'Scent lineups stink to critics'

The title of this post is the headline over a USA Today article published today voicing criticisms of Fort Bend County Sheriff's Deputy Keith Pikett's use of bloodhounds to conduct "scent lineups," which have led to false accusations in two recent cases including one that resulted in a DNA exoneration. According to USA Today:

Two federal lawsuits are casting a harsh spotlight on an investigative tool long beloved by American law enforcement: a bloodhound's nose.

Lawsuits filed in Victoria, Texas, allege that Fort Bend County Sheriff's Deputy Keith Pikett and his team of hounds — James Bond, Quincy and Clue — failed controversial sniff tests known as "scent lineups."

Much like in traditional lineups, the dogs link human scents left at crime scenes to samples from suspects.

In each case, the suits allege, Pikett's dogs called attention to the wrong person. Both former suspects have been cleared. ...

Defense lawyers say the technique smacks of forensic voodoo and casts further suspicion on the broader use of scent dog evidence.

"It's a fraud on so many levels," says Jeffrey Weiner, former president of the National Association of Criminal Defense Lawyers.

Since 2004, two men in Florida and one in California have been freed after DNA evidence exonerated them. They had been convicted, in part, on the use of scent evidence, according to the Innocence Project, which uses DNA to exonerate the wrongly convicted. Pikett's dogs weren't involved in those cases.

National Police Bloodhound Association spokesman Dennis Guzlas says the association urges that scent lineups be used with caution.

What is the error rate for the dogs' identifications, since we know it's not zero? Do the scent lineups utilize "blind" administration or is Pikett inadvertently tipping the dogs off who to pick? And has there been anyone convicted based on evidence from Pikett's dogs alone? If so, there might be some valid innocence claims looming out there among the 2,000 cases Pikett claims his dogs have worked. Dog sniffs aren't exceptionally reliable in other venues so I'm not sure why they'd be taken as gospel here, particularly in the face of a DNA exoneration proving the dogs and the deputy were wrong. How many other, similar errors have they made that nobody caught?

See prior Grits coverage:

• A 'scent lineup'? Rover in the witness box
• DNA exoneration indictes Rover in the witness box

MORE: Radley Balko focused recently on a similar example out of Florida where:

So far, three people have been cleared after collectively spending more than 50 years in prison, all of whom were convicted primarily due to the dog's alerts, despite other evidence exculpating them. Florida criminal justice activists say there may be as 60 more people wrongly convicted thanks to [Officer] Preston and his dog.

Survey: Family best ally for successful post-prison reentry

Results from three new surveys by the Urban Institute provide a lot of new detail and analysis regarding barriers to successful reentry for prisoners returning from TDCJ to Houston. See their recent reports:

• One Year Out: The Experiences of Male Returning Prisoners in Houston, Texas
• Women on the Outside: Understanding the Experiences of Female Prisoners Returning to Houston, Texas
• When Relatives Return: Interviews with Family Members of Returning Prisoners in Houston, Texas

To point out just a handful of notable survey-based findings from the longitudinal study of returning male prisoners:

In terms of supporting themselves financially, men left prison with thousands of dollars of debt, and many faced challenges in seeking employment due to lack of photo identification and the existence of a criminal record. Despite these challenges, three out of five men were employed by eight to ten months out, and most of them reported that their employer was aware of their criminal record.

Overall, "the strongest predictor of employment success over time was avoidance of drug use early after release."

I was also interested to learn that, at least according this survey, most offenders were gainfully employed before they went in

The majority (69 percent) of men reported legal employment in the six months before entering prison or jail. Nevertheless, nearly a third (29 percent) reported receiving some income from illegal activity in the six months before incarceration, and 18 percent received most or all of their income from illegal activity during this time.

The survey also found a marked disparity in recidivism rates between state jail felons and prisoners in TDCJ's institutional division:

An important thread that runs through all of these findings is that of the striking difference in the reentry challenges, experiences, and outcomes between men released from state prisons and those released from state jails. In Texas, convicted felons sentenced to two or more years in prison are housed in state prisons, while lower-level offenders serve time in state jails, which primarily house drug and property offenders and probation violators. Men exiting from state jails have more extensive histories of substance use, are less likely to have received programming of any kind either before or after release, and are more likely to engage in postrelease substance use. Despite these deficits, state jail releasees are less likely to be returned to confinement in a year’s time, possibly because unlike those exiting prison, they are not under any form of postrelease supervision that might serve to detect violations or new crimes.

The first night out of prison can become a key stumbling block to successful reentry for prisoners without family support or a home to go to, particularly among returning state jail felons:

Unfortunately, the men interviewed for this study had few resources with which to navigate the challenges they faced during the first few hours after their release. Many men (73 percent) had only one set of street clothing, and fewer than two in five (37 percent) had a non-TDCJ photo identification at the time of release. Men exiting state prison left with $50 in gate money, while those exiting state jails were not provided with any cash assistance, relying instead on whatever funds they had in their prison accounts. The typical exiting prisoner had just $7 in account funds, and the average state jail inmate had $18 in account funds.

The first challenge faced by many men following their release was transportation. While exactly half of men had someone to meet them at the time of their release, the other half left the facility alone. Just over half (54 percent) reported that they had been given a bus ticket, voucher, or money for transportation on the day of their release, and roughly one in four (28 percent) traveled away from the facility by bus.

Another immediate challenge was finding a place to sleep. Figure 3 shows where former prisoners and state jail inmates slept on the first night after release. While the majority (60 percent) stayed in a family member’s home, about one in four stayed in their own home. Those exiting state jail, however, were much more likely to have spent their first night in some form of temporary housing, such as a motel, boarding house, shelter, halfway house, or treatment facility (13 percent of state jail releasees versus 4 percent of state prisoners).

Seldom heard in discussions about recidivism is how much money many inmates owe when they get out of the state lockup, and how that debt burden can hinder their ability to get back on their feet, particularly (if, to me, somewhat inexplicably) for state jail felons:

The men in this study left prison with many financial obligations, both new and old. Most (62 percent) owed at least one form of debt at the time of release, and all faced challenges in meeting their basic needs—including housing, food, clothing, and transportation. On average, state prisoners owed about $643 and state jail inmates owed about $3,000 in the first few months after release. By eight to ten months out, the average debt had increased to $900 for state prisoners and $8,254 for state jail inmates. These debts included fines, restitution, court costs, supervision fees, and child support, with the latter two being the most common forms of debt owed.

