Conferencing Program - as an example of how restorative justice programs could be crafted as an appendage to the existing justice system. At these RJ conferences,
I'm giving the paper short shrift, but judges, attorneys, and others involved with drug court programs ought to give it a thorough read.
The Houston Chronicle last week ran a feature ("Drug courts turn addicts around," March 17) on Harris County's drug court program claiming higher success rates than the national average:
The article is well worth a read for an update and background on the 5-year old Harris County program.[Program director Mary] Covington said national data show that 43.5 percent of drug offenders are re-arrested a year after release.
Nationally, Covington said, 16.4 percent of drug court graduates have been convicted of new felony offenses within a year, compared to 6 percent of Harris County’s drug court graduates.
An alternative perspective on drug courts was recently offered in a law review paper by Michael O'Hear, referenced over the weekend at Sentencing Law & Policy. O'Hear (I think rightly) believes that drug courts':
popularity stems in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses— or, more colloquially, on the “war on drugs.” Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, prison populations (and hence prison budgets) were escalating wildly, and many poor minority communities were being devastated by the collateral damage.There are now more than 2,000 drug courts operating in all 50 states. Drug courts, he says, have become "the generic policy response of choice to dissatisfaction with the war on drugs," but points to one particular area where they do not, according to his research, improve over the traditional court system: "In purely quantitative terms, drug courts are unlikely to reduce [racial] disparities" ... in drug sentencing and "may exacerbate them."
The paper first establishes why, from a statistical perspective, racial disparities in drug arrests and sentencing are not justified by claims that black folks commit drug offenses more frequently. However, he says, "much evidence now suggests that white drug offenders are more likely to benefit" from the "rigorous, prescribed course of therapy" provided by drug courts than blacks.
Not only do the screening processes on the front end prevent many black people from participating, there is also a high failure rate: "although there are about 70,000 [drug court] participants at any given time, the annual graduation rate is only about 16,000," and "failure rates are higher for blacks than whites, by thirty or more percentage points" in some programs. Failure, he notes, "may result in greater incarceration than non-participation."
O'Hear considers such racial disparities a compelling critique of drug courts as they currently exist and says a "better answer" would be "re-imagining drug courts in restorative justice (RJ) terms," noting that "An abundant body of research indicates that RJ processes tend to produce higher levels of satisfaction than traditional criminal processes among both victims and offenders."
He cites a program created by the Milwaukee District Attorney - the Milwaukee Community Conferencing Program - as an example of how restorative justice programs could be crafted as an appendage to the existing justice system. At these RJ conferences,
CCP participants discuss the offense and its impact on the victim and the community more generally. They next try to reach an agreement as to what the offender will do to repair the harm. Agreements are embodied in writing, and include specific conditions for the offender that must be satisfied by a particular date. “Conditions often include some form of reflection (an essay, painting, or poem), letters of apology to the victim, specific community service, restitution in specific increments, tasks related to job/school, sharing experiences with youth, or [drug or alcohol] counseling/treatment.” Successful compliance with the conditions will result in some benefit from the prosecutor: charge dismissal, charge reduction, or recommendation to the judge for a reduced sentence.Lately, Milwaukee has begun including drug cases in these CCP conferences, and the "basic processes for drug cases are the same as for other cases in the CCP, although there is no distinct 'victim' at the conference." For a variety of reasons, O'Hear thinks a restorative justice approach may be more "capable [than drug courts] of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates."
I'm giving the paper short shrift, but judges, attorneys, and others involved with drug court programs ought to give it a thorough read.
Friday, March 20, 2009
Delay could be chance to improve DNA database bill
While the Texas Senate Criminal Justice Committee voted several bills out of committee this week - including Sen. Juan Hinojosa's legislation eliminating life without parole sentences for juveniles, substituting a flat 40 year minimum - I was somewhat surprised to see Sen. Dan Patrick's SB 727 expanding Texas' DNA database wasn't among them.
Sen. Patrick's bill would dramatically expand Texas' DNA database to include all adults on probation, all youth sent to TYC, and every juvenile convicted of a felony, massively expanding the size of the state's DNA collection. (Presently about 155,000 people are locked up in Texas prisons, while perhaps triple that number are on probation.)
Among juveniles, too, Patrick has suggested a breathtaking expansion by including not just youth in TYC but all juvenile felons. Only a fraction of youth adjudicated for felonies are sent to TYC, but many times that number are put on probation. The inclusion of these youth bothers me because there's no provision in the bill for how juveniles (or anyone else) can petition in the future for their DNA to be removed. How long should a felony graffiti rap when you're 15 keep you in the CODIS database?
Over time, we're talking about accumulating DNA data on a large proportion of Texans. When you consider that one in 22 adult Texans at any one time is under control of the criminal justice system (about one in 11 adult Texans have a felony record), we could easily see Texas go from the 400,000 or so currently in the CODIS database to millions in just a few years.
While the Senate committee takes extra time to consider Patrick's bill, I'd strongly suggest everyone involved with that decision - both committee members and staff - read Jeffrey Rosen's article this week at Slate ("Genetic surveillance for all," March 17) articulating potential downsides to creating such an uber-database - particularly the risks to personal privacy of family members who committed no crime - as thoughtfully as anyone I've seen.
Rosen foresees a terrible, slippery slope for the DNA database from the use of familial DNA searches, which he says amount to a "DNA dragnet," especially among African-American communities.
At a minimum, I'd have to agree that "the decision to record the probabilities of each match in racial terms gives a creepy whiff of eugenics to the CODIS database." I have no idea why scientists would choose to subcategorize probability rates by cultural distinctions like race - why would that method of parsing the data be any more probative than just using the same baseline for everybody?
One reason to focus on race may be that CODIS disproportionately includes African Americans, Rosen argues, thanks to crime patterns over the period DNA has been collected:
Of course, privacy risks and racial profiling concerns must be weighed against the law enforcement benefits. In the scheme of things, though, the DNA database doesn't solve very many cases; Texas solved its 1,000th case last year through the DNA database after 12 years of using it, but this is a state with around 850,000 felony adjudications annually, so that's not very many. As Mark Bennett points out, "Most cases don’t involve DNA. Most rape cases don’t involve DNA. Most child rape cases don’t involve DNA."
Far and away, most crimes are solved by routine investigation. Most cases solved using DNA match biological evidence with a particular suspect, or in the case of exonerations, innocence is established by the failure to match crime scene DNA (usually a rape kit) to the person convicted of the offense. Relatively few crimes are solved through a lucky hit on the database. Even when DNA exists, Texas crime labs lack sufficient capacity. All of them are backed up with months-long waits for analyses. This bill would add to crime labs' workload when they're barely able to handle the DNA caseload they've got.
So while it's true that DNA evidence is a useful new forensic tool, the database itself is not some crimefighting panacea. It's most often useful in serious, violent offenses, but Sen. Patrick's bill extends its tentacles more broadly to every type of offense.
The only government I know of that gathers DNA on as many of its citizens as Sen. Patrick is proposing would be Great Britain, where the Labour Party under Tony Blair built a database with 7.39% of the population in it, compared to about 0.5% in the United States. How has it worked out there? Last month, the House of Lords issued a report criticizing the growth of "surveillance society" tactics in the UK, fearing openly that widespread DNA collection could be misused for "malign purposes."
The House of Lords' report highlighted possible safeguards that might reasonably be included in Texas' bill, e.g,: "GeneWatch UK called for the reintroduction of 'a system of time limits on how long people are kept on the Database—so that only DNA profiles from people convicted of serious violent or sexual offences are kept permanently.'” That seems like a sensible approach to me, particularly in light of Sen. Patrick's proposed expansion to juveniles and probationers.
I don't know why SB 727 has been delayed when other bills heard at the same time are moving on through the system, but hopefully it's to scale back the legislation's sweeping scope, particularly among juveniles, and to create protocols and mechanisms for removing DNA samples from the database.
Sen. Patrick's bill would dramatically expand Texas' DNA database to include all adults on probation, all youth sent to TYC, and every juvenile convicted of a felony, massively expanding the size of the state's DNA collection. (Presently about 155,000 people are locked up in Texas prisons, while perhaps triple that number are on probation.)
Among juveniles, too, Patrick has suggested a breathtaking expansion by including not just youth in TYC but all juvenile felons. Only a fraction of youth adjudicated for felonies are sent to TYC, but many times that number are put on probation. The inclusion of these youth bothers me because there's no provision in the bill for how juveniles (or anyone else) can petition in the future for their DNA to be removed. How long should a felony graffiti rap when you're 15 keep you in the CODIS database?
Over time, we're talking about accumulating DNA data on a large proportion of Texans. When you consider that one in 22 adult Texans at any one time is under control of the criminal justice system (about one in 11 adult Texans have a felony record), we could easily see Texas go from the 400,000 or so currently in the CODIS database to millions in just a few years.
While the Senate committee takes extra time to consider Patrick's bill, I'd strongly suggest everyone involved with that decision - both committee members and staff - read Jeffrey Rosen's article this week at Slate ("Genetic surveillance for all," March 17) articulating potential downsides to creating such an uber-database - particularly the risks to personal privacy of family members who committed no crime - as thoughtfully as anyone I've seen.
Rosen foresees a terrible, slippery slope for the DNA database from the use of familial DNA searches, which he says amount to a "DNA dragnet," especially among African-American communities.
At a minimum, I'd have to agree that "the decision to record the probabilities of each match in racial terms gives a creepy whiff of eugenics to the CODIS database." I have no idea why scientists would choose to subcategorize probability rates by cultural distinctions like race - why would that method of parsing the data be any more probative than just using the same baseline for everybody?
One reason to focus on race may be that CODIS disproportionately includes African Americans, Rosen argues, thanks to crime patterns over the period DNA has been collected:
African-Americans, by several estimates, represent about 13 percent of the U.S. population but 40 percent of the people convicted of felonies every year. The CODIS database of 6.6 million now includes samples from convicted offenders. As arrestees are added to this mix, CODIS may soon grow to 50 million samples, which might be even more disproportionately African-American. Hank Greely of Stanford Law School has estimated that 17 percent of African-American citizens could be identified through familial searches, as opposed to only 4 percent of the Caucasian population. Once the implications of the racial disparity become clear, there may be a reaction against ever-more-expansive forms of DNA collection that makes the debate about racial profiling look tame.Given that Texas' own debates about racial profiling have been neither pleasant nor tame, from my perspective it would be better to have such discussions before the state massively expands its DNA database, not after.
Of course, privacy risks and racial profiling concerns must be weighed against the law enforcement benefits. In the scheme of things, though, the DNA database doesn't solve very many cases; Texas solved its 1,000th case last year through the DNA database after 12 years of using it, but this is a state with around 850,000 felony adjudications annually, so that's not very many. As Mark Bennett points out, "Most cases don’t involve DNA. Most rape cases don’t involve DNA. Most child rape cases don’t involve DNA."
Far and away, most crimes are solved by routine investigation. Most cases solved using DNA match biological evidence with a particular suspect, or in the case of exonerations, innocence is established by the failure to match crime scene DNA (usually a rape kit) to the person convicted of the offense. Relatively few crimes are solved through a lucky hit on the database. Even when DNA exists, Texas crime labs lack sufficient capacity. All of them are backed up with months-long waits for analyses. This bill would add to crime labs' workload when they're barely able to handle the DNA caseload they've got.
So while it's true that DNA evidence is a useful new forensic tool, the database itself is not some crimefighting panacea. It's most often useful in serious, violent offenses, but Sen. Patrick's bill extends its tentacles more broadly to every type of offense.
The only government I know of that gathers DNA on as many of its citizens as Sen. Patrick is proposing would be Great Britain, where the Labour Party under Tony Blair built a database with 7.39% of the population in it, compared to about 0.5% in the United States. How has it worked out there? Last month, the House of Lords issued a report criticizing the growth of "surveillance society" tactics in the UK, fearing openly that widespread DNA collection could be misused for "malign purposes."
The House of Lords' report highlighted possible safeguards that might reasonably be included in Texas' bill, e.g,: "GeneWatch UK called for the reintroduction of 'a system of time limits on how long people are kept on the Database—so that only DNA profiles from people convicted of serious violent or sexual offences are kept permanently.'” That seems like a sensible approach to me, particularly in light of Sen. Patrick's proposed expansion to juveniles and probationers.
I don't know why SB 727 has been delayed when other bills heard at the same time are moving on through the system, but hopefully it's to scale back the legislation's sweeping scope, particularly among juveniles, and to create protocols and mechanisms for removing DNA samples from the database.
Thursday, March 19, 2009
Needle exchange bill sails through Senate, headed to House
Having written earlier that it was possible to count 23 votes in the Texas Senate for a local-control bill authorizing needle exchange, I'm pleased but unsurprised to see Sen. Robert Deuell's SB 188 pass the Senate on a 23-7 vote. Writes Noelle at Sifting the Haystack:
The House voted for a pilot program in San Antonio last session by a wide margin, so the bill has a decent chance of passing both chambers if the new committee chair in House Public Health will consent to give it a vote.
The biggest obstacle may be Governor Perry, who reportedly opposes the legislation despite significant small-government conservative backing for the measure - 11 of the 18 Republicans voting on the measure in the Senate supported the bill.
While laying out the bill Senator Deuell said that if this legislation becomes law it will save the state money without costing the state any money, and that countless studies have shown syringe exchange programs do not increase drug use.Sifting the Haystack also points to an op ed in the Abilene Reporter News supporting the legislation. The bill does not require local governments to operate a needle exchange program, and likely most won't, but for the big urban areas it makes sense, both to save lives and health care costs.
Senator Wentworth pointed out that Bexar County District Attorney Susan Reed, who blocked full implementation of the pilot syringe exchange program that passed last session, has advised his office that if this bill passes she will not prosecute people participating in the programs.
To watch the Senate consideration and vote on CSSB 188 visit the Senate RealMedia Video Archives page, scroll down and click on the March 18 Senate Session, and skip ahead to 2:07:20 into the video.
The House voted for a pilot program in San Antonio last session by a wide margin, so the bill has a decent chance of passing both chambers if the new committee chair in House Public Health will consent to give it a vote.
The biggest obstacle may be Governor Perry, who reportedly opposes the legislation despite significant small-government conservative backing for the measure - 11 of the 18 Republicans voting on the measure in the Senate supported the bill.
US media, leaders, refocusing on Mexico in wake of cartel violence
It seems like the national media is just now, finally, catching on that feuds between transnational drug cartels and the Mexican government have become a bigger, immediate security problem for America than anything happening in the Middle East. Here are several recent items that indicate the media and US leaders are thinking more seriously about the issue than at any time in recent memory:
- Barack Obama to visit Mexico: Drug war, immigration to be discussed, El Paso Times, March 19
- Drug cartels' new weaponry means war," LA Times, March 15. "Narcotics traffickers are acquiring firepower more appropriate to an army -- including grenade launchers and antitank rockets."
- Houston's underworld connection with Mexican drug cartels, The New Criminologist, March 16. "'Right now, we know Texas [is] the number one source of weapons smuggled into Mexico, most of them coming from Houston and Dallas,' says, Special-Agent-in-Charge, Dewey Webb, of ATF (Alcohol Tobacco Firearms)."
- Mexico drug lord on Forbes rich list with $1 billion, Reuters, March 11. Joaquin "Shorty" Guzman, the 5 foot tall leader of the Sinaloa smuggling cartel, cracks Forbes' big-time list of billionaires.
- The Evolution of Los Zetas, Mexidata.info, Sam Logan, March 16. "Many journalists and analysts who write about Los Zetas still refer to this group as the enforcement branch of the Gulf Cartel. This was a true description when the original 31 Special Forces soldiers abandoned the Mexican military to protect a young, upcoming leader of the Gulf Cartel, Osiel Cardenas Guillen. But today the Zetas have evolved into a separate entity with its own agenda. And it doesn't take orders from the Gulf Cartel."
- How to stop the drug wars, The Economist, March 4. "Prohibition has failed; legalisation is the least bad solution," reads the subhed.
Wednesday, March 18, 2009
If Andre Thomas is not insane, the insanity-defense law is
The Texas Court of Criminal Appeals ruled that capital murderer Andre Thomas, who plucked out both eyes while incarcerated awaiting his death sentence - and ate one of them - "is clearly 'crazy,' but he is also 'sane' under Texas law," reports the Dallas News.
What that tells me is that we're confronting a bad law if it's so constricting the state's highest criminal court doesn't have leeway to deliver justice in cases where the defendant's criminal behavior is clearly driven by mental illness. It's just ridiculous to send somebody who's so obviously nuts to death row - what's the moral point of killing a guy who'd mutilate himself to death if you let him? What's the insanity defense for if not cases like this one?
These are deep, murky waters the court has waded into to fish out yet another questionable death sentence from the drink, exposing either an inherent bias on the court, some poorly written law, or possibly both.
Judge Cathy Cochran, in a concurring opinion, said she voted thusly knowing that Thomas "has a severe mental illness. He suffers from psychotic delusions and perhaps from schizophrenia." (Duh ... d'ya think?! He hears voices, plucked his own eyes out, and ate one.)
Bottom line: The trial court and the Court of Criminal Appeals accepted the prosecution's argument that, although Thomas "was psychotic when he committed the offense, ... his psychosis was triggered by his substance abuse in the preceding days and weeks." So he was psychotic, but it was his fault. Still, how can the court just assume Thomas' substance abuse wasn't a symptom of his mental illness - a form of self-medication, perhaps? Which came first, the chicken or the egg?
Judges on the Court of Criminal Appeals believe they can tell: "Applicant is clearly 'crazy,' but he is also 'sane' under Texas law," wrote Judge Cochran. If that's true, what does that Orwellian distinction tell you about Texas' law?
RELATED: See Dr. Lucy Puryear's excellent discussion of the issues at Women in Crime Ink.
What that tells me is that we're confronting a bad law if it's so constricting the state's highest criminal court doesn't have leeway to deliver justice in cases where the defendant's criminal behavior is clearly driven by mental illness. It's just ridiculous to send somebody who's so obviously nuts to death row - what's the moral point of killing a guy who'd mutilate himself to death if you let him? What's the insanity defense for if not cases like this one?
These are deep, murky waters the court has waded into to fish out yet another questionable death sentence from the drink, exposing either an inherent bias on the court, some poorly written law, or possibly both.
Judge Cathy Cochran, in a concurring opinion, said she voted thusly knowing that Thomas "has a severe mental illness. He suffers from psychotic delusions and perhaps from schizophrenia." (Duh ... d'ya think?! He hears voices, plucked his own eyes out, and ate one.)
Bottom line: The trial court and the Court of Criminal Appeals accepted the prosecution's argument that, although Thomas "was psychotic when he committed the offense, ... his psychosis was triggered by his substance abuse in the preceding days and weeks." So he was psychotic, but it was his fault. Still, how can the court just assume Thomas' substance abuse wasn't a symptom of his mental illness - a form of self-medication, perhaps? Which came first, the chicken or the egg?
Judges on the Court of Criminal Appeals believe they can tell: "Applicant is clearly 'crazy,' but he is also 'sane' under Texas law," wrote Judge Cochran. If that's true, what does that Orwellian distinction tell you about Texas' law?
RELATED: See Dr. Lucy Puryear's excellent discussion of the issues at Women in Crime Ink.
Juvie prosecutor: Felony graffiti rap a "cop out by schools and police"
Regular readers won't be surprised to learn that I completely agree with Murray from Life at the Harris County Criminal Justice Center in offering:
Major kudos today for [Harris County District Attorney] Juvenile Division Chief Bill Moore for saying what plenty of Defense Attorneys and Prosecutors have been thinking and saying for a long time.The whole post is well worth a read, particularly in the wake of hearings at the Lege this week over several bills boosting penalties for graffiti.
In a report on KHOU, Moore addressed the felony criminalization of "graffiti" by referring to it as a "cop out by schools and police" who seem more than willing to saddle a school aged kid with a felony conviction for doodling on their desk or a bathroom wall.