I don't understand why debts for state jail felons would be so much higher than those coming out of regular prisons. More must be going on there than meets they eye.

Finally, and quite remarkably, family support was identified the biggest factor predicting successful reentry, contrary to offenders' expectations when they left prison:

When asked shortly before release which factors would be important in keeping them out of prison, men cited employment and housing more frequently than family support. However, when asked at eight to ten months after release which factor had been most important in keeping them out of prison, men were more likely to choose family support than any other factor

I think it's often assumed that inmates come from dysfunctional families and that returning to that environment may actually contribute to recidivism. But these data indicate that maintaining family ties offers the best chance for ex-prisoners to succeed, making inmates' families a key, under-appreciated and underutilized resource for preventing future crimes by former prisoners.

Lion prides operate like street gangs

I thought this was an interesting anthropological observation:

"The most important way to think about this is that lion prides are like street gangs," says [lion researcher Craig] Packer.

"They compete for turf. The bigger the gang, the more successful it is at controlling the best areas. The main difference from humans is that these are gangs of female lions."

Will Melendez-Diaz compel confrontation for parole revocation certificates?

R.J. MacReady over at the Texas Court of Criminal Appeals blog analyzes possible implications for Texas from last week's Melendez-Diaz ruling by SCOTUS. Though Scalia expressly cited Texas' statute on confrontation of lab experts as an example of state law that already complied with the new ruling, MacReady thinks Melendez-Diaz could result in a change to how Texas courts view confrontation in cases involving business records and parole revocation certificates:

Scalia also goes into talk about business records, and this portion of he opinion may be a little more than cosmetic. Here, Scalia makes clear that business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection, either. This may come as a shock to Judge Keasler who concurred in Smith v. Texas that business records are not testimonial under Crawford. According to Scalia, business records that are kept in the normal course of business may not violate Crawford, but we have to look at whether the regularly conducted business activity is production of evidence for use at trial. Scalia notes that an accident report prepared by an employee of a railroad company did not qualify as a business record because it was calculated for use essentially in the courts, not in the business. Palmer v. Hoffman, 318 U.S. 109 (1943). ...

For some more concrete speculation (yet another paradox), I did immediately ponder the ramification of the jail infraction records at issue in Smith v. State (cited above) and Russeau v. State and the parole revocation certificates in Segundo v. State when I read this opinion. Clearly, this portion of the opinion vindicates the results in Smith and Russeau, namely that narratives contained in jail records are testimonial. But the CCA reached that result by drawing a distinction between a subjective interpretation facts and a sterile recitation of the facts. In Segundo, the parole revocation certificates did not violate Crawford because they contained sterile recitations of the fact of revocation rather than a detailed description of the cause. Upon reading this opinion, it's arguable that this "sterile recitation of the facts" paradigm could be seen as another attempt to impose the same reliability standard that the majority rejects in Melendez-Diaz. The flip side of this argument is that the more sterile record notations are found in records that are not prepared in anticipation for trial, but necessary notations so that the jailers who have access to these records and the administrators that make housing decisions need to rely upon them when moving prisoners from place to place. I don't know. I'm just going off the dome. [As a side note, Scalia does mention in footnote 2 that medical reports created for treatment purposes would not be testimonial under the decision in this case.] But I will be interested to see how these type of evidence is considered going forward.

Still, the thing to remember is that this case only dealt with drug lab results and SCOTUS pretty much endorsed the Texas statutory notice-and-demand scheme for drug analysis. For you legislative history buffs, this statute was so cleverly suggested by the prescient Jay Johannes of the Colorado County Attorney's Office, drafted (the first draft anyway) by Ken Sparks the Colorado County Attorney, and sponsored by House Rep. Debbie Riddle. They're the ones that crafted the legislation, and their foresight may have shielded Texas from another Apprendi-like storm.

More problematically for the State, the majority has indicated that not all business records are going to be immune to a Confrontation Clause challenge and courts will need to look to whether the records are prepared for business or for trial. Justice Kennedy fears that lack of a clear definition of what witnesses we're talking about could grind the criminal justice system to a halt. I'm sure it won't, but we'll have to wait a little for the smoke to clear so we can look through the rubble.

Judging by Scalia's distinction on business records - whether the document was prepared specifically for use in court - I'd agree with MacReady that the CCA's conclusion about parole revocation certificates being non-testimonial seems highly suspect. Given that Texas' statutes on lab reports already complied with confrontation requirements, that could turn out to be the most important new implication of Melendez-Diaz for the Lone Star State.

See related Grits posts:

• Real splits on criminal justice not liberal-conservative
• SCOTUS: Forensic reports require cross-examination of analysts

TDCJ prisoner decline could bust privatization scheme for Grayson County Jail

In Grayson County last year, officials were enamored of the idea that they could expand their local jail without taxpayers "footing the bill" if they built it out much larger than necessary, allowed a private company to operate it, and leased out empty space to the Department of Criminal Justice. But with the jail building decision drawing near, TDCJ's population is down and they're not leasing as many beds from counties as they have in the past. Reported KTEN-TV ("Less inmates in Texas, more trouble for Grayson County jail," June 29):

Over the past few months commissioners have discussed privatizing the jail to reduce costs.

They hope building a larger facility will allow them to house more inmates from across the state and that the fee per inmate will be less than what their paying now. On the other hand, the Texas Department of Criminal Justice says the number of inmates in has fallen, which would lead some to believe a new, larger jail in Grayson County may be sitting empty, yet county Judge Drue Bynum says he not worried.

"Their feasibly study came back and said in the next 20 years we would need a facility that would hold between 720 and 750 people, so we were making our decision based on the jail commission feasibility study that we just engaged."

The new jail is slated to be built near the corner of Frisco Road and Graystone on the Northeast side of Sherman.

The company now being considered is Southwest Corrections. They hope to run a new 750 bed jail here.

I'd identified this issue when Grayson first proposed the idea of overbuilding and privatizing its jail, writing that "if the company can't find other entities willing to lease the beds at an inflated price, the county will be stuck with the full tab for space it doesn't need." Now on the eve of the county's vote on the project next month, that possibility appears less remote than when the economy was booming.

Judge Bynum now says it's no big deal if they can't lease the extra space, but as a practical matter, this new development sure seems to put a dent in the county's financing scheme. After all, he pitched the privatization idea saying it would mean taxpayers won't "foot the bill for the jail." They were operating under the assumption that profiteering off extra incarceration would pay for the county's baseline jail needs, but now, in the midst of a recession and with state inmate numbers falling, that strategy appears less viable.