While Bill is just addressing the graffiti element of crimes that occur in school, I think he has identified the tip of the iceberg when it comes to the handling of kids and the things that they do in schools today. I don't think that it is any stretch of the imagination to say that things that you and I would have gotten swats on the rear end for when we are in school are now things that get kids involved in the Juvenile Justice System.
And the bottom line is that it has become beyond absurd.
Coverage of American Violet premier
Speaking of informants, the feature film American Violet - which fictionally portrays a Texas case involving false allegations by an unreliable, unstable informant and the effects on an innocent accused - premiered last night in Hearne before opening nationwide in April. See coverage from:
Along with the Tulia case, the informant scandal in Hearne led directly to legislation in Texas passed in 2001 requiring corroboration for informants in undercover drug stings. See the movie poster below:
- The Houston Chronicle
- The Bryan College Station Eagle
- The Waco Tribune-Herald
- The Baylor Lariat
- Baylor Law School press release
Along with the Tulia case, the informant scandal in Hearne led directly to legislation in Texas passed in 2001 requiring corroboration for informants in undercover drug stings. See the movie poster below:
Florida bill would give informants legal counsel
As Texas considers bills to corroborate and ensure reliability of jailhouse informant testimony, I was interested to see that bipartisan legislation moving in Florida takes a different tack on regulating confidential informants. Reports AP:
The proposed bill would create strict standards on the use of confidential informants and give them the right to talk to an attorney before agreeing to help police.
It would not allow people in drug treatment programs to be used in undercover drug operations.
Plus, the plan would prevent a nonviolent offender from being involved in any undercover operation involving weapons or suspects with violent criminal records.
The actual Florida legislation - HB 271/SB 604 - is sponsored by Republicans in both chambers but has bipartisan support. See the original filed version and the negotiated substitute bill that cleared committee. Among provisions dropped at the demand of law enforcement was a requirement for "prosecutors to approve the use of an informant."
Even so, the negotiated version is still much stronger than Texas' law, including a requirement that potential informants have "an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a C.I." The Florida bill also includes expanded internal reporting and supervisory requirements when informants are used and requires each law enforcement agency to develop policies conforming to the law.
Interesting to see how other states are confronting these issues. Though Texas' informant-related bills in 2009 focus on jailhouse snitches, one need look no further than popular culture - evidenced by the forthcoming silver-screen depiction of snitch-based false drug convictions in Hearne - to know that Texas faces similar problems to those that inspired Florida's legislation with informants caught up in the drug war.
Innocence News and Notes
On the Innocence Project of Texas' blog the executive director published a letter I sent to the board and IPOT supporters in my role as the group's policy director describing innocence-related legislation proposed in the 81st Texas Leglature - not a comprehensive list, but hitting the high points.
On Thursday and Friday in Austin at the UT School of Law, the Institute for Litigtion Studies will hold a continuing legal education event titled, "Actual Innocence: Establishing Innocence or Guilt." I'll be heading to Houston on Friday for the (unfortunately conflicting) conference of the national Innocence Network, so I won't be able to attend. The Court of Criminal Appeals' Criminal Justice Integrity Unit will hold its next meeting at the Austin event and the CJIU's recent report (doc) is published on the ILS website.
Finally, Robert Wilonsky at the Dallas Observer has a preview of a new documentary, Dallas DNA, airing on Investigation Discovery in April, pointing to the press site and this trailer:
On Thursday and Friday in Austin at the UT School of Law, the Institute for Litigtion Studies will hold a continuing legal education event titled, "Actual Innocence: Establishing Innocence or Guilt." I'll be heading to Houston on Friday for the (unfortunately conflicting) conference of the national Innocence Network, so I won't be able to attend. The Court of Criminal Appeals' Criminal Justice Integrity Unit will hold its next meeting at the Austin event and the CJIU's recent report (doc) is published on the ILS website.
Finally, Robert Wilonsky at the Dallas Observer has a preview of a new documentary, Dallas DNA, airing on Investigation Discovery in April, pointing to the press site and this trailer:
Tuesday, March 17, 2009
Man bites dog: Williamson DA John Bradley says remove LWOP for juvie capital offenders
Who would have thought?
The first bill up in the Senate Criminal Justice Committee today would eliminate life without parole in capital cases for juveniles, substituting a 40-year minimum.
In a surreal moment, the first speaker was Williamson County DA John Bradley, an avowed death penalty proponent, who testified that he "really supported the bill," declaring that Sen. Juan Hinojosa's SB 839 was a "rational approach" for juveniles, giving them "incentive to behave" while in prison as well as opportunities for "rehabilitation." Someone from the ACLU followed up expressing an essentially similar sentiment.
Only the Harris County District Attorney's office was opposed, seemingly out of habit.
If the DAs are split and nobody else opposes the bill, this legislation could have a decent chance of passing this year.
UPDATE: This bill was passed out of committee on March 18 and recommended for the local and uncontested calendar.
The first bill up in the Senate Criminal Justice Committee today would eliminate life without parole in capital cases for juveniles, substituting a 40-year minimum.
In a surreal moment, the first speaker was Williamson County DA John Bradley, an avowed death penalty proponent, who testified that he "really supported the bill," declaring that Sen. Juan Hinojosa's SB 839 was a "rational approach" for juveniles, giving them "incentive to behave" while in prison as well as opportunities for "rehabilitation." Someone from the ACLU followed up expressing an essentially similar sentiment.
Only the Harris County District Attorney's office was opposed, seemingly out of habit.
If the DAs are split and nobody else opposes the bill, this legislation could have a decent chance of passing this year.
UPDATE: This bill was passed out of committee on March 18 and recommended for the local and uncontested calendar.
Pretrial mediation bill implements restorative justice concepts
Given this blog's interest in the "restorative justice" movement, I'm pleased to see HB 2139 by McLendon on Thursday's House Corrections Committee agenda, "relating to the establishment, operation, and funding of pretrial victim-offender mediation programs."
A restorative justice approach focuses on meeting victims' needs instead of indulging the punitive populist impulse, which exactly describes this bill's focus.
HB 2139 would allow counties or municipalities to utilize "pretrial mediation" between offenders and crime victims instead of prosecuting low-level crimes. The system could only be used in state jail felony cases and lower where the defendant has no prior convictions. Participation would require consent by both the crime victim and defendant, who as part of a mediation agreement would have to apologize to the victim and pay restitution or perform community service, as well as pay related court costs.
Charges would be dismissed if the defendant successfully completes the terms of the mediation agreement. The whole arrangement sounds similar to successful programs I've heard described from South Australia, particularly in juvenile courts.
What an excellent suggestion! And since it's voluntary, counties that don't want to implement such programs needn't do so. Good bill.
A restorative justice approach focuses on meeting victims' needs instead of indulging the punitive populist impulse, which exactly describes this bill's focus.
HB 2139 would allow counties or municipalities to utilize "pretrial mediation" between offenders and crime victims instead of prosecuting low-level crimes. The system could only be used in state jail felony cases and lower where the defendant has no prior convictions. Participation would require consent by both the crime victim and defendant, who as part of a mediation agreement would have to apologize to the victim and pay restitution or perform community service, as well as pay related court costs.
Charges would be dismissed if the defendant successfully completes the terms of the mediation agreement. The whole arrangement sounds similar to successful programs I've heard described from South Australia, particularly in juvenile courts.
What an excellent suggestion! And since it's voluntary, counties that don't want to implement such programs needn't do so. Good bill.
Hot-button bills highlight first Senate Criminal Justice hearing
The Senate Criminal Justice Committee has a full plate today at its first meeting of the 81st Texas Legislature. Here's a brief description of bills that are up, including several sure to generate controversy:
Pardon me
Royce West has a bill (SB 233) that would allow people with deferred adjudication to receive gubernatorial pardons, though this Governor's miserly use of his pardon power makes one skeptical this would have wide application.
I want your blood
SB 261 by Robert Deuell would expand authority of police to coerce blood draws of DWI suspects when someone is taken to the hospital after an accident.
Enhancements going to the dogs
SB 554 by Chairman John Whitmire would expand the definition of dog fighting crimes to include possession of dog fighting equipment with intent to use it as such.
Government wants more DNA
SB 727 by Dan Patrick would massively expand the number of Texans in the federal DNA database to include all adults on probation, all youth sent to TYC, and all juveniles convicted of felonies. That's a huge expansion from the 400,000 or so Texans in the database now. The debate here is whether potential abuses down the line from the government keeping tabs on DNA from millions of its citizens is worth the public safety bang for the buck, or should the database only include violent and sexual offenders? DNA evidence only exists in fewer than 10% of violent crimes and usually it's matched to a known suspect, not through the federal database. Of particular concern: There are no provisions in the bill for how people, especially juveniles, can have their DNA removed from the database.
Is that a gun in your truck or are you happy to see me?
SB 730 by Glenn Hegar would allow Texans with concealed carry permits to leave their firearm in a locked, personal vehicle while they're at work. My question: Since non-concealed carry permit holders are legally allowed to carry a gun in their personal vehicle, why does the bill exclude them?
Rethinking LWOP for juvie killers
SB 839 by Juan "Chuy" Hinojosa would eliminate life without parole for juveniles whose cases were transferred to the adult system and make the penalty for juveniles charged with capital crimes "life," making them eligible for parole after serving 40 calendar years without consideration of good time. That seems plenty tuff from a utilitarian, public safety perspective, but you can already hear critics declaring "that's better than the victim got." Since the Supreme Court already eliminated the death penalty for juveniles, though, what the victim got isn't an option. Given that, to me the utilitarian arguments trump and this bill balances the retributivist need for punishment with the insensibility of locking up a juvenile until they die of old age.
You can watch the hearing here at 1:30 p.m. or upon adjournment of the Texas Senate.
Pardon me
Royce West has a bill (SB 233) that would allow people with deferred adjudication to receive gubernatorial pardons, though this Governor's miserly use of his pardon power makes one skeptical this would have wide application.
I want your blood
SB 261 by Robert Deuell would expand authority of police to coerce blood draws of DWI suspects when someone is taken to the hospital after an accident.
Enhancements going to the dogs
SB 554 by Chairman John Whitmire would expand the definition of dog fighting crimes to include possession of dog fighting equipment with intent to use it as such.
Government wants more DNA
SB 727 by Dan Patrick would massively expand the number of Texans in the federal DNA database to include all adults on probation, all youth sent to TYC, and all juveniles convicted of felonies. That's a huge expansion from the 400,000 or so Texans in the database now. The debate here is whether potential abuses down the line from the government keeping tabs on DNA from millions of its citizens is worth the public safety bang for the buck, or should the database only include violent and sexual offenders? DNA evidence only exists in fewer than 10% of violent crimes and usually it's matched to a known suspect, not through the federal database. Of particular concern: There are no provisions in the bill for how people, especially juveniles, can have their DNA removed from the database.
Is that a gun in your truck or are you happy to see me?
SB 730 by Glenn Hegar would allow Texans with concealed carry permits to leave their firearm in a locked, personal vehicle while they're at work. My question: Since non-concealed carry permit holders are legally allowed to carry a gun in their personal vehicle, why does the bill exclude them?
Rethinking LWOP for juvie killers
SB 839 by Juan "Chuy" Hinojosa would eliminate life without parole for juveniles whose cases were transferred to the adult system and make the penalty for juveniles charged with capital crimes "life," making them eligible for parole after serving 40 calendar years without consideration of good time. That seems plenty tuff from a utilitarian, public safety perspective, but you can already hear critics declaring "that's better than the victim got." Since the Supreme Court already eliminated the death penalty for juveniles, though, what the victim got isn't an option. Given that, to me the utilitarian arguments trump and this bill balances the retributivist need for punishment with the insensibility of locking up a juvenile until they die of old age.
You can watch the hearing here at 1:30 p.m. or upon adjournment of the Texas Senate.
Animal House meets Mayberry
AP says "the Montague County Jail was 'Animal House' meets Mayberry," though that may put too comfortable a spin on the situation when allegations include sexual assault against an informant.
See prior Grits coverage:
See prior Grits coverage:
Monday, March 16, 2009
When eyewitnesses are wrong
See two notable recent news items related to the relative unreliability of eyewitness identification:
- 60 Minutes (3/8): Eyewitness: How Accurate is Visual Memory?
Hollywood film focuses on false convictions based on Hearne informant
I just received a press release via email announcing the pending release of a feature film based on an incident in tiny Hearne, TX, just down the road from Bryan-College Station, though it was actually filmed in Louisiana. According to the notice:
The film premiers tomorrow night at St. Mary's Church in Hearne, and though it's a bit last minute, I may try to drive up for the event, if only to see some familiar faces. James Ragland at the Dallas News has a column about the movie, and you can see the trailer here.
Related Grits posts:
On April 17, Samuel Goldwyn Films will release AMERICAN VIOLET, a new film based on true events that occurred in a small Texas town. The film examines how drug laws and enforcement practices target African-Americans, and, how the justice system uses threats and intimidation to steer them towards guilty pleas, regardless of their innocence or the evidence against them. As the film points out, more than 95% of criminal convictions in this country are the result of plea-bargains, not jury trials. While the film is based on a specific case, the story it represents is hardly unique or isolated, and, the film’s release presents an exceptional opportunity to explore how the drug war has become the new Jim Crow.
AMERICAN VIOLET is inspired by the real life story of Regina Kelly, an African-American, single mother of four girls who was arrested in 2000 in a military-style drug raid. The raid resulted in the arrest of nearly 15% of the town’s young black male population for felony cocaine distribution. Kelly was innocent. Her name, along with the names of many others arrested (nearly all African-American), were given to police by a single, highly unreliable informant with personal reasons to antagonize her. Despite Kelly’s innocence, she was urged to plead guilty by her family and even her public defender so that she could return to her children and receive a minimal sentence. A felony conviction, however, would have resulted in the loss of her right to vote and the public assistance programs on which her family depended, not to mention the tainting of her personal reputation and her ability to obtain employment. She chose to maintain her plea of not guilty. The ACLU Drug Law Reform Project came on board to represent her.
In AMERICAN VIOLET, Kelly’s on-screen character is named Dee Roberts (played by newcomer Nicole Beharie) and the ACLU lawyer in the film is played by Tim Blake Nelson. Alfre Woodard, Charles Dutton, Will Patton, Michael O’Keefe and Xzibit also star. The town of Melody and certain other characters and events are fictitious.
Eventually, the charges against Kelly were dropped (as were the charges against most of the others arrested in the same drug raid due to the same informant’s lack of credibility). Yet, she was separated from her children while she was incarcerated, shamed in her small community by being labeled a drug dealer, fired from her job, and had difficulty obtaining employment thereafter; in short, her life was torn apart due to her arrest and her time in jail. Graham Boyd, Director of the ACLU Drug Reform Project represented her in a lawsuit against the county and the District Attorney (among other parties), for damages, which resulted in a settlement.
More importantly, the case resulted in a change in Texas law, whereby now, cases cannot be prosecuted based solely on the claims of a single informant.
This film's subject crosses over into some of my own personal history. Not only did I work with a lot of folks from Hearne to help pass the corroboration legislation for undercover drug informants at the Texas Legislature in 2001, at one point excerpts from this blog were actually submitted as evidence in the civil case.
The film premiers tomorrow night at St. Mary's Church in Hearne, and though it's a bit last minute, I may try to drive up for the event, if only to see some familiar faces. James Ragland at the Dallas News has a column about the movie, and you can see the trailer here.
Related Grits posts:
Few prison guards fired, prosecuted for contraband smuggling
What happens to Texas prison staff caught smuggling contraband into prisons? For the most part, nothing, says a report by the Houston Chronicle ("Illicit goods keep flowing into prisons," March 15):
It appears contraband cases are not being aggressively prosecuted, the Chron reports:
I've written before that "zero tolerance is not a policy." Declaring "zero tolerance" doesn't tell us if an employee will be reprimanded, fired or prosecuted for smuggling contraband - it's just a media soundbite, and one that seems increasingly meaningless the more we learn about how TDCJ actually deals with staff engaged in contraband smuggling.
If Texas prisons weren't so understaffed, maybe TDCJ wouldn't feel the need to keep employees caught smuggling contraband on the payroll just to minimally cover its shifts.
This reminds me that 46 guards last fall were caught smuggling cell phones onto Texas prison units during a lockdown aimed at removing contraband. One wonders what punishments they received after implementation of TDCJ's new "zero tolerance" policy?Texas prisons are a virtual bazaar of prohibited and illicit goods smuggled in by guards and correctional employees who have rarely faced harsh punishment when caught, according to a Houston Chronicle review.
Nearly 300 employees, many lowly paid correctional officers, were reprimanded for possessing prohibited items at 20 prison units with the most pervasive contraband problem between 2003 and 2008, records show.
Of the 263 employees disciplined solely for contraband, about three-fourths (199) were given probation, where they were placed under special scrutiny for specified periods. Thirty-five were fired; 26 received no punishment at all. One of the 263 was criminally prosecuted for the contraband, but served no prison time.
It appears contraband cases are not being aggressively prosecuted, the Chron reports:
Gina DeBottis, head of the prison system’s Special Prosecution Unit, has sought to prosecute 68 prison employees for contraband since 2003, filing more than 90 charges. At least nine cases were dismissed after indictment for various reasons, and grand juries refused charges in three other instances, records show. The rest are pending, she said.Unless those cases are mostly from last fall, that seems like a long time for so many prosecutions to languish.
I've written before that "zero tolerance is not a policy." Declaring "zero tolerance" doesn't tell us if an employee will be reprimanded, fired or prosecuted for smuggling contraband - it's just a media soundbite, and one that seems increasingly meaningless the more we learn about how TDCJ actually deals with staff engaged in contraband smuggling.
If Texas prisons weren't so understaffed, maybe TDCJ wouldn't feel the need to keep employees caught smuggling contraband on the payroll just to minimally cover its shifts.
Sunday, March 15, 2009
Praising Pat Lykos: Critics react well to transparency, humility from DAs
New Harris County District Attorney Pat Lykos has been receiving praise from unlikely quarters, recently, first for changing the office policy to allow defense counsel to receive police offense reports, then for actually apologizing over an egregious mistaken ID case prosecuted by her predecessor. Rick Casey at the Houston Chronicle could scarcely believe that "She not only admitted mistakes, she used the active voice," declaring it a "new era." I'll admit, that is unusual.Like Craig Watkins in Dallas, Lykos has begun her new administration by giving the public two things I think voters were looking for when, as in Dallas, they rejected a candidate from the ancien regime: A DA who would embrace transparency and accept responsibility for mistakes as well as credit for successes.
The defensive, circle-the-wagons reaction to exonerations we've seen from some DAs leaves a bad taste in public palate. Similarly, gamesmanship surrounding discovery by prosecutors in criminal cases leaves the public impression that they'll resort to trickery and deceit to win.
By comparison, take a look at the DA's report on Richardo Rachell's false conviction, which openly criticizes relying on an eyewitness ID without following up to perform DNA tests when the evidence was available to make sure they had the right guy. In addition, the report faulted Rachell's attorney for not requesting DNA testing.
The report concludes, "The wrongful conviction of Ricardo Rachell and the length of his incarceration was the result of a series of unfortunate events, blunders and omissions. There was a cascading, systemwide breakdown." If that's really true, and I think it is, it's impossible to fix the problem without first admitting it exists. That's something Lykos' predecessor seemed constitutionally incapable of doing.
Lykos and Watkins are demonstrating the political viability of reform in the state's two largest counties. When you just flat-out do the right thing, it turns out, even your worst critics will praise you. Hopefully both of them will continue to set a different tone that helps foster a more open and accountable justice system - one capable of learning from its mistakes instead of just covering them up.
Photo via Life at the Harris County Criminal Justice Center
Reining in asset forfeiture abuses
With so many Texas law enforcement agencies having become overly dependent on asset forfeiture income to make ends meet, last Sunday, Howard Witt the Chicago Tribune focused on an example that's almost a caricature of that trend: the East Texas town of Tenaha, where black motorists were allegedly threatened with criminal prosecution if they didn't sign over their property.