Texas criminal justice reform legislation passed in 2009

Though much positive legislation died in the 81st Texas Legislature's closing days, I never went through the good criminal justice legislation that did finally pass and become law this year. This isn't a comprehensive list; let me know what I missed in the comments:

Eliminating LWOP for juveniles
Perhaps the bill passed with the most significant national implications was SB 839 by Hinojosa eliminating life without parole as a sentencing option for juveniles, substituting a 40 year minimum for juveniles convicted in capital cases.

Compensating the falsely convicted
The Texas Legislature this year approved and the Governor signed into law an expanded compensation package for innocent people who've been falsely convicted (HB 1736 by Anchia/Ellis), a bill I lobbied for on behalf of the Innocence Project of Texas. Under the new statute, falsely convicted defendants may receive $80,000 per year incarcerated plus a like amount stretched out over a lifetime annuity. Meanwhile, SB 1847 by Hegar ensures that wrongfully convicted inmates released from prison aren't denied the same reentry services (see HBs 1711, 2161, below) given to actual offenders.

Corroboration for jailhouse informants
SB 1681 by Hinojosa/Gallego requiring corroboration for jailhouse informant testimony in order to secure a conviction was the only significant policy-related innocence bill that passed aimed at preventing future false convictions.

Shield law for journalists
A new "shield law" will give journalists including, in some instances, bloggers, qualified privilege from providing testimony about confidential sources.

Restoring inmate 'good time'
Though it's no longer the case that prisoners are released when their "good time" plus "time served" equals their sentence, HB 93 by Hodge/Hinojosa, authorized the Department of Criminal Justice to reintate "good time" taken away for disciplinary purposes, authority TDCJ wanted as an added tool for managing prisoner behavior.

Prisoner access to books
A new law made it easier for volunteer organizations to send books to TDCJ inmates by mail. Previously inmates could only receive books directly from the publisher. TDCJ will be adopting rules soon to implement the new policy.

Improving reentry prospects
Another good bill was HB 1711 requiring TDCJ to create reentry and reintegration plans for offenders released from TDCJ and establishing a multi-agency task force to coordinate reentry services. The conference committee went with language in the House version of the bill, described in this House Research Organization report (pdf).

Securing drivers licenses for ex-offenders
HB 2161 was an important reentry bill requiring TDCJ and DPS to coordinate to ensure that offenders leaving Texas prisons can get street-legal ID. According to the HRO, the bill would "require DPS to accept an offender ID card or similar from of identification issued to an inmate by the TDCJ as satisfactory proof of identification to receive a personal identification certificate" after DPS has had an opportunity, before the person leaves prison, to verify their identity. This is a big deal because DPS has historically refused to accept TDCJ ID cards as valid ID, making reentry in the immediate days after a convict's release from prison especially, needlessly difficult.

Temporary reentry housing authorized
Another boon to reentry was the authorization in HB 3226 by Madden/Seliger for TDCJ to pay for temporary housing for parolees who meet all other parole requirements but need a place to stay. TDCJ must create rules that control the payments which are generally authorized for parole-approved inmates if it costs less than what would be incurred incarcerating them.

Huntsville no longer sole point of TDCJ departure
As gas prices start to go up again, TDCJ should save significant money releasing offenders from the facility where they're housed or from "regional release centers" instead of processing everyone out through Huntsville after passage of HB 2289 by Madden/Whitmire.

Reentry and mental health care
HB 4451 by McReynolds/Hinojosa requires TYC to better coordinate continuity of mental health care for offenders receiving those services in youth commission facilities.

Indigency program for 'driver responsibility' mess
An amendment to the DPS Sunset bill requires the Department of Public Safety to establish an indigency program for its driver responsibility fee and establish rules to govern the process. The fee, which is quite high and stretches out over a three-year span, presently has about a 70% nonpayment rate.

Those were the main highlights on my own radar screen. Let me know what other good stuff passed this year that you were happy about.

UPDATE: Via email, Ana Yañez Correa helpfully forwards me this list of 31 bills (pdf) supported by the Texas Criminal Justice Coaltion that passed into law this session. Congrats, Ana, on your team's hard work.

MORE: New Office of Capital Writs. An astute commenter points out I failed to mention SB 1091 creating a new capital writs office to handle indigent habeas appeals in death penalty cases. According to the House Research Organization report (pdf) on the bill:

SB 1091 would create the Office of Capital Writs to provide legal representation for indigent capital murder defendants who were sentenced to death and were appointed counsel for a writ of habeas corpus. Courts would have to appoint the office to represent indigent capital defendants for habeas writs unless specific conditions in the bill were met.

The bill would repeal the current duty of the Court of Criminal Appeals to adopt rules for the appointment of attorneys for the indigent for habeas corpus writs. ...

The office would be allowed to represent defendants in death penalty cases only in proceedings for state writs of habeas corpus, legal motions related to preparing a habeas petition, and other state post-conviction matters other than a direct appeal. The office could not represent a defendant in a federal habeas review.

New judge in TYC sex abuse cases

Finally, a new judge has been appointed in the TYC sex-abuse cases out of the West Texas State School, so we can likely expect a trial date to be set sooner than later. The state had been ready since last year but the district judge in Ward County had refused to set a trial date. Reported AP:

An Odessa judge is now handling the cases against two former West Texas youth prison officials accused of repeatedly sexually abusing teenage inmates.

Court records show District Judge Jay Gibson was appointed Thursday to the case against John Paul Hernandez and Ray Brookins, both former administrators at a Texas Youth Commission jail in Pyote.

Gittin' tuff on graffiti spawns more of it in Corpus Christi

Threats and punishments from authority figures only go so far when dealing with rebellious teens, but in Corpus Christi, officials believe they can ramp up penalties high enough for graffiti to scare youth away from the behavior. So far, though, git-tuff policies have had exactly the opposite effect.

It reminds me of the bromide that only crazy people do the same thing over and over again expecting a different result.

Corpus Christi city officials (not to mention local judges and prosecutors) inarguably have taken the harshest stances in the state against graffiti, focusing large amounts of police resources on the problem and fairly routinely seeking felony penalties (a felony can be charged for any graffiti on school and churches or when there's $1,500 worth of damage or more) that have sent graff writers to state prison.

Political discourse in Corpus regarding graffiti has gotten absurdly over the top. Indeed, to judge by local rhetoric, many of its citizens seem to think it's a bigger worry than Mexican drug cartels or violent crime.

Take a look at the truculent reader comments following a recent story in the Caller Times about a repeat tagger's latest felony graffiti arrest: "Next time he's caught tagging, someone please shoot him," one reader suggested. Another chimed in, "Great, my taxes will pay for this idiot's food and board for the next two years? Can I just buy a box of bullets instead and save us all some money?" Five out of 40 commenters expressed gloating pleasure at the notion the 19-year old might be sexually assaulted in prison.

Such comments typify a mounting public sentiment (or perhaps more accurately, a "mob mentality") in Corpus developing for the last 2-3 years about graffiti, with rhetoric and draconian proposals coming from that city's leaders that make the rest of the state look like spray paint loving hippies.

Perhaps it's not too great a stretch to wonder if some of these comments might indicate a form of localized mass hysteria, which research has shown "often occur[s] where people find themselves in an intolerable situation that they're not able to influence or otherwise complain about." That description perfectly fits the situation property owners find themselves in, particularly since many municipal laws actually punish the victims of graffiti crimes.

But ironically, the more Corpus Christi pursued a John-Wayne-style, tuffer-than-thou, enforcement-only approach, something counterintuitive happened: Playing cat and mouse with young punks empowered and emboldened them within their outcast subculture. As a result, the city's tagging problem worsened instead of improved. Most of Corpus Christi's tagging isn't gang-related, but rather comes from competing youth tagging crews ensconced in oppositional hip-hop or skateboarding cultures. So rather than scaring them away from the activity, Corpus Christi's approach played right into their cultural predispositions by confirming, in real life, that their penny-ante activities qualify as gangsta.

As a result, after bringing down the full force of its criminal justice apparatus on graff writing only worsened the problem, now the city will try its luck in the civil courts. The Corpus City Council is now considering whether to launch civil suits against parents of graff-writing teens, a proposal being copied from Los Angeles (where obviously they've got the graffiti problem completely solved - let's definitely mimic their approach!).

But of course, authorities never catch the perpetrators in the vast majority of graffiti incidents, and the parents' inability to contain their kid is how we got to this point in the first place. Maybe some just didn't try, but I'll bet more frequently when you find a teen getting in trouble repeatedly for graff, you'll also find a frustrated parent who's at the end of their rope. Suing already-embattled parents doesn't seem like the way to go; it's a symbolic but not a substantive response.

There are only a relative handful of people engaged in tagging in Corpus and the cops know who at least a signficant plurality of them are. But the city's relationship with these youth is entirely oppositional, playing directly into the dynamic that drew them to tagging in the first place. In reality, because police and prison resources are limited, cities can't win the enforcement-only game. Youth with a burning desire to write on the walls will do so, which is why I've frequently suggested giving them at least some approved spaces for the purpose.

If we want youth to stop doing graffiti, harsh enforcement empirically won't do the trick by itself or else Corpus Christi by now would be graffiti free. Stopping graf additionally requires developing a deeper understanding of why youth are doing it in the first place and providing them with alternative outlets for destructive energy. That's where Corpus and many other cities have failed.

I recall a remarkable story published in the Washington Post a couple of years ago about local officials' reaction to a graffiti problem in Jiddah, Saudi Arabia,

Abo-Umara, 45, said young men like Alwani should not be held accountable until officials are sure they've done right by local youth.

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

True to his word, Abo-Umara held a two-day workshop called "What Do Youth Want From Jiddah?" in July, shortly after his meeting with Alwani. More than 200 young men and women attended, on separate days, and their list of demands included cinemas, public libraries, and music and art centers.

The young women asked for private beaches for women and girls, for at least widows and divorced women to be permitted to drive, and for boys who harass them to be fined.

Both groups requested sports facilities, of which there are very few in Saudi Arabia.

Abo-Umara was able to implement one demand immediately: walls dedicated to graffiti.

This Saudi leader understood a point made well recently by art critic Rex Thomas in an excellent essay,

While street art is a fresh, interesting language, it should not be mistaken for the language of knowledge or power. Instead it is the language of a city that is weak and divided. We must hear what graffiti says to us as a society, and retake our physical urban character as a common, broad place that offers security, sacred, and special places for all citizens, not just the privileged few ... By ignoring graffiti art, we postpone our treatment of the urban malaise. By confronting it and bringing it into the mainstream, we can better treat our urban condition and improve the city as a dwelling place for the benefit of all.

I realize that by suggesting we need an "understanding" of why young people break the law, I'm opening myself up to stereotyping as a "liberal" who just wants to hand the criminals a teddy bear and send them on their way. (Untrue, but by now I'm used to it.) The fact is, though, that Corpus has been pursuing the tuffest criminal enforcement tactics in the state on graffiti and by all accounts the policy has miserably failed, which is why the focus is now shifting to the civil courts. If folks actually want to solve the problem instead of just complaining about it (something I often think may not be the case), at the end of the day different tactics will be required.

For example, most prosecutions for graffiti in Corpus Christi are juveniles. But are youth getting adequate opportunities to pursue art in school, or has art class been de-prioritized in favor of the TAKS test, as has been the case in much of the rest of the state?

Grieved property owners notoriously (and understandably) aren't interested in listening to what graffiti writers have to say, but IMO that's a prerequisite for finding a satisfactory way to reduce the problem in the long-term. (Graff can only ever be managed; it's not practically possible to 100% end the practice, which dates to ancient times). I understand why folks in Corpus are angry, though I cannot justify the hysteric vitriol in the most extreme examples above. But anger won't help nearly as much as just buying a second graffiti cleanup truck and investing in local opportunities for youth as an alternative to merely prosecuting them.

Fewer prisoners, more guards at TDCJ

According to AP:

Texas prison officials plan to cancel contracts to house up to 1,900 state convicts in county lockups because the number of inmates in state prisons has fallen.

Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, told the Austin American-Statesman that officials plan to move the convicts now housed in county lockups back into state prisons by the end of August. Lawmakers, who directed the move, anticipated the population decline and did not appropriate $28 million to continue leasing the contract beds.

The decrease in state inmates — part of a national trend — coincides with an increase in correctional officers at the state’s 112 adult prisons. The vacancy rate for prison guards has dropped to about 5 percent, the lowest in more than a decade for a state that has long had a shortage of prison guards.