After the Texas Senate Criminal Justice Committee examined the problem in an interim study, Chairman John Whitmire last week filed SB 1529 to reform the state's asset forfeiture laws. The bill forbids:
These additions give some much-needed teeth to the asset forfeiture statute since its provisions until now have basically been unenforceable. As Sen. Whitmire told the Chicago Tribune:
See related Grits posts:
After the Texas Senate Criminal Justice Committee examined the problem in an interim study, Chairman John Whitmire last week filed SB 1529 to reform the state's asset forfeiture laws. The bill forbids:
- prosecutors as well as police from requesting or inducing someone to sign a waiver of property rights until after forfeiture proceedings have been initiated in court.
- using forfeiture funds for campaign contributions, alcohol, judicial training, or donations to nonprofits unrelated to public safety.
- a retiring official from spending money (as happened with the Harris County Sheriff) on their way out the door without approval by the commissioners court
These additions give some much-needed teeth to the asset forfeiture statute since its provisions until now have basically been unenforceable. As Sen. Whitmire told the Chicago Tribune:
"The law has gotten away from what was intended, which was to take the profits of a bad guy's crime spree and use it for additional crime-fighting," Whitmire said. "Now it's largely being used to pay police salaries—and it's being abused because you don't even have to be a bad guy to lose your property."Regrettably, the legislation stops short of requiring a criminal conviction before assets may be seized, which would be my preference, but it will at least provide more documentation about seized funds, restrict documented abuses, and create an enforcement provision, erecting new barriers to the kind of shakedowns described in East Texas.
See related Grits posts:
- DA's overreliance on asset forfeiture violates the law
- Take the profit motive out of asset forfeiture
- Senate committee: Asset forfeiture too often a profit-making venture
- Outgoing Sheriff went on forfeiture-backed spending spree
- Asset forfeiture dependent Sheriff views Hwy 77 as 'piggy bank'
- Asset forfeiture funds may get more accountability, money diverted to drug courts
- Levin: Assets seized from criminals shouldn't become political slush fund
- Wichita Falls proves asset forfeiture can't finance drug units
- What's the difference between a pirate and a privateer?
Saturday, March 14, 2009
US Attorney rumors - Texas Southern District
Mary Flood at the Houston Chronicle's Legal Trade blog offers up a list of rumored candidates for the US Attorney for Texas' Southern District based in Houston.
See prior speculation about Texas US Attorney candidates on Grits here and here. The Washington Post this week had a piece on the selection process for US Attorneys, and TChris at Talk Left follows up by pointing to Jeralyn Merritt's 2007 discussion of how US Attorneys get appointed.Those on the rumored short list are:
* ex-prosecutor Eric Reed, who is from South Texas and may have the three Congressmen from the southern section of the district on his side
* ex-prosecutor and ex-state judge John Kyles, who is of counsel at Vinson & Elkins
* ex-prosecutor Susan Strawn, who ran for Texas Court of Criminal Appeals as a Democrat
A fourth may have been tacked on, and that would be:
* Galveston County District Judge Susan Criss, who ran for Texas Supreme Court as a Democrat
Friday, March 13, 2009
Hinojosa: Corroborate jailhouse informants
Sen. Juan "Chuy" Hinojosa filed an excellent innocence-related bill this week at the Texas Legislature, SB 1681, which would require corroboration to obtain a conviction based on testimony from a jailhouse informant.
Currently (besides accomplices), only informants involved in undercover drug stings must have their testimony corroborated in Texas - legislation Hinojosa also carried back in 2001 (then on the House side) in the wake of the Tulia episode and the Dallas "fake drug" scandals.
Jailhouse informants are more common in the most serious cases. A report released in 2004 (pdf) by the Northwestern University School of Law Center on Wrongful Convictions found that, of 111 death-row exonerations since capital punishment was resumed in the 1970s, 51 of the convictions were based at least in part on informants' testimony.
Even corroboration may not be enough to stop jailhouse informants from contributing to false convictions. A "Los Angeles grand jury found that informants often used elaborate strategies to access information about a crime in order to enhance the substance of the confessions they fabricated."
But right now, as Texas' law stands, a conviction can be obtained on the testimony of jailhouse informant alone, and this would at least provide an additional hurdle to false convictions. Corroboration of jailhouse snitches was a key recommendation of the California Commission on the Fair Administration of Justice.
Before the session even began, Sen. Rodney Ellis filed SB 260 which would require pretrial reliability hearings before jailhouse informants could be used. Combined, these two bills would substantially strengthen protections against false convictions caused by mendacious informants.
RELATED: See a resource page on jailhouse informants compiled by The Justice Project.
Currently (besides accomplices), only informants involved in undercover drug stings must have their testimony corroborated in Texas - legislation Hinojosa also carried back in 2001 (then on the House side) in the wake of the Tulia episode and the Dallas "fake drug" scandals.
Jailhouse informants are more common in the most serious cases. A report released in 2004 (pdf) by the Northwestern University School of Law Center on Wrongful Convictions found that, of 111 death-row exonerations since capital punishment was resumed in the 1970s, 51 of the convictions were based at least in part on informants' testimony.
Even corroboration may not be enough to stop jailhouse informants from contributing to false convictions. A "Los Angeles grand jury found that informants often used elaborate strategies to access information about a crime in order to enhance the substance of the confessions they fabricated."
But right now, as Texas' law stands, a conviction can be obtained on the testimony of jailhouse informant alone, and this would at least provide an additional hurdle to false convictions. Corroboration of jailhouse snitches was a key recommendation of the California Commission on the Fair Administration of Justice.
Before the session even began, Sen. Rodney Ellis filed SB 260 which would require pretrial reliability hearings before jailhouse informants could be used. Combined, these two bills would substantially strengthen protections against false convictions caused by mendacious informants.
RELATED: See a resource page on jailhouse informants compiled by The Justice Project.
Kids do less art in school, more in street; Lege reacts with hammer
If the only tool you have is a hammer, the saying goes, then everything looks like a nail. On graffiti, apparently, the only tool the Legislature understands is the hammer, with three bills up in a House Criminal Jurisprudence subcommittee on property crimes Monday all boosting penalties for graffiti (and all backed by Democrats, incidentally).
At this point, graffiti crimes have been enhanced so many times that further penalty increases can only be viewed, IMO, as acts of showmanship rather than statesmanship. Lawmakers want to be seen as doing something about graffiti in reaction to angry constituents, but the only thing anyone ever does is jack up penalties, which has basically done nothing to abate the problem.
One bill by Martinez Fischer focuses on making graffiti offenders pay property owners restitution, which would be fine if the clearance rate for graffiti crimes weren't well below 1%, making the bill essentially irrelevant in the real world for 99+% of people whose property is tagged.
Another by Kent would reduce the amount of damage triggering a Class B misdemeanor from $500 to $300. The fiscal note says there's no significant impact to counties because higher fines will cover the costs, but that's a highly questionable suggestion. Counties must provide indigent counsel, etc., for B misdemeanors, plus greater prosecution and jail costs. A Class C requires no counsel to be appointed, no jail time, and minimal prosecution costs - it's the equivalent of a ticket. So in practice, this will be an unfunded mandate on counties, even if LBB (as usual) claims falsely that it'd be a freebie.
A third bill by Walle would require people put on probation for graffiti crimes to perform community service, which seems like something that's probably already happening anyway. These aren't the only graffiti enhancements being proposed, either, just the ones up on Monday.
While these bills flail with a hammer at the problem (at this point punching holes in the wall instead of pounding a nail), we see a telling item over at the Houston Chronicle's Texas Politics blog which informs us that "Music, fine arts are seeking more respect" at the Legislature, noting that Texas schools have seen the arts de-prioritized to focus on the TAKS test. As a result, Texas experienced "a drop in middle school fine arts participation from 75 percent student participation in 1999 to 66 percent in 2006."
Perhaps relatedly, during this same period in Texas graffiti crimes soared; the amount of graffiti in Austin, for example, increased 400% from 2002 to 2007. So kids are doing less art in school and more out in the streets. But all legislators can think to do is increase punishments, not artistic opportunities.
Maybe it's time for legislators to set down the hammer and pick up a different tool by expanding legal, acceptable opportunities for youth art, both in schools and public spaces?
See related Grits posts:
At this point, graffiti crimes have been enhanced so many times that further penalty increases can only be viewed, IMO, as acts of showmanship rather than statesmanship. Lawmakers want to be seen as doing something about graffiti in reaction to angry constituents, but the only thing anyone ever does is jack up penalties, which has basically done nothing to abate the problem.
One bill by Martinez Fischer focuses on making graffiti offenders pay property owners restitution, which would be fine if the clearance rate for graffiti crimes weren't well below 1%, making the bill essentially irrelevant in the real world for 99+% of people whose property is tagged.
Another by Kent would reduce the amount of damage triggering a Class B misdemeanor from $500 to $300. The fiscal note says there's no significant impact to counties because higher fines will cover the costs, but that's a highly questionable suggestion. Counties must provide indigent counsel, etc., for B misdemeanors, plus greater prosecution and jail costs. A Class C requires no counsel to be appointed, no jail time, and minimal prosecution costs - it's the equivalent of a ticket. So in practice, this will be an unfunded mandate on counties, even if LBB (as usual) claims falsely that it'd be a freebie.
A third bill by Walle would require people put on probation for graffiti crimes to perform community service, which seems like something that's probably already happening anyway. These aren't the only graffiti enhancements being proposed, either, just the ones up on Monday.
While these bills flail with a hammer at the problem (at this point punching holes in the wall instead of pounding a nail), we see a telling item over at the Houston Chronicle's Texas Politics blog which informs us that "Music, fine arts are seeking more respect" at the Legislature, noting that Texas schools have seen the arts de-prioritized to focus on the TAKS test. As a result, Texas experienced "a drop in middle school fine arts participation from 75 percent student participation in 1999 to 66 percent in 2006."
Perhaps relatedly, during this same period in Texas graffiti crimes soared; the amount of graffiti in Austin, for example, increased 400% from 2002 to 2007. So kids are doing less art in school and more out in the streets. But all legislators can think to do is increase punishments, not artistic opportunities.
Maybe it's time for legislators to set down the hammer and pick up a different tool by expanding legal, acceptable opportunities for youth art, both in schools and public spaces?
See related Grits posts:
- Invited graffiti: Solution or enabling for unwanted tags?
- Toward a restorative graffiti policy
- Paint responsibly: Museum offers hands-on graffiti exhibit
- Allowing invited graff best way to reduce unwanted graffiti
- Creating public spaces for invited art adds carrot to stick of banning uninvited graff
- Out of our minds: Isn't felony graffiti overkill for sixth graders?
TDCJ officer lobby day pushed for pay hikes
Yesterday the Texas capitol was filled with grey-uniformed Texas prison guards there for a lobby day sponsored by AFSCME advocating for the 20% raise proposed by the Department of Criminal Justice. See coverage from the Austin Statesman. I chatted with several guards making the rounds who thought the event went well and everyone said they were well-received, but there's a long way to go before we'll know if their raises will make it into the budget.
TDCJ needs the improved pay package to fill more than 2,000 empty guard slots and improve its abysmal officer retention rates. The Senate may still include the raise in its budget, but in the House it's been put on their "wish list."
As far as I'm concerned, Texas either needs to spend what it takes to adequately staff its prisons or incarcerate fewer people. Pick one, or the other - the status quo is untenable.
TDCJ needs the improved pay package to fill more than 2,000 empty guard slots and improve its abysmal officer retention rates. The Senate may still include the raise in its budget, but in the House it's been put on their "wish list."
As far as I'm concerned, Texas either needs to spend what it takes to adequately staff its prisons or incarcerate fewer people. Pick one, or the other - the status quo is untenable.
Thursday, March 12, 2009
Good time, reentry debated today in House corrections
Light blogging from me today, but there are several bills up in the House Corrections Committee today aimed at giving the Department of Criminal Justice more tools to manage its inmate population and facilitating reentry to reduce recidivism among ex-prisoners:
- HB 93 (Terri Hodge) Relating to the restoration of good conduct time forfeited during a term of imprisonment.
- HB 94 (Terri Hodge) Relating to the application of laws awarding credit to an inmate for time between release on and subsequent revocation of parole, mandatory supervision, or conditional pardon.
- HB 1711 (Sylvester Turner) Relating to requiring the Texas Department of Criminal Justice to establish a comprehensive reentry and reintegration plan for offenders released or discharged from a correctional facility.
Fleshing out possible juvie reform plans
The Austin Statesman has coverage ("Lawmakers eyeing Travis' plan for juveniles," March 12) of three suggested reform models proposed for Texas' juvenile justice system that were first discussed on Grits here and here. Reports the Statesman:
Under the concept, only juveniles convicted of serious crimes would be sent to the agency. In return, the state would reimburse the counties for each juvenile who is incarcerated and rehabilitated locally.
Youths would have a stronger network of rehabilitative support closer to home than in one of the agency's remote facilities, said Jeanne Meurer, legal management director for Travis County juvenile probation.
"But being able to do that depends on what a county or community's financial resources are," she said. "That's why many local agencies are excited about the possibility of getting funds from the state to keep their kids at home."
It costs Travis County an average $175 a day, or $63,875 a year per child, to incarcerate and provide rehabilitation services, according to the pilot project proposed by Meurer and Estela Medina, Travis County's chief probation officer. If the child were sent to a Youth Commission institution, it would cost the state an average of $270.49 a day, or $98,729 annually per child, they said.
In the 2005 budget year, Travis County sent 119 juveniles to the agency at a cost to the state of $11.7 million. If the 119 had been kept in Travis County facilities, the cost would have been $7.6 million, Meurer and Medina said.
Under the Travis County proposal, a limit would be placed on the number of offenders each county would be allowed to send to the agency each budget year. In the case of Travis County, local probation officials would cap the number of juveniles sent to the agency each budget year at 10. If the county sent more than 10 in that year, the county would pay the agency the cost of taking on those juveniles.
The Travis County plan calculates that the state would pay the county $7.6 million in 2010 and $8 million in 2011.
The plan is one of several being studied by state Sen. John Whitmire, D-Houston, the chairman of the Criminal Justice Committee and a member of the Senate Finance Committee.
"This is exactly what we had in mind when we passed the reforms two years ago," said Whitmire, an author of the reform bill in 2007.
The concept has been initially embraced by Senate budget writers, who last week cut the Youth Commission's proposed funding significantly so it can be put into local diversion programs paid for through the Texas Juvenile Probation Commission. House budget-writers have not signed on but have initially approved much of what Youth Commission officials requested.
Take a look for yourself at the actual plans discussed in the article from Travis County, Dallas County, and the 22 Southeastern Counties.
Tomorrow (March 13) is bill filing deadline at the Texas Legislature so by the weekend perhaps we'll see some legislation filed implementing these concepts.
Wednesday, March 11, 2009
Why police interrogations should be recorded
For an excellent example of why all police interrogations should be recorded, check out this heartbreaking case of the wrongful conviction of a 12-year old accused of murdering a five year old girl and the herculean efforts required to hold police and prosecutors accountable for egregious misconduct. It really shouldn't be this hard to clear the name of an innocent child.
Sen. Rodney Ellis has filed SB 116 to require recording police interrogations in Texas.
Sen. Rodney Ellis has filed SB 116 to require recording police interrogations in Texas.
Lege to examine Great Eldorado Polygamist Roundup
This is going to be a complete zoo!
Yesterday Rep. Patrick Rose, Chair of the Texas House Human Services Committee, created a subcommittee to analyze the largest child-seizure operation in US history at a polygamist community in West Texas by the state's Department of Family Protective Services (DFPS). Reports the Deseret News:
Rep. Drew Darby's participation on the subcommittee is especially ironic since he was the "real estate attorney who helped create the YFZ Land LLC to purchase the ranch." Later, however, he was a strong supporter of the raid, declaring "I'm so proud of our state for acting in the manner it has acted." Along with state Rep. Harvey Hildebran, he has vowed to file legislation targeting FLDS.
Thankfully, Austin state Rep. Elliot Naishtat will chair the subcommittee, not Darby, so one hopes that means the hearing won't just be a whitewash session.
Nobody claims there weren't any underage marriages among the Fundamentalist Latter Day Saints (FLDS) in Eldorado, but it soon became clear the raid-supporters' goal wasn't to go after specific allegations of abuse but essentially to run the FLDS out of town. At the end of the day, there's little doubt the state's actions created boatloads more "human misery," to use Darby's term, than it prevented.
The problem arose because, rather than go after individuals on specific charges, DFPS essentially kidnapped every child they could lay their hands on, even when they didn't know who their parents were or any specific information about them at all. Indeed, after months of vetting every single household, DFPS now claims to have identified only 12 underage marriages, seven of which, they say, produced children. Some of those, however, occurred many years ago and outside of Texas.
The Third Court of Appeals and the Texas Supreme Court later ruled the agency had acted unlawfully by claiming that the religious beliefs of parents at the YFZ Ranch constituted per se abuse. There certainly are a lot of unanswered questions from the raid and its aftermath:
For starters, why hasn't the hoax phone caller been arrested and charged with a crime for her part in launching this mess? I believe it's because her prosecution would reveal incompetence or misconduct by official actors that the state wants to cover up. I'd love to see Rozita Swinton, the hoaxer herself, actually testify at the hearing, but I seriously doubt that will happen. Ditto for Flora Jessop, the anti-FLDS activist who was in communication with Swinton for several days before the raid.
What really happened at the San Angelo Coliseum after FLDS children were taken away from their mothers? The committee should investigate allegations of abuse and neglect by state workers charged with caring for the children.
Relatedly, will the committee hear from MHMR workers who dealt with the kids after they were separated from their mothers and believed the state subjected FLDS kids to abuse? Here are some of their letters:
DFPS got approval to hire 90 new staff people to handle the FLDS case. Will the agency keep those positions? What's the status of that impromptu expansion?
More importantly, does DFPS have too much authority to seize children without adequately documenting real abuse? It's not just a problem with polygamist households.
Finally, though the Deseret News said the subcommittee would hear from "caseworkers, law enforcement officers and local elected officials," IMO the witness list shouldn't be so limited. There were many ad litem attorneys appointed to represent the kids in this case and I'm hopeful some of them will show up in Austin to tell the story from their perspective.
Let me know in the comments what other questions you think the subcommittee should address and what witnesses they should ask to appear before them.
Yesterday Rep. Patrick Rose, Chair of the Texas House Human Services Committee, created a subcommittee to analyze the largest child-seizure operation in US history at a polygamist community in West Texas by the state's Department of Family Protective Services (DFPS). Reports the Deseret News:
The Great Eldorado Polygamist Roundup, which garnered international media attention, was set off by a hoax phone call alleging child abuse. The state at one point claimed 466 kids were victims of sexual abuse, but almost all of those cases were later dropped.At the start of a hearing of the Texas House Human Services Committee on Tuesday, Rep. Patrick Rose, D-Dripping Springs, announced the formation of the subcommittee.
"The situation in Eldorado over the interim presented real challenges for the department and real challenges for the state," Rose said. "A lot of us have been talking about those issues during the interim."
Rose said the subcommittee will schedule hearings in the coming weeks and would present a final report to the legislative committee, but he did not say what its specific focus would be.
"Those of us who are on the committee … care deeply about what we can learn, what lessons learned from that experience are," he said.
Members of the Subcommittee on Investigations of Abuse and Neglect of Children and Interagency Cooperation will include Rep. Elliott Naishtat, D-Austin; Rep. Ana Hernandez, D-Houston; and Rep. Drew Darby, R-San Angelo.
"Although it is unlikely that we will see an investigation of this size and scope again, it is important that we hear from caseworkers, law enforcement officers and local elected officials to learn how each of these groups and relevant agencies can better cooperate in investigations of abuse and neglect," Naishtat said Tuesday. "It is important that the state learn from this experience to better protect Texas children."
Rep. Drew Darby's participation on the subcommittee is especially ironic since he was the "real estate attorney who helped create the YFZ Land LLC to purchase the ranch." Later, however, he was a strong supporter of the raid, declaring "I'm so proud of our state for acting in the manner it has acted." Along with state Rep. Harvey Hildebran, he has vowed to file legislation targeting FLDS.