Texas has just 1,262 correctional officer jobs now open, compared with more than 3,700 just over a year ago. Officials say more people have become guards because of pay incentives and the struggling economy.

"It’s the economy. No doubt about it," said state Sen. John Whitmire, D-Houston. "When there’s not many choices for employment, and the oil patch slows down, these prison jobs start looking real good."

I'd wondered recently whether TDCJ would achieve significant prison population reduction by the end of FY 09 in August as estimated (pdf) by the Legislative Budget Board, and this news makes me think those estimates may have been pretty accurate.

Texas Police Games: Maybe Grits needs a sports beat

It's occurred to me before maybe Grits needs a sports beat, and if so the place to be this weekend would be Conroe where reportedly 2,000 sworn officers have gathered to compete in the Texas Police Games.

They've got quite an impressive list of events lined up. The K-9 Narcotics competition will be held this morning.

Photo from the Montgomery County News.

Number of mentally ill in jail a community 'barometer'

The executive director of the Harris County MHMR Authority, Steven Schnee, has an effective op ed in the Houston Chronicle today declaring that the scope of mentally ill people in the Harris County jail foretells a coming crisis:

The Harris County Jail is now the largest mental health facility in Texas. Approximately 2,400 inmates a day are now diagnosed with a psychiatric illness that medically justifies the provision of psychiatric medications. There are almost as many psychiatrically ill inmates in the jail on psychiatric medications as there are patients in all of the Department of State Health Services hospital beds across the entire state.

Let that reality sink in.

How is this occurring? Several critical factors contribute to this disturbing trend. First, many individuals with a serious mental illness need early access to appropriate professional diagnosis and treatment and, often, supports to achieve and maintain stability in their psychiatric condition. These conditions aren’t, as a general rule, cured by medication. Stabilized, yes — cured, no. These individuals need education about the condition, available treatment options, impact on personal capabilities, stability and maintenance over time, etc. — all of which are made more difficult by the nature of these disorders affecting the information-processing organ of the body — the brain. These are neuro-chemical — disorders of the brain. And, if one throws into the mix that many untreated or undertreated folks with mental illness self-medicate with street substances, alcohol or both to ease the internal pain, one has a recipe for people recycling in and out of the criminal justice system because their behaviors run afoul of the law.

The discrepancy between the funded treatment capacity (8,500 per month) for only the three eligible diagnoses of schizophrenia, bipolar disorder and major depression (let alone all the other serious psychiatric conditions for which people end up in jail) is huge. A conservative estimate of the incidence/prevalence of these three diagnoses in Harris County is 170,000. ...

The risks to our society at multiple levels are huge. Economically, socially, to compete on the world stage, we can’t afford to continue the incredible loss and waste of human potential. And though the focus of this article is on the adult justice system, a similar reality is unfolding within the juvenile justice system.

Keep an eye on the jail — it is truly a barometer of the health of our community.

Clean Graffiti?

It may just be an advertising gimmick to sell cars, but "clean graffiti" strikes me as a pretty clever idea. They just used a stencil and a "cleaning agent," probably bleach, and it can't be illegal (yet) to clean the sidewalk.

Texas Bribery Roundup

Somebody could launch a kickass blog devoted entirely to covering Texas-related bribery cases and it'd be a long time before you ran out of material. Just to mention a few recent examples:

US House Judiciary Committee Chairman John Conyers' wife, who sits on the Detroit City Council, pled guilty yesterday to taking a bribe from a Texas-based company:

Prosecutors said Friday that Monica Conyers accepted two payments in late 2007 to support a city contract that would pay $47 million to Texas-based Synagro Technologies to recycle wastewater sludge and build a modern incinerator in Detroit. The council voted 5-4 to approve the deal, with Conyers supplying the decisive vote.

Synagro is based in Houston and one of its employees is expected to take a plea deal on Monday, but there are also a couple of ugly Dallas cases worthy of note. At the Dallas school district:

Federal authorities say the cash-strapped Dallas school district has agreed to financial penalties to settle claims that it abused a government program that provides Internet access to lower-income schools.

The settlement announced Friday requires the district to abandon more than $150 million in requests for federal funding and pay $750,000. The district faces a $30 million budget shortfall.

The Justice Department and the U.S. Attorney's Office in Dallas say the school district engaged in noncompetitive bidding practices and accepted improper gifts from vendors, including free use of a yacht.

Yikes! Losing $150 million in stimulus money is a damn harsh penalty for the school district. Meanwhile, it looks like the couple accused of bribing state Rep. Terri Hodge and a host of other Dallas officials may have cut a deal with prosecutors. If so, that will certainly put the squeeze on the remaining defendants in the Dallas city hall corruption case scheduled to run for the next six to eight weeks.

Employees at the San Antonio Housing Authority this month were indicted for allegedly taking kickbacks from contractors.

Finally, in El Paso the distict clerk has been indicted for bribery; prosecutors say he accepted cash and a trip to Vegas from a local attorney allegedly "to rig bid specifications on a proposed $53 million county contract." One of his employees, a county commissioner, and the former chief of staff for the county judge have already taken plea deals as a result of the FBI investigation.

Obviously those who've not pled or been convicted must continue to receive the benefit of a presumption of innocence, but there's a lot of smoke here for there not to be some fire and on its face these problems seem awfully widespread.

Seriously, this would be a great niche blog topic. I'm pretty full up with my own self-assigned beat, but I'd sure like to see some energetic blogger take up the mantle.

Commission: Probationers, immigrant detainees may be subjected to sexual abuse

The problem of prison rape has been widely discussed and decried, but a major new report (pdf) almost six years in the making by the National Prison Rape Elimination Commission says the problem can also occur in community corrections settings, mostly as a function of coercion by probation and parole officers:

As in other correctional settings, courts have found that sexual abuse in community corrections violates the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment. As a result, community corrections agencies, like prisons and jails, have a special responsibility to protect the people they supervise. Courts also have determined that the authority staff have over the individuals they monitor makes a truly consensual sexual relationship impossible. Community corrections agencies are accountable for sexual abuse incidents, regardless of whether the circumstances in which the abuse occurred were under the direct control of the agency or a separate organization working under contract with the agency. Anyone in a supervisory position can be held liable for abuse. For example, in Smith v. Cochran, Pamela Smith was in jail but participating in a work release program. Her supervisor on the job sexually assaulted her, and the court ruled that important “penological responsibilities” had been delegated to him.