Thankfully, Austin state Rep. Elliot Naishtat will chair the subcommittee, not Darby, so one hopes that means the hearing won't just be a whitewash session.
Nobody claims there weren't any underage marriages among the Fundamentalist Latter Day Saints (FLDS) in Eldorado, but it soon became clear the raid-supporters' goal wasn't to go after specific allegations of abuse but essentially to run the FLDS out of town. At the end of the day, there's little doubt the state's actions created boatloads more "human misery," to use Darby's term, than it prevented.
The problem arose because, rather than go after individuals on specific charges, DFPS essentially kidnapped every child they could lay their hands on, even when they didn't know who their parents were or any specific information about them at all. Indeed, after months of vetting every single household, DFPS now claims to have identified only 12 underage marriages, seven of which, they say, produced children. Some of those, however, occurred many years ago and outside of Texas.
The Third Court of Appeals and the Texas Supreme Court later ruled the agency had acted unlawfully by claiming that the religious beliefs of parents at the YFZ Ranch constituted per se abuse. There certainly are a lot of unanswered questions from the raid and its aftermath:
For starters, why hasn't the hoax phone caller been arrested and charged with a crime for her part in launching this mess? I believe it's because her prosecution would reveal incompetence or misconduct by official actors that the state wants to cover up. I'd love to see Rozita Swinton, the hoaxer herself, actually testify at the hearing, but I seriously doubt that will happen. Ditto for Flora Jessop, the anti-FLDS activist who was in communication with Swinton for several days before the raid.
What really happened at the San Angelo Coliseum after FLDS children were taken away from their mothers? The committee should investigate allegations of abuse and neglect by state workers charged with caring for the children.
Relatedly, will the committee hear from MHMR workers who dealt with the kids after they were separated from their mothers and believed the state subjected FLDS kids to abuse? Here are some of their letters:
- "This was a travesty."
- "This situation was a tragedy."
- "It was heartwrenching."
- "Our roles became... confidant and a broker."
- "That is a very good question."
- "Ashamed of being a Texan."
- "I often felt helpless."
- "Vast amounts of hypocrisy."
- "Even to be an observer was difficult."
- "This incident... is not what America or Texas stands for."
- "Even the simplest request was discounted."
DFPS got approval to hire 90 new staff people to handle the FLDS case. Will the agency keep those positions? What's the status of that impromptu expansion?
More importantly, does DFPS have too much authority to seize children without adequately documenting real abuse? It's not just a problem with polygamist households.
Finally, though the Deseret News said the subcommittee would hear from "caseworkers, law enforcement officers and local elected officials," IMO the witness list shouldn't be so limited. There were many ad litem attorneys appointed to represent the kids in this case and I'm hopeful some of them will show up in Austin to tell the story from their perspective.
Let me know in the comments what other questions you think the subcommittee should address and what witnesses they should ask to appear before them.
Tuesday, March 10, 2009
Time to implement written consent at traffic stop searches
Can Texas drivers really refuse "consent" to seach at traffic stops when police officers have the ability to arrest them, even for the most minor traffic violation if they refuse comply? That's the question posed by Rep. Harol Dutton's HB 917, which would require written or recorded consent for searches at traffic stops without a warrant or probable cause.
The bill was up in the House Public Safety Committee yesterday. (See the video here beginning at the 2:43:45 mark.) I've supported this idea for years and think it would be a big improvement over the status quo.
Critics of the legislation were allowed to testify first. A CLEAT lobbyist called the legislation a bill with "evil intent," because he claimed it assumes all officers are intentionally violating the rules. I thought that was a completely bogus argument. You could just as easily say that laws against murder assume all citizens may be murderers. That's obviously not true - such laws are established to handle rogues and outliers, not workaday officers who follow the rules. Rep. Dutton later made the same point.
Also speaking in opposition to the bill, Tom Gaylor of the Texas Municipal Police Association argued that Texas' exclusionary rule could mean inadvertently unrecorded consent might be excluded. However, Rep. Stephen Frost pointed out that in a he-said-she-said situation neither side could definitively prove what happened unless there's a recording or written documentation. In fact, that's the reason the Texas prosecutors association prefers written consent according to their manual on "Traffic Stops."
Surprisingly, Gaylor opined that coercive police tactics have declined since Texas' drug task forces were disbanded! I thought that was a particularly telling admission since Gaylor and TMPA for years opposed efforts to rein in rogue drug task forces. Now he's holding up reforms he earlier opposed as a reason not to implement further good-government bills. I like Tom Gaylor, but I'd find his testimony more credible if he'd supported significant reform legislation on these topics in the past.
Joe Saldaña, a rep from the San Antonio police association was similarly disingenuous. He didn't like the idea that a police officer must inform the driver they had the right to refuse consent. But what's exactly wrong with informing drivers of their constitutional rights?
Dozens of Texas police agencies already require written consent and despite the chicken little rhetoric, the sky didn't fall when they implemented it.
When Austin PD implemented written consent, the number of consent searches declined by 63%. That indicates to me that a lot more Texans would exercise their right to refuse a search if their rights were explained to them.
Dozens of Texas police agencies already require written consent and despite the chicken little rhetoric, the sky didn't fall when they implemented it.
When Austin PD implemented written consent, the number of consent searches declined by 63%. That indicates to me that a lot more Texans would exercise their right to refuse a search if their rights were explained to them.
Saldaña complained that officers with "reasonable suspicion" to search would be inhibited from searching, but that's just false. If an officer identifies "reasonable suspicion" at a traffic stop, they can search already under current law without consent. This proposal only address instances in which they do not have "reasonable suspicion." That claim was a false, obfuscatory argument that has no credible basis in the real world.
Scott Cisco of the Houston Police Department also opposed the bill, claiming written consent might still be contested in court over the issue of "voluntariness." However, there's no doubt a written consent form would put the prosecution in a much stronger position, not a weaker one. Indeed, the prosecutors' association manual on traffic stops said written consent is "preferred" precisely because it avoids swearing matches later in court.
Finally, Matt Simpson of the ACLU of Texas argued audio-video documentation would save a lot of time in court because it would eliminate future claims that consent was coerced, eliminating pretrial hearings that cost the state time and money. He saw nothing wrong with a trade-off that created better evidence while simultaneously informing citizens of their rights. If there's a reduction of consent searches, he said, it would encourage officers to pursue actual crimes instead of merely engaging in fishing expeditions.
In his closing, Dutton emphasized that defense attorneys would find themselves at a major disadvantage in court if a defendant had signed a written consent form, and the prosecution would benefit most. He also pointed out that racial disparities among consent searches were exceptionally high - in some jurisdictions blacks are subjected to consent searches 3-5 times more often than white folks, or even higher.
This is an excellent and much-needed bill, though it was vetoed in 2005 by Governor Perry under pressure from these same prosecutors and police unions. It's still needed, though - the problems that first spawned the proposal certainly have not abated
- Dutton: Require written or recorded searches at traffic stops
- Written consent protects Texans' rights and prosecutors cases
- House vote count on written consent
- 'Strange coalition' backs SB 1195
- NYPD to require written consent for traffic and home searches
- Searching for consent at Texas traffic stops
- Don't mind if I take a look, do ya?
- Police oversearching not all about race
- Austin drivers refuse searches when they know they can
- How often do drivers refuse consent searches?
Eyewitnesses in staged test only 8% accurate
In a test performed by a Lubbock TV station, only 8% of Texas Tech students could correctly identify the perpetrator from a photo array in a staged purse snatching:
The students entered the lecture hall one by one, unaware they were about to become eyewitnesses to a crime. We told them we were there covering a story about what it's like to be law students. We decided it was best not to hire a real bad guy, so we got our news director, Benji Snead, to do the dirty work.We wanted to make this test as bona fide as possible, so we went to visit the professionals. We sat down with investigators with the Lubbock County Sheriff's office to see how they build a suspect lineup and created one for our investigation.
Next it was time for the crime. Our suspect walks into the classroom, steals the purse and flees the room. During the experiment one brave student sitting in the back of the class even grabbed Benji's arm, attempting to catch the purse snatcher. We then asked the class to write down everything they could remember about what went down.
The results showed an outstanding 32 students chose suspect 2, and 20 of them were more than 50% certain. Four students chose suspect 1, three of whom more than 50% sure. Four chose suspect 3, nine students thought it was suspect 4, and eight thought it was suspect 6. And 10 students either couldn't identify the perp or believed he was not in the lineup. As for the actual suspect, only six students chose our news director, suspect 5, and not one of them was more than 50% sure of their answer.
"The interesting thing is number 5, who it ending up being, I said wasn't it for sure. I probably had the best view out of anybody in the classroom," Taylor explains. Even the professor was incorrect, "truthfully he was right next to me and I had no clue which one it was. I thought it was number 6."
So how accurate is eyewitness id? In this case only 8 percent accurate - not good odds when your freedom is at stake.
Monday, March 09, 2009
Should expunction burden fall on defendants when charges fall through?
When police and prosecutors make a mistake and pursue charges against a defendant they cannot prove, should the defendant have to pay out of their own pocket to get the records expunged or should it be the state's responsibility?
That's the crux of the question raised by HB 293 by Rep. Harold Dutton which was heard in a subcommittee hearing of the House Criminal Jurisprudence Committee this morning. (See the video here starting at the 7 min., 30 second mark.) While some significant questions were raised that could result in the bill's alteration, the legislation was relatively well received and the members mostly appeared to support it.
Dutton's bill would require automatic expunction in cases where the defendant was pardoned, acquitted, or the case is dismissed. As mentioned previously, the legislation would also shift the burden to the state to clear the defendant's name when accusations never come to fruition.
I testified for the bill on behalf of the Innocence Project of Texas because so many DNA exonerees have trouble finding jobs, housing, etc., even though they've been cleared by the courts and in many cases received pardons. State and private databases continue to dredge up information about their cases that causes employers and landlords to reject them.
Especially for lesser offenses, the collateral consequences of having bad information in public databases can be more serious, even, than incarceration or other punishments.
Several of Texas' DNA exonerees have told me they must carry newspaper clips about their exoneration to job interviews in order to explain why they still show up as violent felons in state and private databases. But even with that documentation, once their application is submitted, too often some bureaucrat in the Human Resources department will later run a database query that keeps them from getting a job.
The bill's main sticking point, as a functional matter, was whether it should include "dismissals" that occur after a defendant has been given deferred adjudication and successfully completed a community supervision stint. Some prosecutors said that such information should be kept in case the person commits more crimes in the future, but the subcommittee didn't seem exceptionally sympathetic to that complaint.
Rep. Paula Piereson, to her credit, spoke knowledgeably and forcibly about flaws in Texas' deferred adjudication statute, complaining that defendants took such deals because they were told there would be no "conviction" on their record, only to learn years later that employers, landlords and others could still access the information and they were not eligible for the information to be expunged. Piereson declared that Texas should either "do away with deferred adjudication" or allow the records to be expunged, as Rep. Dutton proposed. "Deferred [adjudication] does not work," she opined.
The subcommittee seemed inclined to identify a list of specific offenses - mostly violent crimes, sex crimes, and possibly family violence, to judge by the discussion - where records should not be expunged.
Another prosecutor concern dealt with whether an expunction would harm cases where charges are dismissed with the intent of later refiling them. It seems to me, though, this could be easily addressed by inserting language that requires a prosecutor to declare whether they intend to keep open the option for re-indictment, perhaps establishing a deadline beyond which, if no new charges are filed, the records would be expunged.
Neither of these seemed like insurmountable objections.
The only other significant concern raised about the bill was a lame argument that this would be an unfunded mandate. Of course, DAs have no problem paying to pursue these cases, they just don't want to pay to do right by the defendant after they make a mistake.
In terms of cost, the committee was told that some counties charge a court fee to apply for expunging records - in Harris County, e.g., the fee is $250 - plus the defendant must typically pay an attorney, perhaps somewhere in the range of $1,500 to file the motion with the court.
As drafted, Dutton's bill entirely places the onus on the state to pursue expunction in these cases, including the cost, but there was some discussion of whether a $250 fee to the defendant might overcome the "unfunded mandate" objection. On fairness grounds, I don't particularly like that idea. If the burden of proof in court is on the state to obtain a conviction, it seems only just that the state should be responsible for making the individual whole when they're unable to meet that burden.
If prosecutors have enough manpower to pursue a case, they should be willing to devote the manpower to see it through to the end, win or lose. HB 293 is a terrific bill and, with a few adjustments, I'm hopeful the committee and the Legislature will approve it.
That's the crux of the question raised by HB 293 by Rep. Harold Dutton which was heard in a subcommittee hearing of the House Criminal Jurisprudence Committee this morning. (See the video here starting at the 7 min., 30 second mark.) While some significant questions were raised that could result in the bill's alteration, the legislation was relatively well received and the members mostly appeared to support it.
Dutton's bill would require automatic expunction in cases where the defendant was pardoned, acquitted, or the case is dismissed. As mentioned previously, the legislation would also shift the burden to the state to clear the defendant's name when accusations never come to fruition.
I testified for the bill on behalf of the Innocence Project of Texas because so many DNA exonerees have trouble finding jobs, housing, etc., even though they've been cleared by the courts and in many cases received pardons. State and private databases continue to dredge up information about their cases that causes employers and landlords to reject them.
Especially for lesser offenses, the collateral consequences of having bad information in public databases can be more serious, even, than incarceration or other punishments.
Several of Texas' DNA exonerees have told me they must carry newspaper clips about their exoneration to job interviews in order to explain why they still show up as violent felons in state and private databases. But even with that documentation, once their application is submitted, too often some bureaucrat in the Human Resources department will later run a database query that keeps them from getting a job.
The bill's main sticking point, as a functional matter, was whether it should include "dismissals" that occur after a defendant has been given deferred adjudication and successfully completed a community supervision stint. Some prosecutors said that such information should be kept in case the person commits more crimes in the future, but the subcommittee didn't seem exceptionally sympathetic to that complaint.
Rep. Paula Piereson, to her credit, spoke knowledgeably and forcibly about flaws in Texas' deferred adjudication statute, complaining that defendants took such deals because they were told there would be no "conviction" on their record, only to learn years later that employers, landlords and others could still access the information and they were not eligible for the information to be expunged. Piereson declared that Texas should either "do away with deferred adjudication" or allow the records to be expunged, as Rep. Dutton proposed. "Deferred [adjudication] does not work," she opined.
The subcommittee seemed inclined to identify a list of specific offenses - mostly violent crimes, sex crimes, and possibly family violence, to judge by the discussion - where records should not be expunged.
Another prosecutor concern dealt with whether an expunction would harm cases where charges are dismissed with the intent of later refiling them. It seems to me, though, this could be easily addressed by inserting language that requires a prosecutor to declare whether they intend to keep open the option for re-indictment, perhaps establishing a deadline beyond which, if no new charges are filed, the records would be expunged.
Neither of these seemed like insurmountable objections.
The only other significant concern raised about the bill was a lame argument that this would be an unfunded mandate. Of course, DAs have no problem paying to pursue these cases, they just don't want to pay to do right by the defendant after they make a mistake.
In terms of cost, the committee was told that some counties charge a court fee to apply for expunging records - in Harris County, e.g., the fee is $250 - plus the defendant must typically pay an attorney, perhaps somewhere in the range of $1,500 to file the motion with the court.
As drafted, Dutton's bill entirely places the onus on the state to pursue expunction in these cases, including the cost, but there was some discussion of whether a $250 fee to the defendant might overcome the "unfunded mandate" objection. On fairness grounds, I don't particularly like that idea. If the burden of proof in court is on the state to obtain a conviction, it seems only just that the state should be responsible for making the individual whole when they're unable to meet that burden.
If prosecutors have enough manpower to pursue a case, they should be willing to devote the manpower to see it through to the end, win or lose. HB 293 is a terrific bill and, with a few adjustments, I'm hopeful the committee and the Legislature will approve it.
'Round the blogs
While I'm busy with other business today, check out these fine blogs which all have interesting recent posts on the topics Grits covers:
This is an open thread. Play nice.
This is an open thread. Play nice.
Innocence Commission bill up this morning
I'll be testifying this morning at an 8 a.m. subcommittee meeting of the Texas House Criminal Jurisprudence Committee (live video here) to support legislation by Rep. Ruth McLendon on behalf of the Innocence Project of Texas to create an innocence commission in Texas to identify causes of false convictions and ways to prevent them.
An innocence commission would provide a way to systematically vet the errors that cause false convictions, similar to the way hospitals hold a "morbidity and mortality" conference after someone dies in their care to figure out what went wrong and how to prevent it in the future.
Texas' recent string of DNA exonerations have provided a unique window into the mechanics of false convictions. This bill would create a mechanism for formally identifying sources of error and suggesting ways to reduce their number in the future. Of course, we already know many of these causes - including faulty eyewitness ID procedures, mendacious informants, false confessions, and flawed forensics - but those are only the most prominent examples, hardly an exhaustive list.
I'll also be testifying in support of another bill by Rep. Harold Dutton to provide for expunction of records in cases where the defendant was pardoned, acquitted, or the case is dismissed. Dutton's bill would shift the burden to the state to clear the defendant's name when their accusations are overturned or never come to fruition.
There are several other notable items on the subcommittee agenda as well, including a good open records bill by Dutton that would make grand jury proceedings public records after the panel has disbanded. This would be a key accountability reform for District Attorneys, in particular, allowing the public post facto oversight of an aspect of justice that is at once one of the most critical parts of the process and also the most opaque.
Speaking of Harold Dutton, his bill (discussed here) to require drivers' consent to searches at traffic stops to be either written or recorded will be up in the House Public Safety Committee this afternoon.
UPDATE: See Rep. McLendon's press release about the innocence commission bill
An innocence commission would provide a way to systematically vet the errors that cause false convictions, similar to the way hospitals hold a "morbidity and mortality" conference after someone dies in their care to figure out what went wrong and how to prevent it in the future.
Texas' recent string of DNA exonerations have provided a unique window into the mechanics of false convictions. This bill would create a mechanism for formally identifying sources of error and suggesting ways to reduce their number in the future. Of course, we already know many of these causes - including faulty eyewitness ID procedures, mendacious informants, false confessions, and flawed forensics - but those are only the most prominent examples, hardly an exhaustive list.
I'll also be testifying in support of another bill by Rep. Harold Dutton to provide for expunction of records in cases where the defendant was pardoned, acquitted, or the case is dismissed. Dutton's bill would shift the burden to the state to clear the defendant's name when their accusations are overturned or never come to fruition.
There are several other notable items on the subcommittee agenda as well, including a good open records bill by Dutton that would make grand jury proceedings public records after the panel has disbanded. This would be a key accountability reform for District Attorneys, in particular, allowing the public post facto oversight of an aspect of justice that is at once one of the most critical parts of the process and also the most opaque.
Speaking of Harold Dutton, his bill (discussed here) to require drivers' consent to searches at traffic stops to be either written or recorded will be up in the House Public Safety Committee this afternoon.
UPDATE: See Rep. McLendon's press release about the innocence commission bill
Sunday, March 08, 2009
Drug cartel violence, possibly leadership migrates to US soil
Last month the Governor's homeland security chief told the Legislature that the "command and control" operations of so-called Mexican drug cartels are probably closer to Houston than the border, and a couple of recent Houston Chronicle stories seem to corroborate that claim:
Reported the Chron:
Reported the Chron:
Among the unsolved local killings is the death of Pedro Cardenas Guillen, 36, whose last name is considered trafficking royalty. He was shot in the head and left in a ditch off Madden Road, near Fort Bend County.
His uncle is Osiel Cardenas Guillen, reputed head of the powerful Gulf Cartel. He was extradited from Mexico and awaits trial in Houston on charges of drug trafficking, money laundering and threatening to kill federal agents.
While it's comforting to think of drug cartel murders as something that happen on the other side of the Rio Grande, these stories put the lie to that myth. As I wrote last month, "maybe we shouldn't think of transnational smuggling gangs as 'Mexican' cartels" when those exercising "command and control" and many of their hired gunmen live on the US side of the border.
Texas US Attorney rumors updated
A Democratic attorney friend anonymously forwards me more gossip about possible Texas US Attorney candidates.
I'd wondered why we'd heard no rumors about candidates in Texas' Eastern and Southern District, but apparently, in the Eastern District, at least, there's a reason: "there isn't a Congressional Delegation Committee for EDTX yet because there are no Dem Congressmen in that district."
This lawyer says that Tammy Reno (no relation to Janet), is the likely frontrunner. "She's the #2 in that office now. Formerly of the NDTX office where she prosecuted coyotes and was working on the public corruption cases when she left to go to the EDTX."
The other candidate mentioned in the Eastern District is Judge Bob Wortham of Beaumont, who ironically was US Attorney under Ronald Reagan but later switched parties to run for judge.
The source adds, "because the USA is staying for now (Becky Gregory) I bet the Obama admin doesn't pick this one for a while. As a side note, this may be the only USA dist in the country headed by 2 women -- in the EDTX of all places!"
In the Southern District, the names Susan Strawn (who ran last fall as a Democrat for the Court of Criminal Appeals) and Larry Veleska were mentioned as candidates, but I'm told there are also other possible nominees out there. My source wouldn't handicap the outcome.
In the Northern District, this source said rumors have floated about:
I'd wondered why we'd heard no rumors about candidates in Texas' Eastern and Southern District, but apparently, in the Eastern District, at least, there's a reason: "there isn't a Congressional Delegation Committee for EDTX yet because there are no Dem Congressmen in that district."
This lawyer says that Tammy Reno (no relation to Janet), is the likely frontrunner. "She's the #2 in that office now. Formerly of the NDTX office where she prosecuted coyotes and was working on the public corruption cases when she left to go to the EDTX."
The other candidate mentioned in the Eastern District is Judge Bob Wortham of Beaumont, who ironically was US Attorney under Ronald Reagan but later switched parties to run for judge.
The source adds, "because the USA is staying for now (Becky Gregory) I bet the Obama admin doesn't pick this one for a while. As a side note, this may be the only USA dist in the country headed by 2 women -- in the EDTX of all places!"
In the Southern District, the names Susan Strawn (who ran last fall as a Democrat for the Court of Criminal Appeals) and Larry Veleska were mentioned as candidates, but I'm told there are also other possible nominees out there. My source wouldn't handicap the outcome.
- Terri Moore, Dallas District Attorney Craig Watkins first assistant
- Sarah Saldana, who my source described as "smart and tough and progressive"
- Mike Snipes, an Iraqi war vet, West Point graduate, former AUSA in the Northern District
However, "the word is that Roger Williams has it locked up. No criminal experience at all. Never worked in a US Atty office. But was Ken Molberg's law partner, and is tied into some of the right (i.e. close to Doggett and Eddie Bernice Johnson) trial lawyers." This source has "heard that Roger is a capable administrator," but fears appointing someone with no criminal law experience might harm office morale.
Finally, commenters had suggested several candidates in the running for the Western District slot:
Finally, commenters had suggested several candidates in the running for the Western District slot:
- David Escamilla: Current Travis County Attorney
- Mike McCrum: Former AUSA Chief of Major Crimes and Drug Unit for over 10 years
- Michael Bernard: Current San Antonio City Attorney
- Scott Hendler: Austin-based personal injury lawyer
The comment section, as always, is open for additional rumormongering and discusson of the candidates mentioned.
More guards, more prisons, or fewer prisoners: Bill expanding drug treatment makes third option possible
In the medium run, the Texas Legislature has two options for managing its prison population - build more prisons and increase pay so they can hire sufficient staff, or reduce the number of prisoners so the Department of Criminal Justice can safely guard the inmates it's got.
This week we received mixed signals on the pay front, with the Senate suggesting a 20% pay hike for guards while the House removed pay increases from the budget and put them on their "wish list." The issue won't be decided until the conference committee on the budget.
If pay hikes don't happen, that leaves reducing the inmate population.
The good news on that front is that the Legislative Budget Board projects (see p. 14 of the pdf) that Texas' prison population will decline in fiscal year 2009 for the first time in many, many years. LBB says Texas will incarcerate 2,000 fewer inmates by the beginning of FY 2010, but after that, the prison population will slowly begin to increase again, exceeding capacity by 2013. If that's accurate, the Whitmire/Madden reforms of 2005 and 2007 bought the state a little time, but have only put off the prison overcrowding problem, not eliminated it.
That's one reason why I was glad to see an excellent bipartisan bill filed in the Senate aimed at building on recent years' reforms. SB 1118 boasts five primary authors - Senators Ellis, Carona, Deuell, Hegar, and Whitmire - and would reduce the number of low-level drug offenders cycling in and out of prison. It proposes a substantial shift away from imprisonment for petty drug possession felonies and toward using probation and treatment for those offenses. It's a bit of a complex bill, but here are the highlights:
If approved, for third degree drug felonies (1-4 grams of a controlled substance) and lower, "the judge shall suspend the imposition of the sentence and place the defendant on community supervision," except that the judge "may" send them to prison if they determine by a preponderance of the evidence that:
The bill gives judges plenty of options, including incarceration, for dealing with offenders who won't comply with their probation terms. One goodie for judges whose overcrowded county jails may limit short-term incarceration for probation: The bill authorizes using TDCJ-run "intermediate sanction facilities" for up to 120 days for probation violators. Those state-run are presently only used for parole.
Another interesting twist: After the successful completion of their probation term and a drug treatment program, the defendant may petition the court for dismissal of their charges.
This legislation would affect significant chunk of Texas' drug cases; as noted recently, among Texas' state jail felons incarcerated for drug offenses, 87.3% are in for possession of less than a gram of a controlled substance according to TDCJ, while 58.6% of more serious drug cases were possession-only offenses, not for "distribution."
I'm optimistic about prospects for this legislation, which builds on prior, successful legislative initiatives which demonstrably averted what, not long ago, was a looming, California-style prison overcrowding crisis. Removing small-time drug possession defendants from prison and shifting them to less expensive, more effective treatment programs would help solidify the prison population reduction LBB projects for next year, avoiding billions in costs for more prisons and guards in the budget-strapped years ahead.
This week we received mixed signals on the pay front, with the Senate suggesting a 20% pay hike for guards while the House removed pay increases from the budget and put them on their "wish list." The issue won't be decided until the conference committee on the budget.
If pay hikes don't happen, that leaves reducing the inmate population.
The good news on that front is that the Legislative Budget Board projects (see p. 14 of the pdf) that Texas' prison population will decline in fiscal year 2009 for the first time in many, many years. LBB says Texas will incarcerate 2,000 fewer inmates by the beginning of FY 2010, but after that, the prison population will slowly begin to increase again, exceeding capacity by 2013. If that's accurate, the Whitmire/Madden reforms of 2005 and 2007 bought the state a little time, but have only put off the prison overcrowding problem, not eliminated it.
That's one reason why I was glad to see an excellent bipartisan bill filed in the Senate aimed at building on recent years' reforms. SB 1118 boasts five primary authors - Senators Ellis, Carona, Deuell, Hegar, and Whitmire - and would reduce the number of low-level drug offenders cycling in and out of prison. It proposes a substantial shift away from imprisonment for petty drug possession felonies and toward using probation and treatment for those offenses. It's a bit of a complex bill, but here are the highlights:
If approved, for third degree drug felonies (1-4 grams of a controlled substance) and lower, "the judge shall suspend the imposition of the sentence and place the defendant on community supervision," except that the judge "may" send them to prison if they determine by a preponderance of the evidence that:
- The defendant is a danger to the safety of others,
- The defendant has a prior conviction (excluding drug possession or a violation of the Transportation Code),
- The defendant is convicted in the same proceeding for an additional offense (excluding drug possession or a violation of the Transportation Code), or
- The judge determines after an "evidence-based assessment" that that the defendant is unlikely to benefit from participation in a drug treatment program, and then only if they have been convicted in two or more occasions of drug possession or discharged unsuccessfully from a drug court program.
- treatment in a faith-based program
- outpatient treatment
- halfway house treatment
- narcotic replacement therapy
- drug education or prevention courses, and
- inpatient or residential treatment
The bill gives judges plenty of options, including incarceration, for dealing with offenders who won't comply with their probation terms. One goodie for judges whose overcrowded county jails may limit short-term incarceration for probation: The bill authorizes using TDCJ-run "intermediate sanction facilities" for up to 120 days for probation violators. Those state-run are presently only used for parole.
Another interesting twist: After the successful completion of their probation term and a drug treatment program, the defendant may petition the court for dismissal of their charges.
This legislation would affect significant chunk of Texas' drug cases; as noted recently, among Texas' state jail felons incarcerated for drug offenses, 87.3% are in for possession of less than a gram of a controlled substance according to TDCJ, while 58.6% of more serious drug cases were possession-only offenses, not for "distribution."
I'm optimistic about prospects for this legislation, which builds on prior, successful legislative initiatives which demonstrably averted what, not long ago, was a looming, California-style prison overcrowding crisis. Removing small-time drug possession defendants from prison and shifting them to less expensive, more effective treatment programs would help solidify the prison population reduction LBB projects for next year, avoiding billions in costs for more prisons and guards in the budget-strapped years ahead.
Saturday, March 07, 2009
Covering for Keller: CCA Damage Control Tour 2009
The Texas Court of Criminal Appeals sent one of its senior members around the state this week for an unusual PR blitz, according to the Dallas News editorial board:
If she survives the removal hearing and the Commission only reprimands her, she'll be damaged goods that Democrats will beat on like a piñata until 2012. She'll become the symbolic face of the whole court, to the extent that's not true already.
For those reasons, I'd half-expected Judge Keller to submit her resignation and allow Governor Perry to appoint her replacement, but it's beginning to look like she'll stick it out. There's no accounting for hubris.
Speaking of the state Commission on Judicial Conduct, Chuck Lindell at the Austin Statesman has an interesting piece analyzing what actions were taken by the commission against wayward judges last year, when ten judges were reprimanded publicly and another 26 privately. (There are descriptions of the private reprimands, though, that give enough detail where it would be possible to tell if Judge Keller receives one.) Three judges resigned last year rather than face disciplinary procedures.
RELATED: From Capitol Annex, "Giving Cover to Keller."
UPDATE: See this Dallas News piece in which we learn that a) Judge Cheryl Johnson personally filed a complaint against Keller with the Commission on Judicial Conduct in the Michael Richard case, b) Judge Johnson later had to intervene to ensure the new rules Judge Meyers was bragging on to the press were actually followed when the new general counsel tried to reject another last-minute capital appeal, and c) that general counsel's "predecessor retired under pressure because of his role in the Richard case."
MORE: See NY Times coverage of the case (3/8).
The Texas Court of Criminal Appeals wants to get a message out. And so senior Judge Lawrence E. Meyers embarked on a tour to convey it to major Texas newspapers. Here's the gist of his message: We're not as inept and indifferent as you think we are. Yes, Presiding Judge Sharon Keller decided 18 months ago to shut the court down with a death appeal and execution pending, but we have better procedures now. We even wrote them down. See, here's a printout. No more confusion. No, we don't know exactly happened that fateful night, but we're sure the upcoming hearing on Judge Keller will find out. Until then, don't judge us harshly. OK, then. But it's tougher and tougher to keep an open mind.Judge Meyers insisted to the media his colleague Sharon Keller will stay the course and fight the charges against her, but this seems like a no-win situation for her. It's pretty clear Keller actually did all the things alleged, so if the Judicial Conduct Commission does nothing it will look like favoritism for a GOP muckety muck. If she's removed, she lives out her career in disgrace.
If she survives the removal hearing and the Commission only reprimands her, she'll be damaged goods that Democrats will beat on like a piñata until 2012. She'll become the symbolic face of the whole court, to the extent that's not true already.
For those reasons, I'd half-expected Judge Keller to submit her resignation and allow Governor Perry to appoint her replacement, but it's beginning to look like she'll stick it out. There's no accounting for hubris.
Speaking of the state Commission on Judicial Conduct, Chuck Lindell at the Austin Statesman has an interesting piece analyzing what actions were taken by the commission against wayward judges last year, when ten judges were reprimanded publicly and another 26 privately. (There are descriptions of the private reprimands, though, that give enough detail where it would be possible to tell if Judge Keller receives one.) Three judges resigned last year rather than face disciplinary procedures.
RELATED: From Capitol Annex, "Giving Cover to Keller."
UPDATE: See this Dallas News piece in which we learn that a) Judge Cheryl Johnson personally filed a complaint against Keller with the Commission on Judicial Conduct in the Michael Richard case, b) Judge Johnson later had to intervene to ensure the new rules Judge Meyers was bragging on to the press were actually followed when the new general counsel tried to reject another last-minute capital appeal, and c) that general counsel's "predecessor retired under pressure because of his role in the Richard case."
MORE: See NY Times coverage of the case (3/8).
Friday, March 06, 2009
Details emerging on juvie reforms: Agency merger may be off the table
There's an email making the rounds on county commissioners listservs that includes this striking tidbit from the Texas Association of Urban Counties' Donald Lee:
In a previous item, I'd posted plans suggested by county juvenile probation departments which were passed along by Sen. Whitmire's office about how proposed, new diversion funding might work, but I was inadvertently sent the Travis County plan instead of the one from Dallas, as they'd intended. I apologize for the error.
In any event, little by little, it's becoming possible to piece together what Texas' juvenile justice system might look like, at least in broad outline, if TYC were radically downsized. Now that we've got a copy of the Dallas plan, let's look at a some of its key components. For starters, it includes several assumptions:
That's one of the reasons some juvie probation directors have told me they're hesitant to sign off on accepting these new responsibilities - at the higher rate, they say, they're pretty sure they can make the idea work. At a lower figure, quien sabe? Maybe not. Remember, they've already tried managing these same kids with the resources they've got.
At the per-diem rate suggested in the Dallas document, costs would still range higher than $81,000 per youth per year - a savings over the status quo, to be sure, but still much more than TYC's per-youth cost before the 2007 sex-scandal meltdown.
I like the idea of the county losing funds if they send more youth to TYC than their commitment target. That mechanism would give some teeth to the new reforms and is a particularly clever way to ensure compliance.
On the other hand, the voluntary component and negotiated commitment targets add an element of uncertainty to just how much TYC's population might really be reduced. If many counties choose not to participate or judges send more kids to TYC - decisions which lie entirely outside the Legislature's control - TYC could easily be back during the interim looking for emergency appropriations.
That said, a couple of juvie probation directors I spoke to were supportive of the idea. Les Brown, chief of the Lubbock juvenile probation department (speaking only for himself, he emphasized), said:
Interestingly, I'm told that smaller, rural jurisdictions are more amenable to the idea of managing placements themselves because they have little faith in TYC and feel like, if given enough money, they can deal with the small number of kids they'll be asked to handle. It's some of the larger and mid-sized agencies that are more concerned about the devil in the details.
I've got a few calls still out to other juvenile justice professionals and will write more on this topic when I get more feedback from folks in the know.
Today, Chairman John Whitmire called me to inform me that consolidation of TYC and TJPC will not happen this session. He is working hard to reform the juvenile system to provide counties the option of keeping more kids local instead of sending them to TYC and providing substantial additional funding to counties that do so.If accurate, it's pretty important concession from Sen. Whitmire - to take merging the Youth Commission and the Juvenile Probation Commission off the table. I called the Chairman's committee staff to confirm or refute the rumor, but they were unaware of the conversation.
In a previous item, I'd posted plans suggested by county juvenile probation departments which were passed along by Sen. Whitmire's office about how proposed, new diversion funding might work, but I was inadvertently sent the Travis County plan instead of the one from Dallas, as they'd intended. I apologize for the error.
In any event, little by little, it's becoming possible to piece together what Texas' juvenile justice system might look like, at least in broad outline, if TYC were radically downsized. Now that we've got a copy of the Dallas plan, let's look at a some of its key components. For starters, it includes several assumptions:
- Participation is voluntary
- TYC still exists for serious, persistent offenders
- TYC commitment targets are negotiated with the county
- County is reimbursed by the State at Intensive ($222) Level of Care per diem for difference between commitment target and average commitment total
- County pays State per diem for each youth committed over the target
That's one of the reasons some juvie probation directors have told me they're hesitant to sign off on accepting these new responsibilities - at the higher rate, they say, they're pretty sure they can make the idea work. At a lower figure, quien sabe? Maybe not. Remember, they've already tried managing these same kids with the resources they've got.
At the per-diem rate suggested in the Dallas document, costs would still range higher than $81,000 per youth per year - a savings over the status quo, to be sure, but still much more than TYC's per-youth cost before the 2007 sex-scandal meltdown.
I like the idea of the county losing funds if they send more youth to TYC than their commitment target. That mechanism would give some teeth to the new reforms and is a particularly clever way to ensure compliance.
On the other hand, the voluntary component and negotiated commitment targets add an element of uncertainty to just how much TYC's population might really be reduced. If many counties choose not to participate or judges send more kids to TYC - decisions which lie entirely outside the Legislature's control - TYC could easily be back during the interim looking for emergency appropriations.
That said, a couple of juvie probation directors I spoke to were supportive of the idea. Les Brown, chief of the Lubbock juvenile probation department (speaking only for himself, he emphasized), said:
I do support moving more responsibility to the counties if funding from the Lege comes with it. No doubt counties can place kids in specialized programs (secure/nonsecure) at less cost than TYC. If they're spending $99K per year per student, we can do it much cheaper, hell, maybe 50-75% cheaper than TYC. Rural counties need a good chunk of the money, IMO, because they are the departments who use TYC as a "free placement" while the kid may not need specialized care and programs. As the good Senator says, TYC needs to exist for the worst of the worst and the kid who has been unsuccessful in local programs and several placements. The public needs to be protected from these type kids.Brown also seriously questioned, however, if "the private, for profit, county and non-profit infrastructure currently exist for 1000-1500 additional beds?" In other words, if you tell the counties to manage more youth with serious behavioral problems, as a practical matter are there currently enough beds to handle them? I agree with Les that piece of the puzzle remains a big question mark.
Another way for the Lege to deal with this is to further restrict types of kids (by offense) who may be committed to TYC much like the barring of misdemeanors. Not what I prefer but an alternative.
Interestingly, I'm told that smaller, rural jurisdictions are more amenable to the idea of managing placements themselves because they have little faith in TYC and feel like, if given enough money, they can deal with the small number of kids they'll be asked to handle. It's some of the larger and mid-sized agencies that are more concerned about the devil in the details.
I've got a few calls still out to other juvenile justice professionals and will write more on this topic when I get more feedback from folks in the know.
Tracking good criminal justice legislation
Via email, the Texas Criminal Justice Coalition highlights:
Thanks to TCJC for helping keep track of all the moving parts.
I'd add that there are some good bills up on the House Public Safety Committee agenda Monday afternoon as well, not the least of which is HB 917 by Dutton described here that would require written or recorded consent for searches by police at traffic stops.Seven bills ... scheduled for public hearings next week that, if enacted, will have a positive impact on Texas' criminal justice system. Here is a brief summary ...
House Committee on Criminal Jurisprudence
Committee: House - Criminal Jurisprudence
Subcommittee: Criminal Procedure
Date: Monday, March 9, 2009
Time: 8:00 AM
Room: Reagan Building (JHR) 110 (105 W. 15th Street)
Chair: Rep. Joseph Moody● HB 292 by Dutton, Relating to restoration of certain rights to a criminal defendant.
● HB 293 by Dutton, Relating to automatic expunction of criminal records.
○ TCJC Testimony
● HB 498 by McClendon, Relating to the creation of a commission to investigate and prevent wrongful convictions.
○ TCJC Testimony
● HB 579 by Gutierrez, Relating to certain costs on conviction in certain intoxication and drug cases.
○ TCJC Testimony
● HB 666 by Gutierrez, Relating to certain court costs used to fund drug court programs.