Although individuals under correctional supervision in the community may experience sexual abuse at the hands of other supervisees, the dynamics of supervision make them particularly vulnerable to abuse by staff. Coercion and threats carry great weight because individuals under supervision are typically desperate to avoid being incarcerated. Staff also have virtually unlimited access to the individuals they supervise, sometimes in private and intimate settings. In Ramsey County, Minnesota, for example, a male community corrections officer visiting a former prisoner’s apartment to discuss her failure in a drug treatment program instead requested and had sex with her.

The report notably also called for more research into the issue of rape among the ever-growing number of immigration detainees:

In the 15 years from 1994 to 2009, the number of immigrants held in detention pending a judicial decision about their legal right to remain in the United States increased nearly 400 percent. For the 2009 fiscal year, ICE has budgeted enough money to detain 33,400 people on any given night and more than 400,000 people over the course of the year. The population of immigration detainees includes adults, thousands of “unaccompanied” children, and whole families confined together.

The prevalence of sexual abuse among immigration detainees is unknown and has yet to receive the attention and research it merits, but accounts of abuse by other detainees and staff have been coming to light for more than 20 years. Many factors—personal and circumstantial, alone or in combination—make immigration detainees especially vulnerable to sexual abuse. One of the most pervasive factors is social isolation. Individuals are often confined far from family or friends and may not speak the language of other detainees or staff. Those who have already suffered terrifying experiences in their home countries or in the United States can be almost defenseless by the time they are detained and may even expect to be abused.

I must admit I'd never considered those particular aspects of the issue, but I'm glad the commission did.

Meanwhile, thanks to the Prison Rape Elimination Act, we've recently gotten the first estimates of national prevalence rates for in-custody rape: In large national survey, according to the report, about 4.5% of inmates US prisons and 3.2% in local jails said they'd been victims of sexual assault while incarcerated within the prior 12 months. "Approximately 20 percent of all victims said that they had been physically injured during the course of the abuse." In jails, in particular, some categories of inmates were much more likely to be abused:

Women were more likely than men to be sexually victimized (5 percent compared with 3 percent). Rates were higher among younger inmates: 4.6 percent among respondents 18 to 24 years old, compared with 2.4 percent among respondents 25 years and older. Nearly a fifth (18.5 percent) of inmates who identified as homosexual and 9.8 percent who identified as bisexual or “other orientation” reported being sexually victimized, compared with 2.7 percent of heterosexual inmates. ...

Youth confined with adults also are at high risk of sexual abuse. In 2005, for example, individuals under the age of 18 made up less than 1 percent of all inmates in U.S. jails.64 Yet 21 percent of all victims of substantiated incidents of sexual abuse involving jail inmates that year were under the age of 18

See additional coverage from the Washington Post and the New York Times.

Crisis or gamesmanship behind proposed CA cuts to DNA testing?

California's forensic labs face an astonishing development as a result of that state's massive budget shortfall: The Los Angeles Sheriff has already halted the practice of sending rape kits out for DNA testing because the department has no money, plus, state crime labs are scheduled to have their budgets cut by half, forcing them to begin charging smaller jurisdictions for services like DNA and other forensic testing that they previously provided for free (as is the case with Texas' state crime labs). According to this item at The Huffington Post, "Last year, the state lab tested evidence in about 50,000 cases, including more than 1,400 containing DNA." Indeed,

Hundreds of police departments and district attorneys' offices in 47 of the state's 58 counties currently rely on the state lab to test their crime scene evidence. The other 11 counties, mostly concentrated in the Los Angeles and San Francisco areas, have their own labs to test forensic evidence.

But many law enforcement agencies in small or rural counties doubt they'll be able to afford the new charges, which are likely to run about $215 an hour. If the agencies can't pay, the lab will have to close some of its branches and lay off some of its scientists, said Jill Spriggs, the lab's bureau chief.

The agencies also could be forced to shelve thousands of DNA samples, bullet casings and other pieces of evidence used to identify violent criminals. There are already more than 350,000 untested DNA samples nationwide, according to federal government statistics.

Ultimately, some police chiefs said they might have to choose: pay to process evidence, or lose more cops on the streets. More than 1,000 police officers were eliminated statewide in the past year. ...

The proposed cut could go into effect between July 1 and Jan. 1, she said. It's unclear if it would be permanent.

When I first saw the story of the LA Sheriff's decision, I wondered if this was a tactical move - threatening to eliminate a popular and needed function in order to sway public opinion in favor of keeping less defensible parts of his budget. But the cuts to statewide crime labs are a serious proposal in the state legislative budget, which escalates the dilemma to a new level.

I still think, though, that there's a bit of budgetary gamesmanship going on regarding how these issues are portrayed by the media and public officials. Much of the volume for crime lab work isn't for DNA testing but for drug cases, but it's money for processing rape kits getting cut first? That makes little public safety sense. If you're forced to prioritize, surely that function would be a lot farther down the budget cut list?

RELATED: Those interested in tracking the struggles of California's justice system amidst declining budgets should visit the law-prof-run blog, California Correctional Crisis, as well as another good looking blog I ran across recently, Governing through Crime.

Houston jury awards $5 million for false conviction

A federal jury in Houston yesterday awarded George Rodriguez a $5 million verdict based on misconduct at the Houston crime lab that caused his false conviction. Said the Houston Chronicle:

George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

“Ain’t no amount of money is going to even my scale,” Rodriguez said after hearing the verdict. “I lost my dad and my girls have been through hell. I am grateful, but no money could replace what I lost.”

I find it hard to disagree with this interpretation of the jury's message:

“This verdict says what I think we all know to be true about the Houston Police Department crime lab,” said Barry Scheck, one of Rodriguez’s lawyers and a co-founder of the Innocence Project, which helped secure his release from prison. “They convicted innocent men and the city was indifferent.”

The Texas Legislature this year approved and the Governor signed into law an expanded compensation package for innocent people who've been falsely convicted (HB 1736 by Anchia/Ellis), a bill I lobbied for on behalf of the Innocence Project of Texas. But those affected must choose whether to accept the state compensation or sue, as Rodriguez did.

Under the new statute, Rodriguez would have been awarded $80,000 per year incarcerated (about $1.36 million) plus a like amount stretched out over a lifetime annuity, totaling a little over half the amount the jury awarded. But Rodriguez won't get paid yet and there's a significant chance the size of the verdict could be reduced by the Fifth Circuit on appeal.