○ TCJC TestimonyRead Full AgendaHouse Committee on Licensing & Administrative Procedures
Committee: Licensing & Administrative Procedures
Time: 8:00 AM
Date: Wednesday, March 11, 2009
Room: E2.016
Chair: Representative Edmund Kuempel
● HB 70 by Guillen, Relating to the issuance of an occupational license to certain applicants with criminal convictions.
○ TCJC Testimony
● HB 963 by Guillen, Relating to a criminal history evaluation letter determining occupational license eligibility.
Thanks to TCJC for helping keep track of all the moving parts.
Hoax video part of salvia testimony; Riddle on hate crimes and hair color
I missed the hearing myself, but Vince at Capitol Annex watched the House Criminal Jurisprudence Committee meeting on Wednesday and offered a couple of provocative reports:
In the first item, Vince makes an excellent catch by identifying that one of the YouTube videos Anderson showed the committee on salvia, "was from a humor site and not actually something from real life." Whoops!
That's a serious blow to the credibility of Rep. Charles "Doc" Anderson's case against salvia, particularly since that the Houston Chronicle said (not knowing it was a hoax) that the humor video was the most "compelling" evidence shown to the committee. (See prior Grits coverage of the bill.)
I'm much less concerned than Vince, though, with Rep. Riddle's comments about hair color and the hate crimes act, finding little reason personally to take offense. But then, I disliked that legislation when it was passed in 2001 and more or less agree with Riddle that "Crime is crime, horrific," and that murders aren't more or less harmful because of motive.
If I am murdered, I am no less dead whatever your reasons for killing me. So even if Riddle's analogy was inartful, IMO she's expressing a valid point about the hate crimes law itself.
That said, Rep. Marc Veasey's bill only asks for a study of the effectiveness of the James Byrd Hate Crimes Act, which, given that it's been in place nearly a decade, is perhaps a good idea. Like it or not, the law already exists. Why not study it to see how its being implemented, what could be done to improve the law if there are problems, and how it's functioning out in the world?
In the first item, Vince makes an excellent catch by identifying that one of the YouTube videos Anderson showed the committee on salvia, "was from a humor site and not actually something from real life." Whoops!
That's a serious blow to the credibility of Rep. Charles "Doc" Anderson's case against salvia, particularly since that the Houston Chronicle said (not knowing it was a hoax) that the humor video was the most "compelling" evidence shown to the committee. (See prior Grits coverage of the bill.)
I'm much less concerned than Vince, though, with Rep. Riddle's comments about hair color and the hate crimes act, finding little reason personally to take offense. But then, I disliked that legislation when it was passed in 2001 and more or less agree with Riddle that "Crime is crime, horrific," and that murders aren't more or less harmful because of motive.
If I am murdered, I am no less dead whatever your reasons for killing me. So even if Riddle's analogy was inartful, IMO she's expressing a valid point about the hate crimes law itself.
That said, Rep. Marc Veasey's bill only asks for a study of the effectiveness of the James Byrd Hate Crimes Act, which, given that it's been in place nearly a decade, is perhaps a good idea. Like it or not, the law already exists. Why not study it to see how its being implemented, what could be done to improve the law if there are problems, and how it's functioning out in the world?
Power relations between police and accused can lead to sexual abuse
A former law enforcement officer from El Paso, now working as mall security in Olympia, WA, stands accused of coercing a pair of teenage girls allegedly caught shoplifting to expose themselves and let him take pictures, reports the Seattle Times ("Teens: Security took topless photos, March 5):
A loss-prevention officer at the J.C. Penney store at the Capital Mall was in jail Wednesday after two girls, ages 17 and 18, accused him of coercing them into exposing their breasts and soliciting them for sex after they were caught shoplifting.
The girls said Michael Anthony Olivas, 35, told them that if they took off their clothes, he wouldn't call police about the shoplifting. They said he then took their photos with his cellphone camera while they were undressed. Olympia Police Lt. Jim Costa said Olivas' cellphone is being processed for evidence at the State Patrol Crime Lab.
Olivas was being held Wednesday at the Thurston County Jail with bail set at $10,000 after Superior Court Judge Gary Tabor found probable cause to order him held on suspicion of one count of unlawful imprisonment with sexual motivation. ...
According to court records:
The girls initially reported to Shelton police that Olivas took them into custody for shoplifting and "threatened and pretended to call the police."
"Olivas took their cellphones and looked through them for 'dirty pictures' and asked them questions about their boyfriends," court papers state. "Olivas coerced them into exposing their nude breasts and semi-clothed groin/buttocks areas to him so he could take pictures with his cellphone to avoid going to jail."
The girls said "they were held by Olivas from 4 p.m. to 7:20 p.m. when they were released."
This behavior reminds me of the Montague County Sheriff in North Texas who caught a young woman with meth and essentially turned her out, forcing her to perform oral sex and act as his snitch to avoid prosecution.
It's also hard not to be reminded of vice cops coercing sex from escort service employees to allow them to remain in business. One study out of Chicago found that 3% of tricks by street prostitutes without pimps were freebies given to police in exchange for protection.
The common theme: officers abusing authority given them to protect the public to instead victimize women for their own gratification. This guy in Washington was an ex-cop, not a current officer, but he was still allegedly using the coercive power of the police state for his own benefit instead of enforcing the law.
How effective are TDCJ shakedowns at finding contraband?
Reacting to this item from the Department of Criminal Justice's Connections newsletter, Duane Stuart at The Back Gate, a prison guards' blog, says that patdowns for guards and new restrictions on food and other items staff can bring onto TDCJ units are little more than security theater:
The Back Gate's View: Ok, good PR, but how are the shakedowns effective when you have that unit's correctional officers shaking down friends and co-workers? How good are the searches? Is it the fox guarding the henhouse? We think TDCJ is merely plugging the hole in the dam by using thier pinky finger. Just a few months after the the phones turned up on death row, guess how many more have been found statewide after the " stringent searches". Your answer.... hundreds. So what has been effective? So give us a break TDCJ. Come clean and correct the issues before it once again hits home.
Thursday, March 05, 2009
House budget writers move prison guard raises to "wish list," Senate cuts 40% from TYC budget
Corrections budgets hit the fan today in both chambers of the Texas Legislature. Reports Mike Ward on the Statesman's legislative blog:
A House budget subcommittee this morning tentatively agreed to drastically downsize a proposed pay-raise package for Texas’ prison guards, and move it from the sure-thing budget to the wish list.
State Rep. Debbie Riddle, R-Tomball, the chairman of the subcommittee, said the panel had little choice but to reduce the requested 20-percent raise package to just 5 percent.
That cut dropped the price tag from around $450 million to $124.8 million.
And because the state’s regular budget is so tight, Riddle’s subcommittee agreed to move the 5-percent raise to the state’s fast-growing “wish list” of items that should be funded, if extra money can be found. Subcommittee members said they will label it an “important, high priority.”
Not too promising, though in the current budget climate perhaps unsurprising. I'm not sure a 5% bump will be enough to overcome TDCJ's staffing shortages. No doubt, this decision to de-prioritize guard raises will be a major topic of discussion at next week's TDCJ employee lobby day, sponsored by AFSCME.
Meanwhile, TYC got an unexpected budget shock this morning in a Senate Finance subcommittee hearing, reports Ward: Citing a need to cut operations costs at the Texas Youth Commission, whose incarcerated population has dropped by almost half in two years, a Senate budget subcommittee moved Wednesday to possibly trim the agency's proposed budget by nearly 40 percent. A youth lockup in Corsicana and half of a juvenile correctional complex in Brownwood could be shuttered under one of four budget-cutting options proposed. An agency proposal to build three new lockups in urban areas would be scuttled.
- Senate backs prison pay hikes, Austin Statesman
Senators discuss closing Corsicana State Home, Corsicana Daily Sun
- Lawmakers want to cut costs at youth prisons, AP
New TYC budget plan unveiled, Austin Statesman
Dutton: Require written or recorded consent for traffic stop searches
On Monday, the Texas House Public Safety Committee will hear a particularly star-crossed piece of legislation by Houston state Rep. Harold Dutton, HB 917, which would require written or recorded consent for police to search personal vehicles at a traffic stops without probable cause.
This is an identical version of a bill that passed 29-2 in the Texas Senate and 96-41 in the House back in 2005 but was inexplicably vetoed by Governor Rick Perry. Since then we've seen numerous situations, most recently in East Texas, where police have abused their search authority.
I've written so much about this same legislation in the past, for now let me simply endorse the bill enthusiastically and link to past, related Grits coverage if you'd like more detail on the subject:
This is an identical version of a bill that passed 29-2 in the Texas Senate and 96-41 in the House back in 2005 but was inexplicably vetoed by Governor Rick Perry. Since then we've seen numerous situations, most recently in East Texas, where police have abused their search authority.
I've written so much about this same legislation in the past, for now let me simply endorse the bill enthusiastically and link to past, related Grits coverage if you'd like more detail on the subject:
- Written consent protects Texans' rights and prosecutors cases
- House vote count on written consent
- 'Strange coalition' backs SB 1195
- NYPD to require written consent for traffic and home searches
- Searching for consent at Texas traffic stops
- Don't mind if I take a look, do ya?
- Police oversearching not all about race
- Austin drivers refuse searches when they know they can
- How often do drivers refuse consent searches?
Heard any good rumors about US Attorney appointments?
I've been wondering lately when the Barack Obama Administration might select its new U.S. Attorney candidates and who they might be. Any readers who've heard rumors in that regard are strongly requested to reveal them in the comments.
Out of Texas' four federal judicial districts, only in the Northern District has the media published names of potential candidates. According to Gromer Jeffers at the Dallas News: "former U.S. assistant attorneys Larry Jarrett, Terri Moore and Mike Snipes, and federal prosecutor Sarah Saldana," along with a relative unknown, Dallas lawyer Roger Williams (not the former GOP Texas Secretary of State) are all presently in the running.
In the Western District, I've heard Travis County Attorney David Escamilla mentioned for the US Attorney slot, an appointment I would personally support. (I've known David since the late '80s when he was the assistant county attorney assigned to respond to a slew of open records requests related to tracking S&L-era related real estate scandals - he was always forthright, forthcoming, professional, and as far as I can tell, just a nice guy.)
On the other hand, I've not heard a peep about possible candidates in the Eastern or Southern Districts, nor of any possible competitors for Escamilla.
According to Jeffers, because Texas' two senators are Republican, Obama bypassed them in picking new US Attorneys and instead handed the task to Democrats in the Texas delegation to the US House of Representatives. Jeffers wrote on Sunday that:
Who is on the short list for these much-coveted US Attorney slots (or for that matter the open federal district judge's post)? If you've heard of other candidates in the running - particularly in the Eastern and Southern Districts - by all means, please let us know in the comments.
Out of Texas' four federal judicial districts, only in the Northern District has the media published names of potential candidates. According to Gromer Jeffers at the Dallas News: "former U.S. assistant attorneys Larry Jarrett, Terri Moore and Mike Snipes, and federal prosecutor Sarah Saldana," along with a relative unknown, Dallas lawyer Roger Williams (not the former GOP Texas Secretary of State) are all presently in the running.
In the Western District, I've heard Travis County Attorney David Escamilla mentioned for the US Attorney slot, an appointment I would personally support. (I've known David since the late '80s when he was the assistant county attorney assigned to respond to a slew of open records requests related to tracking S&L-era related real estate scandals - he was always forthright, forthcoming, professional, and as far as I can tell, just a nice guy.)
On the other hand, I've not heard a peep about possible candidates in the Eastern or Southern Districts, nor of any possible competitors for Escamilla.
According to Jeffers, because Texas' two senators are Republican, Obama bypassed them in picking new US Attorneys and instead handed the task to Democrats in the Texas delegation to the US House of Representatives. Jeffers wrote on Sunday that:
That's an interesting twist - probably the first time in years that group has been in a position to collectively flex any political muscle! I'd mentioned earlier that Obama's first Texas judicial pick will be an "emergency" slot in San Antonio - I wonder if Texas Congressional Democrats will also be picking judicial nominees?Democratic congressional leaders have begun the process of selecting the next U.S. attorney for Texas' Northern District and could notify the White House of their choice to replace Richard Roper in coming days.
"We'll have a meeting [this week], and we might make a decision on what name to send in then," said U.S. Rep. Eddie Bernice Johnson, D-Dallas.
Johnson and U.S. Rep. Chet Edwards, D-Waco, are the only two Democratic representatives in the Northern District, which stretches from Dallas southwest to San Angelo and north to Amarillo.
Austin's Lloyd Doggett, chairman of the Democratic congressional delegation in Texas and Rep. Solomon Ortiz, D-Corpus Christi, are also part of the committee that will recommend a nominee to the president.
Who is on the short list for these much-coveted US Attorney slots (or for that matter the open federal district judge's post)? If you've heard of other candidates in the running - particularly in the Eastern and Southern Districts - by all means, please let us know in the comments.
Wednesday, March 04, 2009
Whitmire supplies more detail on proposed youth prison diversion money
I just spoke with Sen. John Whitmire, chair of the Senate Criminal Justice Commitee, who thought my post titled "The Yo-Yo Effect" was "off base," particularly my pessimism that there wouldn't be enough money for counties to manage the influx of delinquent kids, or that the Lege might reduce its commitment to such services somewhere down the line.Whitmire said the main cause of TYC's high costs are a bloated, central office bureaucracy, not just increased staffing ratios in the field. He also gave me names of several county officials who he said were supportive of changes he's proposing, and I promised to speak to each of them and follow up in future blog posts. None of those individuals were immediately available, but in the meantime, one of his staffers forwarded me a proposal
This is easily the most detailed analysis of a possible alternative system I've run across; the section on grants to counties in the Sunset report was decidedly scant. None of this is final, it was emphasized, but Griffith's suggestions are an example of the types of ideas being discussed behind the scenes.
Whitmire's office also forwarded me a proposal from 22 Southeast Texas probation departments estimating they could eliminate more than half their usual TYC commitments if the state gave them just 73% of the current TYC cost-per-inmate.
If these data are any indication, perhaps I've overestimated how much it would cost counties to manage these youth. Particularly readers in juvenile justice fields, take a look for yourself and see what you think.
There will always be a need for some version of youth prisons in Texas, said Whitmire, to house the "worst of the worst," but he thinks there may be "1,200 or so" at TYC right now who could more efficaciously be handled in local communities. Maybe he's right.
I've got other obligations this afternoon, but I'll post more on this topic after I've spoken with a few more people and had a chance to examine the documents sent over from Sen. Whitmire's office in more detail.
The Yo-Yo Effect: TYC blamed by Lege for costs it was ordered to assume
I don't quite know what to make of a report from Mike Ward at the Austin Statesman that legislators are worried TYC's cost per youth is too high and want them to make cuts. Reacting to a new report from LBB (pdf) on costs at criminal justice agencies, Ward writes ("Texas spends $99k per year to lock up each troubled youth," March 4) that:
The biggest reason TYC costs increased so much per student is precisely that, when the sex abuse scandal broke in 2007, the inmate-to-staff ratio systemwide was at 24-1. In response, the Lege mandated that TYC reduce that ratio to 12-1, but by definition that meant doubling the number of staff per student. So it only stands to reason cost per youth would increase - how could it not? That's what the Lege told TYC to do.
In addition, guarding is not TYC's only responsibility. To remedy existing shortcomings in special education services, for example, the state will have to spend more per youth, not less. Ditto for mental health services. Even if TYC's staffing costs for guards are too high (and I'm not sure that's true if they want to keep the staffing ratio at 12-1), they're still under-resourced in other areas.
Finally, it might be true that these service could be delivered more cheaply "in the communities," as Sen. Whitmire said, but it's also possible such services could be shortchanged or not delivered at all if the responsibility were left to the counties. That would certainly be cheaper, but to the extent the programming is necessary and improves safety (and otherwise, why does the Lege require it?), it wouldn't help rehabilitate youth. After all, most were sent to TYC precisely because county juvenile probation departments couldn't handle them with the resources available.
I don't inherently have a stake in maintaining the status quo at Texas' youth prison system; if they could eliminate TYC tomorrow and successfully replace it with higher quality community-based services run by the counties, I wouldn't shed a tear.
But neither do I harbor any illusion that radical change would be easy or that all counties are currently capable of managing youth that right now are headed to TYC. Plus it's likely counties would be subject to the same budgetary yo-yo effect seen with state youth prisons - ordered to add staff, e.g., then chastised for how much it costs.
Merging TYC with the Juvenile Probation Commission may or may not be a good idea, but it's likely not the case that it would be cheaper or easier to manage - in fact, arguably the opposite will be true.
Even though the Texas Youth Commission's incarcerated population has dropped by almost half in two years, the annual cost of locking up juvenile offenders in Texas has climbed to almost $99,000 per inmate — a 66 percent jump since 2006.
With a tight state budget and a tough economy, legislative leaders say that is too costly, and they are moving to cut spending at the commission. ...
The Youth Commission budget dropped from $314.9 million in 2008 to $237 million in 2009, according to Legislative Budget Board figures. Whitmire and others say it could be reduced further.
"I think we could better deliver a lot of the services, a lot of the programs for these youth, in the communities and not at TYC units," [Sen. John] Whitmire said.
The agency's initial budget request was $249.1 million for 2010 and $253.8 million for 2011. But at a recent meeting, Senate Finance Committee Chairman Steve Ogden, R-Bryan, told Townsend to return with a pared-down version. She said she is in the process of complying.
Although legislative leaders have yet to see the new figures, Senate budget writers are expected to begin discussing their own reductions, perhaps as soon as today — including discussions about possibly closing two additional lockups.
The biggest reason TYC costs increased so much per student is precisely that, when the sex abuse scandal broke in 2007, the inmate-to-staff ratio systemwide was at 24-1. In response, the Lege mandated that TYC reduce that ratio to 12-1, but by definition that meant doubling the number of staff per student. So it only stands to reason cost per youth would increase - how could it not? That's what the Lege told TYC to do.
In addition, guarding is not TYC's only responsibility. To remedy existing shortcomings in special education services, for example, the state will have to spend more per youth, not less. Ditto for mental health services. Even if TYC's staffing costs for guards are too high (and I'm not sure that's true if they want to keep the staffing ratio at 12-1), they're still under-resourced in other areas.
Finally, it might be true that these service could be delivered more cheaply "in the communities," as Sen. Whitmire said, but it's also possible such services could be shortchanged or not delivered at all if the responsibility were left to the counties. That would certainly be cheaper, but to the extent the programming is necessary and improves safety (and otherwise, why does the Lege require it?), it wouldn't help rehabilitate youth. After all, most were sent to TYC precisely because county juvenile probation departments couldn't handle them with the resources available.
I don't inherently have a stake in maintaining the status quo at Texas' youth prison system; if they could eliminate TYC tomorrow and successfully replace it with higher quality community-based services run by the counties, I wouldn't shed a tear.
But neither do I harbor any illusion that radical change would be easy or that all counties are currently capable of managing youth that right now are headed to TYC. Plus it's likely counties would be subject to the same budgetary yo-yo effect seen with state youth prisons - ordered to add staff, e.g., then chastised for how much it costs.
Merging TYC with the Juvenile Probation Commission may or may not be a good idea, but it's likely not the case that it would be cheaper or easier to manage - in fact, arguably the opposite will be true.
Tuesday, March 03, 2009
Reduce number of mentally ill languishing in jail
For an informative discussion of the transportation and disposition of mentally ill people who're detained by police but not charged with any crime, see the discussion of SB 32 at the tail end of the first part of this morning's hearing of the Senate Health and Human Services Committee (video here, runs for about 12 minutes starting at the 1:24:12 mark).
I thought Sen. Zaffirini offered compelling arguments when laying out her bill, which focuses on cases where a mentally ill person is taken into custody by police without being charged with a crime.
Such folks would be taken to jail only if a suitable mental health or medical facility is not available and the nearest facility approved by the local mental health authority is more than 75 miles away. Once taken to jail, they could be detained only up to 12 hours and must kept separate from other prisoners. Finally, the bill would eliminate hogtying and other abusive restraints.
Zaffirini emphasized that most jail suicides happen in the first 24 hours, so getting mentally ill folks who don't need to be there out of jail as quickly as possible helps prevent "decompensation." She also handed out flyers demonstrating some of the hogtying techniques currently in use that she's hoping to ban. Advocacy Inc.'s Beth Mitchell further clarified how the legislation would work for a big, high-volume jail like in Harris County.
An identical bill passed the Senate unanimously in both 2005 and 2007, but died the first time in the House Calendars Committee, then again last session sitting on the General State calendar on the final day for the House to hear Senate bills. (See a House Research Organization bill analysis from 2007.)
So this bill has consistently made it through the Senate and also the committee process in the House; maybe since it's starting out this time on the early side, the 81st Legislature can push it on through to the finish line. Kudos to Sen. Zaffirini for sticking with the idea all these years, and I hope the third time is the charm.
MORE: See written testimony submitted by the Texas Criminal Justice Coalition.
I thought Sen. Zaffirini offered compelling arguments when laying out her bill, which focuses on cases where a mentally ill person is taken into custody by police without being charged with a crime.
Such folks would be taken to jail only if a suitable mental health or medical facility is not available and the nearest facility approved by the local mental health authority is more than 75 miles away. Once taken to jail, they could be detained only up to 12 hours and must kept separate from other prisoners. Finally, the bill would eliminate hogtying and other abusive restraints.
Zaffirini emphasized that most jail suicides happen in the first 24 hours, so getting mentally ill folks who don't need to be there out of jail as quickly as possible helps prevent "decompensation." She also handed out flyers demonstrating some of the hogtying techniques currently in use that she's hoping to ban. Advocacy Inc.'s Beth Mitchell further clarified how the legislation would work for a big, high-volume jail like in Harris County.An identical bill passed the Senate unanimously in both 2005 and 2007, but died the first time in the House Calendars Committee, then again last session sitting on the General State calendar on the final day for the House to hear Senate bills. (See a House Research Organization bill analysis from 2007.)
So this bill has consistently made it through the Senate and also the committee process in the House; maybe since it's starting out this time on the early side, the 81st Legislature can push it on through to the finish line. Kudos to Sen. Zaffirini for sticking with the idea all these years, and I hope the third time is the charm.
MORE: See written testimony submitted by the Texas Criminal Justice Coalition.
Who's watching what criminal justice bills at the Texas Lege?
I'd pointed yesterday to a list of reform bills supported by the Texas Criminal Justice Coalition, and was reminded in the comments that I should be sure to point out the online bill lists of items supported and opposed by other criminal-justice related organizations:
- Texas District and County Attorneys Association (TDCAA): See their legislative page and their list of key bills to watch.
- Texas Municipal Police Association(TMPA): See their Feb. 19 bill tracking report.
- Combined Law Enforcement Associations of Texas(CLEAT): See their supported bills, bills they oppose, and their "watch list."
- At the Texas Association of Counties (TAC), scroll down on their legislative page to see a list of bills they're watching on various topics of interest to counties, including "Sheriffs," "Constables," "District Clerks," and "Attorneys" (Incidentally, my grandfather, long-time Dallam County Judge W.D. Henson, was one of the founders and the first president of TAC, way back when I was a young pup.)
- The Texas Police Chiefs Association restricts viewership of its legislative agenda to a members only section of their website.
- The Sheriff's Association of Texas has no reference to legislation at all on the public portion of its website; neither does the Texas Criminal Defense Lawyers Association.
- Here's the legislative agenda for the Texas Association Against Sexual Assault (TAASA).
- ACLU of Texas: Scroll down on their Legislative page to see ACLUTX's "bill book" of items they're focused on this session.
Will 2009 be the year Texas approves needle exchange? Senate committee to hear syringe access bill today
Maybe this will be the year when Texas legislators finally get the point.
This morning, the Senate Health and Human Services Committee will hear SB 188 by Senators Robert Deuell and Leticia Van de Putte authorizing local governments in Texas to operate needle exchange programs if they choose to do so to prevent the spread of disease, particularly HIV and Hepatitis.
We can be pretty sure the legislation has the votes to pass the Senate: Eight of the nine Health and Human Services committee members voted for the bill on the Senate floor in 2007, when twelve Republicans joined 11 Democrats on a final vote of 23-8 to approve the same legislation. What's more, Sen. Kim Brimer, an opponent of the bill, was replaced by Democrat Wendy Davis, whittling the number of known Senate opponents down to seven: Not enough under the 2/3 rule to block the bill.
Though it's still early in the process, it looks like 2009 may finally be the year for needle exchange to pass in Texas - the only state in the union that doesn't allow their operation. Its chief opponent in the House, Rep. Diane Delisi, retired last year and the Public Health Committee she chaired is now run by Rep. Lois Kolkhorst, who was absent for a vote onwho voted for a pilot needle exchange program in 2007. Delisi simply refused to allow a vote on the bill in her committee, though by all accounts a majority supported it, just as most members voted for a floor amendment to other legislation authorizing an ill-fated pilot program in San Antonio.
As somebody who's supported this legislation since Rep. Glen Maxey first carried a version of it in the early '90s, I'm enthused to see the idea finally has real momentum. The costs of HIV are too high to do nothing, and needle exchange programs do a good job of reducing both disease and overall cost. Cross your fingers.
UPDATE (1:40 p.m.): Good news! This legislation was heard this afternoon with no opposition soon after the Senate adjourned, then passed out of committee on a prompt, 5-1 vote.
Sen. Deuell cited a study by the Department of State Health Services estimating that needle exchange would prevent 100 new HIV infections per year at an average savings to the state in indigent health care costs of $385,000 per case. Sen. Robert Nichols, whose Republican district neighbors Sen. Deuell's in East Texas, noted that despite a "neutral" fiscal note from the Legislative Budget Board, SB 188 would likely save the state "millions" because of averted indigent health care costs. I was glad to hear that argument made.
A good and positive start, but only the first step of a hard slog. Congrats to the bill sponsors and supporters on a successful hearing.
Related: From Sifting the Haystack, see Harris County officials discuss syringe access legislation. MORE: See STH's coverage of the 3/3 hearing. See also AP's coverage.
See also prior, related Grits posts:
This morning, the Senate Health and Human Services Committee will hear SB 188 by Senators Robert Deuell and Leticia Van de Putte authorizing local governments in Texas to operate needle exchange programs if they choose to do so to prevent the spread of disease, particularly HIV and Hepatitis.
We can be pretty sure the legislation has the votes to pass the Senate: Eight of the nine Health and Human Services committee members voted for the bill on the Senate floor in 2007, when twelve Republicans joined 11 Democrats on a final vote of 23-8 to approve the same legislation. What's more, Sen. Kim Brimer, an opponent of the bill, was replaced by Democrat Wendy Davis, whittling the number of known Senate opponents down to seven: Not enough under the 2/3 rule to block the bill.
Though it's still early in the process, it looks like 2009 may finally be the year for needle exchange to pass in Texas - the only state in the union that doesn't allow their operation. Its chief opponent in the House, Rep. Diane Delisi, retired last year and the Public Health Committee she chaired is now run by Rep. Lois Kolkhorst, who was absent for a vote on
As somebody who's supported this legislation since Rep. Glen Maxey first carried a version of it in the early '90s, I'm enthused to see the idea finally has real momentum. The costs of HIV are too high to do nothing, and needle exchange programs do a good job of reducing both disease and overall cost. Cross your fingers.
UPDATE (1:40 p.m.): Good news! This legislation was heard this afternoon with no opposition soon after the Senate adjourned, then passed out of committee on a prompt, 5-1 vote.
Sen. Deuell cited a study by the Department of State Health Services estimating that needle exchange would prevent 100 new HIV infections per year at an average savings to the state in indigent health care costs of $385,000 per case. Sen. Robert Nichols, whose Republican district neighbors Sen. Deuell's in East Texas, noted that despite a "neutral" fiscal note from the Legislative Budget Board, SB 188 would likely save the state "millions" because of averted indigent health care costs. I was glad to hear that argument made.
A good and positive start, but only the first step of a hard slog. Congrats to the bill sponsors and supporters on a successful hearing.
Related: From Sifting the Haystack, see Harris County officials discuss syringe access legislation. MORE: See STH's coverage of the 3/3 hearing. See also AP's coverage.
See also prior, related Grits posts:
- Good chances for Texas' needle exchange bill next year, but assume nothing
- Needle exchange gets unexpected 2009 boost
- Bully Bexar DA says she didn't pick needle exchange fight (but she did)
- Needle exchange bill pits small government Republicans vs. authoritarian wing
- Texas Senate prescribes voluntary needle exchange
- Wow! Texas House approves pilot needle exchange
- Lone Star Times: Delisi needle exchange stance shows why GOP may lose majority
- Delisi: Research, Smesearch, I don't wanna
- Dr. Deuell prescribes needle exchange legislation
Monday, March 02, 2009
The war on wild sage (salvia): Banning native plants
The reconstituted House Criminal Jurisprudence Committee will hear its first bills of the session on Wednesday (see their agenda), starting off with a short, diverse list of bills headlined by HB 126 (Doc Anderson), which adds to the Controlled Substances list (Penalty Group 3):
Because the drug is so obscure and unlikely to be abused, this arguably is another instance where messages promoting sentence enhancements do more to promote than deter the negative conduct they're targeting. Seeing the drug's effects described, it seems unlikely that salvia would become a popular recreational drug - unless they ban it.
UPDATE: See coverage of the hearing from the Houston Chronicle's Texas Politics Blog, where David Rauf wrote:
Salvia divinorum, unless unharvested and growing in its natural state, meaning all parts of that plant, whether growing or not, the seeds of that plant, an extract from a part of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant, its seeds, or extracts, including Salvinorin A.What is salvia divinorum? A breed of wild sage. My wife says salvia is a staple for Texas gardeners - in fact, we've got some growing in the backyard. It blooms all summer, handles heat and drought, and draws butterflies and hummingbirds, she informs me. But apparently when smoked it will get you (somewhat unpleasantly) high. I wrote in 2007:
I'd not heard of this drug before, but it appears to be a psychoactive plant originally used by Indians in Mexico as part of shamanic religious rituals. But the plant grows naturally in Texas, and after studies in the 1990s identified its hallucinogenic qualities, its use for recreational purposes, said the Senator, has expanded among youth. ...The Houston Press in 2003 did a feature where several staffers tried salvia with friends and reported their experiences. (See more on the salvia debate from the Texas Observer.)
Sen. [Craig] Estes said to Google it, so I did. This source says that Salvia "is not habit-forming, not addictive, and does not present a significant risk to public health or safety," but I'd never heard of it.
Because the drug is so obscure and unlikely to be abused, this arguably is another instance where messages promoting sentence enhancements do more to promote than deter the negative conduct they're targeting. Seeing the drug's effects described, it seems unlikely that salvia would become a popular recreational drug - unless they ban it.
UPDATE: See coverage of the hearing from the Houston Chronicle's Texas Politics Blog, where David Rauf wrote:
HB 126 was left pending because its current language, which would criminalize the entire plant and its seeds, was too broad. Gallego requested that Anderson amend his bill to criminalize only the Salvia extract that can cause hallucinations.
Good bills backed by Texas Criminal Justice Coalition
The Texas Criminal Justice Coalition has posted online a list of good criminal justice bills they're supporting this session, from innocence, to reentry, probation, parole, and drug policy reform. At the end of their three-page list, TCJC added this teaser:
See the rest of the list for other good bills TCJC is supporting.
Coming soon: Identification bill for returning offenders, to be authored by Rep. TurnerThat's a much needed change that jibes nicely with Rep. Turner's HB 1711, which according to TCJC, "Establishes a re-entry and re-integration plan in which individuals released from prison are provided with identification papers, medical prescriptions, job training certificates, housing and structured programs, and referrals to services."
- DPS should comply with the 2005 legislation and accept TDCJ-issued offender identification cards as a “verifiable” proof of identity.
See the rest of the list for other good bills TCJC is supporting.
Pew: One in 22 Texans under control of criminal justice system
The Pew Center on the States just came out with a new report analyzing national incarceration and community supervision statistics, along with an accompanying Texas state fact sheet (pdf).
Bottom line: One in 31 American adults nationally are in prison, jail, on probation or on parole. In Texas, though, the ratio is much higher - one out of 22 adults here are under control of the criminal justice system, Pew calculated.
Texas no longer boasts the nation's top incarceration rate, however. That dubious honor belongs to Georgia. One in 13 Georgians - an astonishing 7.92%, compared to 4.56% in Texas - are in prison, jail, on probation or on parole, says Pew.
Texas' percentage of its population under control of the corrections system ranks 4th nationally behind the Peach State, Idaho, and the District of Columbia, according to Pew.
Bottom line: One in 31 American adults nationally are in prison, jail, on probation or on parole. In Texas, though, the ratio is much higher - one out of 22 adults here are under control of the criminal justice system, Pew calculated.
Texas no longer boasts the nation's top incarceration rate, however. That dubious honor belongs to Georgia. One in 13 Georgians - an astonishing 7.92%, compared to 4.56% in Texas - are in prison, jail, on probation or on parole, says Pew.
Texas' percentage of its population under control of the corrections system ranks 4th nationally behind the Peach State, Idaho, and the District of Columbia, according to Pew.
Senate report: Two-thirds of special ed youth at TYC don't receive services
Here's a second installment analyzing some highlights from the Senate Criminal Justice Committee interim report's second interim charge regarding the Texas Youth Commission, compiled by Grits juvenile justice intern Tara Haelle and edited by yours truly. As always, none of the opinions expressed here in any way represent those of UT, the LBJ School, Ms. Haelle's teacher, nor anybody but the writer and editor.
In all the fuss about whether to abolish TYC and merge it with the Juvenile Probation Commission, official discussions have too often overlooked needed educational reforms, which, happily, is something the Senate Criminal Justice Committee's Interim Report (pdf) remedies. This emphasis echoes a call last year from the Office of Independent Ombudsman (OIO) to focus on education as a key preventive for recidivism:
The committee report includes charts showing a steady decrease in TYC students’ level gains in math and reading since 2005. Much of this can be attributed to the movement of youth among the facilities and the use of “self-paced” work and punitive measures that prevent the teacher-student interaction that’s essential for effective learning.
The Senate committee report echoed the Ombudsman's conclusions that TYC needs to require better front-end assessment and more funding to meet state and federal regulations on special education. Right now, 40 percent of TYC inmates qualify for special education services, but “more than two thirds of the special education students have no direct service from a special education teacher.” The committee also expressed a desire for more options for vocational programs to aid students in finding a job following re-entry.
The next step, said the Senate committee report, would be developing a curriculum that meets Texas Education Agency standards and is used consistently across all facilities. If there is a standardized scope and sequence all facilities follow, a student doesn’t lose as much progress when moving from one facility to another. Texas ISDs should already be doing this; there’s no reason TYC could not implement a similar system. The same goes for setting a specific daily schedule for TYC educational programs.
If the agency could accomplish all this — and to succeed, TYC would require funding for increased educational staffing and professional development — it'd put youth on a better educational track when they get out (as nearly all, eventually will) and hopefully a better track for life.
* * *
In all the fuss about whether to abolish TYC and merge it with the Juvenile Probation Commission, official discussions have too often overlooked needed educational reforms, which, happily, is something the Senate Criminal Justice Committee's Interim Report (pdf) remedies. This emphasis echoes a call last year from the Office of Independent Ombudsman (OIO) to focus on education as a key preventive for recidivism:
“Education and the associated attainment of diplomas, equivalency degrees, and certifications provide the most powerful and evidence‐based approach to improve outcomes for incarcerated youth and to reduce recidivism. Conversely, success in education and work are two of the strongest protective factors for delinquent youth. Conversely, success in education and work are two of the strongest protective factors for delinquent youth…“Agency officials, expert consultant Dr. Michael Kresmien [author of the OIO report], and the Chief Ombudsman met with Senator Florence Shapiro, Chairwoman of the Senate Education Committee, to discuss legislative solutions to the problem with the education services at TYC that were identified in the [OIO] report.” (Ed note: Hopefully that means we'll see legislation filed soon on these topics.)
“As a state, Texas should embrace and require a transformation of the education program at the TYC… If we want the youth at TYC to become civically‐responsible taxpayers and citizens, we need to rethink how we educate youth at the TYC. Education continues to be the best option for reducing recidivism by providing youth with post‐release opportunities to find meaningful employment, to pursue a post‐secondary education, or to pursue post‐secondary training in a trade or skill.”
The committee report includes charts showing a steady decrease in TYC students’ level gains in math and reading since 2005. Much of this can be attributed to the movement of youth among the facilities and the use of “self-paced” work and punitive measures that prevent the teacher-student interaction that’s essential for effective learning.
The Senate committee report echoed the Ombudsman's conclusions that TYC needs to require better front-end assessment and more funding to meet state and federal regulations on special education. Right now, 40 percent of TYC inmates qualify for special education services, but “more than two thirds of the special education students have no direct service from a special education teacher.” The committee also expressed a desire for more options for vocational programs to aid students in finding a job following re-entry.
The next step, said the Senate committee report, would be developing a curriculum that meets Texas Education Agency standards and is used consistently across all facilities. If there is a standardized scope and sequence all facilities follow, a student doesn’t lose as much progress when moving from one facility to another. Texas ISDs should already be doing this; there’s no reason TYC could not implement a similar system. The same goes for setting a specific daily schedule for TYC educational programs.
If the agency could accomplish all this — and to succeed, TYC would require funding for increased educational staffing and professional development — it'd put youth on a better educational track when they get out (as nearly all, eventually will) and hopefully a better track for life.
School districts should be required to re-admit ex-TYC youth
Juvie corrections will be back in the spotlight this week with the Corrections Committee on Thursday devoting a day of testimony to Texas Youth Commission (TYC), the Juvenile Probation Commission (TJPC), the Office of Independent Ombudsman (OIO) and Sunset proposals for a merger.
Which gives me cause to introduce readers to Tara Haelle, a former schoolteacher who's now a grad student at the LBJ School studying juvie corrections this semester and who's been assigned to Grits as an intern to help supplement this blog's juvie coverage. I'll be editing her work (and sometimes injecting editorial content) as well as incorporating her research into my own writing. Needless to say, none of the opinions expressed here in any way represent those of UT, the LBJ School, her teacher, nor anybody but the writers themselves.
To kick things off, I asked Tara to run through the highlights of the section of the Senate Criminal Justice Committee's interm report (pdf, Interim Charge Two, pp 20-36) regarding TYC juvie corrections, leading off with a discussion of barriers to reentry identified by the committee. Here is an edited version of her first report:
* * *
If youth are to be successful after leaving TYC, the best path is for them to finish high school and eventually get a good job. But according to the interim report from the Senate Committee on Criminal Justice, these things aren’t always happening.
Which gives me cause to introduce readers to Tara Haelle, a former schoolteacher who's now a grad student at the LBJ School studying juvie corrections this semester and who's been assigned to Grits as an intern to help supplement this blog's juvie coverage. I'll be editing her work (and sometimes injecting editorial content) as well as incorporating her research into my own writing. Needless to say, none of the opinions expressed here in any way represent those of UT, the LBJ School, her teacher, nor anybody but the writers themselves.
To kick things off, I asked Tara to run through the highlights of the section of the Senate Criminal Justice Committee's interm report (pdf, Interim Charge Two, pp 20-36) regarding TYC juvie corrections, leading off with a discussion of barriers to reentry identified by the committee. Here is an edited version of her first report:
If youth are to be successful after leaving TYC, the best path is for them to finish high school and eventually get a good job. But according to the interim report from the Senate Committee on Criminal Justice, these things aren’t always happening.
The report describes two major issues with re-entry that legislators ought to address this session: requiring school districts to admit kids released from TYC and tightening confidentiality laws that often keep kids from getting jobs after they’re released.