The Legislature increased the amount because previously it was so low ($50k flat per year incarcerated, no annuity) that nearly all the innocent men getting out of prison chose to sue instead of accept the statutory compensation. Judging by the verdict in the Rodriguez case, the state has now increased the amount to where it's competitive, if not equal, with the amount they might receive in court.

Real splits on criminal justice not liberal-conservative

A common theme on this blog is that divisions on criminal justice issues - despite common stereotyping - don't typically fall along partisan or traditional ideological lines. The typical culture war debates that dominate American politics simply don't cut the same way when it comes to issues of crime and punishment.

Yesterday's US Supreme Court decision in Melendez-Diaz v. Massachussetts offers a perfect example. In that ruling, the Court narrowly upheld application of the Sixth Amendment's Confrontation Clause to testimony by forensic experts.

Look at the breakdown of the 5-4 vote: Justices Ginsburg, Stevens and Souter joined the two self-styled "originalists" on the court, Scalia and Thomas, while the opposition saw the conservative Alito and Chief Justice Roberts siding with Justice Breyer, who is normally considered a "liberal," and Justice Kennedy, who authored the dissent, normally considered the "swing vote" on the court, though not in this case.

(I have to wonder if Kennedy's usual swing vote status contributed to his over-the-top hysterical dissent in Melendez-Diaz? It almost seems like he's so used to his vote deciding cases, he was furious not to find himself in the majority and expressed his dissatisfaction through hyperbole.)

The divide on this vote was not liberal or conservative. Instead, the split would be better described as between "constitutionalists" and "pragmatists." The Confrontation Clause is clear on its face that an opportunity for cross-examination is required of witnesses against the defendant, and it's a HUGE stretch to claim that someone providing information to prove an element of a crime in court is not a "witness." (Scalia obliterated Kennedy's lame arguments on that score, IMO.) But the four justices in the minority thought it would be too burdensome to require compliance with the Constitution, while Scalia said that "The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience."

Quite frankly, I fear that if President Obama's nominee, Judge Sonia Sotomayor, had already replaced David Souter, the Melendez-Diaz decision would have likely gone the other way.

This plague of "pragmatism" on the court has virtually obliterated the Fourth Amendment restrictions on warrantless searches and seizures, with SCOTUS near-constantly finding excuses to justify searches that don't comply with the clear language of the Constitution. At traffic stops, in particular, the Fourth Amendment has become nearly a dead letter.

Similarly, in their big Fourth Amendment case yesterday on strip searching in schools, the Justices were able to achieve an 8-vote majority only by issuing an opinion that's virtually worthless for its precedential value. A commenter over at Sentencing Law & Policy wondered, "Is the message that the 4th Amendment is a facts and circumstances question, rather than a clean cut set of doctrines?" IMO that's exactly the message, and it's the same one the court's been sending on the Fourth Amendment for the last 25 years or so.

Bottom line: Respect for the Constitution isn't a liberal or conservative issue. Nor is it a universal value revered by the nation's judges, too many of whom find their loyalties lie closer to the pragmatic needs of the state's law enforcement apparatus than to the principles in the nation's founding document.

BLOGVERSATION: See "Godzilla v. Mothra" from the TXCCA Blog.

'Just remember, you're paying for it'

County jails all over the country have many of the same problems, and in Salt Lake City they're considering copying an approach tried in San Antonio to divert nonviolent and mentally ill offenders from the jail. Reports the Salt Lake City Tribune ("Thinking outside the cellblock," June 25):

Utah's most-populous county is straining under the inmate crush. The sheriff releases hundreds every month from the 2,000-capacity Adult Detention Center because of overcrowding and now is prepping a second jail, Oxbow, for operation. But even with the new beds, Sheriff Jim Winder concedes more jails offer only a short-term remedy.

"You can't build your way out of this problem," he says.

So the county is contemplating an innovation that would provide a "door No. 2" for nonviolent offenders suspected of substance abuse or mental illness who get nabbed on minor offenses such as disorderly conduct or petty theft.

Instead of putting them behind bars, police could send those wrongdoers to a "receiving center" that would assess their situation and recommend treatment, offering them a better shot at rehabilitation.

Criminal-justice experts see this corrections triage as the next big step for this valley of more than 1 million people, potentially reducing the population of drug abusers and mentally ill offenders who comprise more than 70 percent of the county's inmates.

"We need to turn off the spigot on the front end," says Pat Fleming, who oversees the county's substance-abuse division. "It's like a massive fire hose right now. People are just getting spewed out." ...

County officials see a receiving center -- ideally next to the jail in South Salt Lake -- doing more of the same for other nonviolent offenders, steering them away from a jail cell and into community-based mental-health counseling or substance-abuse programs.

The approach has worked in Bexar County, Texas, where officials avoided building a 1,000-bed jail by centralizing services in a Crisis Care Center. The complex now diverts 800 people a month from the jail, providing basic medical care, psychiatric screenings, detox and community treatment connections.

"We are freeing up space for violent offenders," says Leon Evans, president and CEO of the Center for Health Care Services in Bexar County. "It is the right thing to do."

A similar center took root in Orange County, Fla., freeing up 54,000 days of jail beds last year.

"You're paying a huge amount of money to incapacitate nonviolent, nonthreatening, usually nonconvicted people in your county jail," says Don Bjoring, who played a key role in launching the center. "If that's the policy, fine. ... Just remember, you're paying for it."

See also these related stories from the Tribune about Salt Lake's overcrowded local jail:

Judge sees option of shorter sentences

Thanks to Oxbow, a breather in booking

An addicted mom's best 'Hope'

Life coach is a game-changer behind bar

Limits set on student strip searches

See the SCOTUSBlog analysis of today's US Supreme Court decision and the court's 8-1 opinion (pdf) placing new limits on when students may be strip searched by public school officials.

SCOTUS: Forensic reports require cross examination of analysts

The US Supreme Court today issued a new ruling in Melendez-Diaz v. Massachussetts that affidavits documenting the result of forensic testing were subject to the Confrontation Clause in the Sixth Amendment of the US Constitution, meaning the lab analysts must be made available for cross-examination in court.