Key among the “barriers to the successful return to law-abiding behavior” is treatment of TYC kids when they return to regular school districts, the report says. One part of the problem is the reluctance of school districts to take the kids back:
“Some school districts refuse admission of youth when TYC places the youth in a home of a person, not a parent, because the school district considers the placement to be made without a court order.”
The Education Code already requires that public schools admit children placed in foster care by a state agency in their district, but some school districts refuse to recognize TYC’s authority and deny kids admission.
At least one unnamed school district, according to the report, tried to put a TYC youth into an alternative education program for the same offense that sent them to TYC. The law needs to clearly state that students can only be expelled or sent to alternative schools for current behavior — not for so-called "prior adjudicated behavior," i.e., the behavior that got them sent to TYC.
(The Ombudsman is also working on an evaluation of re-entry obstacles with a focus on the educational challenges. Though the report is not ready yet, it will likely provide more depth on some of the reforms necessary to help TYC students’ re-entry process.)
The interim report sensibly says that “to successfully rejoin the community, TYC youth must be given an opportunity to complete their high school education in regular or alternative schools without impediment.” But getting back in school is only one hurdle these kids face. If employers can access their records, it can be an uphill battle to get a good job. The report says:
“Some of this is caused by the increasingly easy access the public has to delinquency and/or criminal offense information on TYC youth. Internet disclosure of this information has been reported as has inappropriate release of this information from DPS employees over the phone. Even though this information is usually restricted to the general public, most employers have access to it and are sometimes reticent to give TYC youth the benefit of the doubt as job applicants.”
These records should be sealed — and so should the lips of state employees. If the state doesn’t make these records harder to leak, and the penalties more severe for leaking them, that’s one more reason kids may end up back at TYC.
It shouldn’t be so tough for a youth released from TYC to get back into regular education classrooms and working at a regular job. And it shouldn’t be so tough for the Legislature to help make that happen.
Ed note: I don't necessarily agree that penalties should be more severe for leaking information so much as I think current restrictions should be more rigorously enforced and DPS systems improved so that such information is only revealed on a need to know basis, not online or over the phone. Otherwise, these are excellent reentry suggestions by the committee.
First bills up in House Public Safety Committee today
The House Public Safety Committee will meet this afternoon and begin to hear legislation for the first time. Here are some highlights from today's short agenda:
Reimburse for police pursuit damages
HB 453 by Gonzalez-Toureilles is a good bill which would authorize funds from auction of abandoned vehicles to be used to compensate people whose property is damaged in a police pursuit.
Candidates need not apply
Myra Crownover has HB 590 up today that would disqualify anyone who's filed a campaign treasurer's statement with the Texas Ethics Commission from appointment to a Crimestopper's Advisory Council. I'm sure there's some specific backstory to this one that will likely come out at the hearing.
Closing public data about public servants
These I don't like so much. HB 120 by Joe Heflin and HB 598 by Hughes remove home address information from drivers license data for peace officers and judges respectively. This is problematic from a public accountability standpoint (as are proposals to remove date of birth information from public records for the same classes of public servants) because addresses and dates of birth are key identifying information to help investigators, reporters, etc., make sure they've identified the right person in the records, particularly when performing background checks or researching public corruption cases that involve personal finances. I'm not aware of incidents where such information has been misused, though perhaps some specific examples will come out at the hearing. But I know for a fact that closing that information makes public integrity investigations more difficult for reporters and interest groups, while achieving IMO little, tangible public safety benefit.
In fact, for judges in particular, I can give an example from my days as a political opposition researcher how that address information can be useful for investigating shady deals. In a Democratic primary race, I was hired to perform a background check on a challenger who, in the town where he'd practiced previously, had gotten in trouble for using his attorney's escrow account to pay for major home improvements - a big ethical no-no since that's the clients' money, not his. This fellow had a very common name, and knowing his address and date of birth was the only way I could have possibly followed the paper trail to uncover those key facts which ultimately knocked him out of the race. Had they not been discovered, there's a real chance this guy could have been taken seriously as a candidate and conceivably been elected to sit as a district judge. We're talking about critical, identifying data, and you need the same baseline information to investigate incumbents as for challengers.
I'm afraid that, with the corporate media weakened and fewer in number, such anti-open records bills will have an easier time of it than just a few years ago when the MSM more aggressively fought for open records at the capitol.
Who will stand up for the merits of transparency? Where is the constituency for openness? We've seen some positive expressions in Washington by the new administration, but right now I'm not sure I see a strong faction at the Texas Legislature, in either party, supporting greater government openness, and that's a little scary.
UPDATE: I forwarded this post to Reps Hughes and Heflin, and Rep Bryan Hughes responded thusly:
Reimburse for police pursuit damages
HB 453 by Gonzalez-Toureilles is a good bill which would authorize funds from auction of abandoned vehicles to be used to compensate people whose property is damaged in a police pursuit.
Candidates need not apply
Myra Crownover has HB 590 up today that would disqualify anyone who's filed a campaign treasurer's statement with the Texas Ethics Commission from appointment to a Crimestopper's Advisory Council. I'm sure there's some specific backstory to this one that will likely come out at the hearing.
Closing public data about public servants
These I don't like so much. HB 120 by Joe Heflin and HB 598 by Hughes remove home address information from drivers license data for peace officers and judges respectively. This is problematic from a public accountability standpoint (as are proposals to remove date of birth information from public records for the same classes of public servants) because addresses and dates of birth are key identifying information to help investigators, reporters, etc., make sure they've identified the right person in the records, particularly when performing background checks or researching public corruption cases that involve personal finances. I'm not aware of incidents where such information has been misused, though perhaps some specific examples will come out at the hearing. But I know for a fact that closing that information makes public integrity investigations more difficult for reporters and interest groups, while achieving IMO little, tangible public safety benefit.
In fact, for judges in particular, I can give an example from my days as a political opposition researcher how that address information can be useful for investigating shady deals. In a Democratic primary race, I was hired to perform a background check on a challenger who, in the town where he'd practiced previously, had gotten in trouble for using his attorney's escrow account to pay for major home improvements - a big ethical no-no since that's the clients' money, not his. This fellow had a very common name, and knowing his address and date of birth was the only way I could have possibly followed the paper trail to uncover those key facts which ultimately knocked him out of the race. Had they not been discovered, there's a real chance this guy could have been taken seriously as a candidate and conceivably been elected to sit as a district judge. We're talking about critical, identifying data, and you need the same baseline information to investigate incumbents as for challengers.
I'm afraid that, with the corporate media weakened and fewer in number, such anti-open records bills will have an easier time of it than just a few years ago when the MSM more aggressively fought for open records at the capitol.
Who will stand up for the merits of transparency? Where is the constituency for openness? We've seen some positive expressions in Washington by the new administration, but right now I'm not sure I see a strong faction at the Texas Legislature, in either party, supporting greater government openness, and that's a little scary.
UPDATE: I forwarded this post to Reps Hughes and Heflin, and Rep Bryan Hughes responded thusly:
Thanks, man. I'm pretty big on open government - but I guess everyone thinks they are.
The judge's family in Chicago killed a few years back got my attention, and there are other news stories of threats federal and state judges and their families.
I suppose my experience with Judge Steger and his concern for his family had an effect on me as well.
I appreciate your point about the background information you picked up on the primary candidate, and I acknowledge that the information might have been otherwise been missed.
But I think to be independent, the judiciary must have a somewhat predictable level of safety.
In the balancing of interests, I am willing to let open government yield here.
I appreciate what you do, and I'm glad you and I agree much more than we differ.
That was a nice note and I appreciate the repesentative taking time to respond. Certainly Hughes and Heflin's bills are borne out of good intentions, and this is a matter on which reasonable people may disagree. But I fear the damage to investigative reporting and restricting tools for background checks on public officials may be a significant unintended consequence that's more serious, in the end, than the problems they're trying to solve.
Sunday, March 01, 2009
Invited graffiti: Solution or enabling for unwanted tags?
I've believed for a while now that municipal graffiti management (and it can only ever be managed, never eliminated) must involve three prongs: 1) Enforcement, with number of arrests more important than length of punishment, 2) Rapid cleanup (at taxpayers' expense, so crime victims aren't punished again by the state), and 3) More invited graffiti in both public and private venues.
Here's a roundup of recent news and blog items focused on that oft-ignored third theme of invited graffiti, which has long been the most underutilized part of that three-pronged approach:
ATX Graffiti has pictures of legal graffiti commissioned for the SXSW music festival on East 5th Street in East Austin. Clearly more talented, prolific graff writers are willing to put up more elaborate, creative work when they know the project will ride for a while. I'll bet it won't get defacd as often as the blank wall, either.
In Corpus Christi, high school students were invited to create graffiti-style spray paint murals at La Retama Park.
A UK community has given a ten-year old girl the run of the town to paint graffiti murals, though when you see her art you can understand why. It's not just her, though; the same town allows a great deal of more elaborate, invited graffiti from quality artists.
From the always wonderful Subtopia, check out invited graffiti on "blast walls" installed by the US military in Baghdad, which makes the landscape more hospitable and also helps prevent subversive, anti-American graffiti.
In San Francisco, anti-graffiti zealots on the city council tried to pass an ordinance "that would define what constitutes a legal mural and where it may be painted." In other words, they think it will reduce the amount of outlaw art if they over-regulate legal, invited and commissioned art, which heretofore, presumably, had not been a significant source of concern. It seems absurd to have to say so, but you can't regulate your way out of a graffiti problem: It's already an illegal activity.
At the NY Times City Room blog, Sewell Chan has an excellent post reviewing a new book by a sociologist who's been studying graffiti for 30 years and believes that, “In its purest form, graffiti is a democratic art form that revels in the American Dream.” He also describes instances where graff writers allied interests with property owners, including one Brooklynite who was "eventually embraced by property owners who saw his style — with large, neat letters, quite separate from the spray-painted bold colors and complicated letter styles that are more common in graffiti — as a useful ornamentation for their storefronts."
Finally, where do we draw the line when defining graffiti? Unwanted spray paint or etching into glass is one thing, but how much can you credibly talk about "property damage" when discussing messages left in chalk on the sidewalk? A Flagstaff, AZ city ordinance treats non-permanent chalking the same as more permanent graffiti.
See prior Grits posts related to invited graffiti:
Here's a roundup of recent news and blog items focused on that oft-ignored third theme of invited graffiti, which has long been the most underutilized part of that three-pronged approach:ATX Graffiti has pictures of legal graffiti commissioned for the SXSW music festival on East 5th Street in East Austin. Clearly more talented, prolific graff writers are willing to put up more elaborate, creative work when they know the project will ride for a while. I'll bet it won't get defacd as often as the blank wall, either.
In Corpus Christi, high school students were invited to create graffiti-style spray paint murals at La Retama Park.
A UK community has given a ten-year old girl the run of the town to paint graffiti murals, though when you see her art you can understand why. It's not just her, though; the same town allows a great deal of more elaborate, invited graffiti from quality artists.From the always wonderful Subtopia, check out invited graffiti on "blast walls" installed by the US military in Baghdad, which makes the landscape more hospitable and also helps prevent subversive, anti-American graffiti.
In San Francisco, anti-graffiti zealots on the city council tried to pass an ordinance "that would define what constitutes a legal mural and where it may be painted." In other words, they think it will reduce the amount of outlaw art if they over-regulate legal, invited and commissioned art, which heretofore, presumably, had not been a significant source of concern. It seems absurd to have to say so, but you can't regulate your way out of a graffiti problem: It's already an illegal activity.
At the NY Times City Room blog, Sewell Chan has an excellent post reviewing a new book by a sociologist who's been studying graffiti for 30 years and believes that, “In its purest form, graffiti is a democratic art form that revels in the American Dream.” He also describes instances where graff writers allied interests with property owners, including one Brooklynite who was "eventually embraced by property owners who saw his style — with large, neat letters, quite separate from the spray-painted bold colors and complicated letter styles that are more common in graffiti — as a useful ornamentation for their storefronts."Finally, where do we draw the line when defining graffiti? Unwanted spray paint or etching into glass is one thing, but how much can you credibly talk about "property damage" when discussing messages left in chalk on the sidewalk? A Flagstaff, AZ city ordinance treats non-permanent chalking the same as more permanent graffiti.
See prior Grits posts related to invited graffiti:
- Toward a restorative graffiti policy
- Paint responsibly: Museum offers hands-on graffiti exhibit
- Creating public spaces for invited art adds carrot to stick of banning uninvited graff
- Mexico prevents graffiti by encouraging it at El Azteca Stadium
- Moscow turns to invited graffiti to liven up Soviet era buildings
- Adidas: Graffiti is legitimate art
- Grading graffiti? What do youth want?
- Digital graffiti, or, Is there something to a wall that wants us to write on it?
- Austin lags on important third component of graffiti policy
Should USDOJ investigate Texas Court of Criminal Appeals' secret pre-vote on unfiled motion?
Rick Casey at the Houston Chronicle adds his own high-powered rumor from the Court of Criminal Appeals, following up on Vince Leibowitz's reporting that some members of the Court want Presiding Judge Sharon Keller to resign before her removal hearing later this month. Casey writes:
According to the formal charges by the Commission on Judicial Conduct, Judge Cathy Cochran at 11:29 a.m. e-mailed to Keller and her other colleagues an Internet link to the Kentucky Supreme Court decision that was being appealed to the U.S. Supreme Court.
The document then says that in “early afternoon” the court’s general counsel, Edward Marty, “began drafting a proposed order for the court in anticipation of Mr. Richard’s appeal based on Baze. The Honorable Judge Tom Price drafted a dissenting opinion in anticipation of Mr. Richard’s appeal and circulated the dissent to the other judges.”
What the document omits is that the judges first took an informal vote. I have it on good authority that the tally was 5-4 to turn down Richard’s appeal.
They made up their minds without waiting for the arguments of Richard’s lawyers.
David Dow, the University of Houston Law Center lawyer who headed Richard’s defense team, called the procedure “outrageous.”
“It’s the equivalent of them sticking their fingers in their ears,” he said. The judges may well have felt confident they could anticipate the arguments, and they didn’t want to wait until late in the day to begin taking up the matter.
Yowza!! Deciding motions before they're filed? Sometimes it seems that way, but it's pretty shocking to see it confirmed. Maybe that explains why, according to Vince's source:
at least one justice is fearful that some or all of the Court of Criminal Appeals Justices could be subject to similar judicial conduct complaints as the one now facing Keller simply because the other justices did nothing to stop Keller and did not more closely examine Keller’s actions
Perhaps the concern isn't that other judges "did nothing," but that they actively participated in a process that a) wasn't recorded in official records and b) may not hold up to public scrutiny if "U.S. Attorney General Eric Holder [were] to launch an investigation into whether or not Michael Richard’s’ civil rights were violated."
Have Liebowitz and Casey between them identified the ball the CCA wants most desperately to hide - that the Court had made its decision on Michael Richard's appeal before seeing his argument? Based solely on Vince's source, I didn't understand why judges might fear a civil rights investigation by the Department of Justice. Perhaps in light of Casey's revelation, though, a DOJ review may warranted. At a minimum, says Casey, it will undermine public confidence to confirm:
that the judges acted a bit like the Queen of Hearts in Alice in Wonderland.
“Let the jury consider their verdict,” the King said, for about the twentieth time that day.
“No, no!” said the Queen. “Sentence first — verdict afterwards.”
This news opens ups a whole new can of worms for the embattled Texas Court of Criminal Appeals. The questions facing it might soon become much bigger than whether their Presiding Judge should resign, be impeached or face removal by the Judicial Conduct Commission.
MORE: Before commenters try to make this about late filings by capital defense attorneys, let me emphasize that last-minute filings in capital cases were and are entirely a function of the court's own rules. When they changed them to require final appeals two days prior to execution, Dow and others complied and did that instead. If new filings on the day of execution are inherently bad, there is no one to blame but the CCA which created the rules and the timeline, then (according to Casey) conspired to ignore and circumvent them.
NUTHER UPDATE (3/3): The Stand Down Project has a good roundup of additional, Keller-related coverage.
What strategies work to keep HIV+ ex-prisoners on their meds?
From the abstract to an article in the Journal of the American Medical Association, we get a bit more information about the shockingly high rates of HIV positive inmates who stop receiving anti-retroviral drugs when they leave prison. Researchers fear such inmates could become the source of drug-resistant HIV strains, which would be a grave outcome indeed.
Reuters reported that just 5.4% of former HIV+ inmates filled their prescriptions after ten days. Only 17.7% had done so within 30 days, and 30.0% after 60 days - still a strikingly low figure with 70% still off their antiretroviral medication two months after they leave prison.
There's a practical, public safety aspect to this that can't be ignored: The creation of drug-resistant HIV would be a very, very bad thing.
On the bright side, the study identified two variables that improve the chances HIV+ ex-prisoners get back on their meds after leaving confinement.
First, according to the abstract "Inmates released on parole were more likely to fill a prescription within 30 days ... and 60 days" by significant margins.
Even higher compliance rates, though, came because: "Inmates who received assistance completing a Texas AIDS Drug Assistance Program application were more likely to fill a prescription within 10 days," 30 days and 60 days. (See "Results" at the bottom of this page for the statistical details.)
In other words, HIV+ inmates on parole were slightly more likely to get their medication, presumably because they're under supervision, but they were much more likely to do so, especially in the short-term, if they're told where they can get help paying for the (quite expensive) drugs.
That makes a lot of sense, and it points to possible legislative solutions.
Perhaps there's some way to leverage stimulus funds designated for law enforcement or health services to go into the (already strapped) AIDS Drug Assistance Program, designating additional money to pay for indigent ex-prisoners to get that compliance rate somewhere closer to 100%? We're talking about a relatively small number of folks - an average of 700 or so people per year; that's a small price to pay for TDCJ to avoid becoming the source of some terrible, new medical scourge.
Once TDCJ has started an HIV+ prisoner on antiretroviral medications, making sure they're signed up to get their meds on the outside seems like as important a public safety function as locking prisoners up in the first place. The same could be said for mentally ill prisoners, for whom I'd like to see a similar study performed. More attention should be paid to that transition.
This is one of those moments when "an ounce of prevention is worth a pound of cure." I could make that argument for quite a few other reentry services, but in this instance it's particularly true.
Reuters reported that just 5.4% of former HIV+ inmates filled their prescriptions after ten days. Only 17.7% had done so within 30 days, and 30.0% after 60 days - still a strikingly low figure with 70% still off their antiretroviral medication two months after they leave prison.
There's a practical, public safety aspect to this that can't be ignored: The creation of drug-resistant HIV would be a very, very bad thing.
On the bright side, the study identified two variables that improve the chances HIV+ ex-prisoners get back on their meds after leaving confinement.
First, according to the abstract "Inmates released on parole were more likely to fill a prescription within 30 days ... and 60 days" by significant margins.
Even higher compliance rates, though, came because: "Inmates who received assistance completing a Texas AIDS Drug Assistance Program application were more likely to fill a prescription within 10 days," 30 days and 60 days. (See "Results" at the bottom of this page for the statistical details.)
In other words, HIV+ inmates on parole were slightly more likely to get their medication, presumably because they're under supervision, but they were much more likely to do so, especially in the short-term, if they're told where they can get help paying for the (quite expensive) drugs.
That makes a lot of sense, and it points to possible legislative solutions.
Perhaps there's some way to leverage stimulus funds designated for law enforcement or health services to go into the (already strapped) AIDS Drug Assistance Program, designating additional money to pay for indigent ex-prisoners to get that compliance rate somewhere closer to 100%? We're talking about a relatively small number of folks - an average of 700 or so people per year; that's a small price to pay for TDCJ to avoid becoming the source of some terrible, new medical scourge.
Once TDCJ has started an HIV+ prisoner on antiretroviral medications, making sure they're signed up to get their meds on the outside seems like as important a public safety function as locking prisoners up in the first place. The same could be said for mentally ill prisoners, for whom I'd like to see a similar study performed. More attention should be paid to that transition.
This is one of those moments when "an ounce of prevention is worth a pound of cure." I could make that argument for quite a few other reentry services, but in this instance it's particularly true.
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