In the 5-4 ruling written by Antonin Scalia, I was particularly pleased to see the new report by the National Academy of Sciences specifically cited as justification for cross-examination of forensic lab workers. From the opinion (pdf):

Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune fromthe risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing foren-sic evidence] are administered by law enforcement agen-cies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthen-ing Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, theysometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcementofficial may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

What's more, wrote Scalia:

Like the eyewitness who has fabricated hisaccount to the police, the analyst who provides false re-sults may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

Texans know for a fact, of course, that such fabrications sometimes take place, so insisting upon a confrontation requirement establishes an important new protection against such abuses. It should be mentioned, though, that in footnote 6 Scalia makes clear the NAS report was not the main factor spurring this decision:

Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] in such great measure” on the deficiencies of crime-lab analysts shown by this report to resolve the constitutional question presented in this case. The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa. We discuss the report only to refute the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism.

As for the idea that requiring testimony by lab analysts would be too burdensome on the prosecution, Scalia thinks the concern is overstated but in any event told the complainers to suck it up:

respondent asks us to relax the requirements ofthe Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

Hear, hear! I wish we saw more such strict constructionism in SCOTUS rulings on Fourth Amendment cases.

Those interested can also read the oral argument transcript here (pdf), and check out the Scotuswiki page on the case.

Particularly notable was the makeup of the 5-justice majority: Scalia and Clarence Thomas are widely considered among the most conservative members of the court, but they sided with Justices Ginsburg, Stevens and Souter, normally considered the court's "liberal" wing, in order to reach today's decision. Justice Kennedy authored a rather alarmist dissent, but given the NAS report, his confidence in the "increasing reliability of scientific testing" seems absurdly misplaced. Thank heavens these unlikely allies were able to come together to help keep forensic testers honest.

UPDATE: Check out the discussion of this ruling on the Texas District and County Attorneys Association user forum. Their lobbyist Shannon Edmonds notes that Scalia specifically said "that certificates of analysis under [Texas'] CCP Art. 38.41 pass muster" because the defense can still confront the witness if they announce they plan to do so before trial. Under the Texas statute, such a "certificate is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the certificate with the clerk of the court and provides a copy of the objection by fax, hand delivery, or certified mail, return receipt requested, to the offering party."

Also notable on the TDCAA user forum was Williamson DA John Bradley's underwhelmed response to the decision and critique of Kennedy's minority opinion:

Texas has largely taken the approach adopted by the majority and has not seen any serious negative consequences. I was surprised to learn that so many States, even after Crawford, thought that cross-examination of an expert witness who held key information on proof of an element of the offense, could be skipped by defining that witness' information as nontestimonial.

My initial reaction is that the dissent is overreacting. However, I do think it is irrelevant to constitutional analysis to consider how many cases are plea bargained before deciding whether the Confrontation Clause applies. That's a slippery slope.

And, I didn't think the statistics provided on how many analysts would have to appear and testify was all that shocking. Texas being a big place, we have been dealing with much bigger numbers with little or no problem.

MORE: From SCOTUSBlog, TalkLeft, and the New York Times.

AND MORE: For discussion of how the case might impact military justice, see here. See also Richard Friedman's analysis on his Confrontation Blog, and a discussion at Crime and Consequences. Plain Error posted on the topic.

Time for DA to eat crow on Yogurt shop murder prosecutions

Big news yesterday in Austin's Yogurt Shop murder case. Reports AP, "Two men awaiting retrial in the 1991 murders of four teenage girls at an Austin yogurt shop were released from jail Wednesday while prosecutors search for a match to new DNA evidence that didn't come from either of them."

The Travis DA now says there was a "fifth man" involved - what one courthouse wag called an "unindicted co-ejaculator" - someone who was never mentioned in the supposed confessions or the prosecution's theory of the case.

More than 50 other people falsely confessed to the crimes in addition to the suspects and no evidence links the pair to the offense besides their confessions.

AP says "Prosecutors insist the DNA does not exonerate [Michael Scott and Robert Springsteen] as suspects and both still face capital murder charges." But IMO it's time for DA Rosemary Lehmberg to chow down on a super-sized helping of crow and give up on these cases: Either the recanted confessions were true or they're not. Prosecutors can't claim some self incriminating parts were true but not Springsteen's now disproven rape confession or key details like who was with them. They don't get to have it both ways.

Now that Travis prosecutors have DNA from the actual perpetrator, that's who they need to be pursuing.

MORE: From Jordan Smith at the Austin Chronicle.

More falsified results from Houston crime lab

Let's continue on the Houston crime lab theme this a.m. and take a look at this recent story (June 8) from the Houston Press' Hairballs blog about apparently falsified lab results in a death penalty case:

It's good news for death row inmate Charles Raby - and more bad news for Joseph Chu.

The former Houston crime lab analyst has taken a beating in the Michael Bromwich reports, which determined that, among other things, the lab had manipulated results to help with convictions. And it seems that in the case of Raby, who was convicted in 1994 of brutally murdering a grandmother, Chu did exactly that.

Back in April, Raby's DNA challenge, which has been going on more than six years, was postponed yet again pending an outside expert's look into Chu's blood-typing work in the original trial. Chu had found two separate blood types under the victim's fingernails, and they belonged to neither Raby nor the victim. Yet Chu simply listed the results as inconclusive.

The report came in last week. In her conclusion, Patricia P. Hamby, the outside expert, states that Chu's "inconclusive" reporting "is contrary to and not supported by the recorded laboratory test results for the left and right fingernail samples."

In other words, Chu lied about the lab results.

Reporting that evidence excluding a defendant was "inconclusive" is the kind of thing that happens when a "team spirit" mentality overtakes forensic workers and they come to consider themselves more as cops than scientists. Even if Raby is truly guilty (and I have no specific knowledge of the case), that doesn't excuse authorities employing what amounts to perjurious testimony (the false lab report) to convict him.

The US Supreme Court will soon decide a case that will determine whether lab reports are "testimonial" documents. But since they took that case, history has virtually mooted the point, especially after the publication earlier this year by the National Academy of Sciences showing that quite a few common forensic practices are based on pseudoscience and folklore that's unsupported by experimental science.

The Houston crime lab debacle puts the lie to the notion that lab workers' conclusions don't require cross-examination. Chu's reported results in this case were not objective scientific analyses but skewed misrepresentations designed to help secure a conviction. It's hard to see how any fair-minded jurist would find that justice is fairly served by assuming such conclusions are true without subjecting them to the adversarial process.

RELATED: From the blog Plain Error, see the story of another man who was the victim of overt misconduct at the Houston crime lab.

Jury to decide if Houston crime lab is liable for false testimony

Mostly due to a bit of post-session blog and politics fatigue, I've not been closely monitoring the ongoing civil rights trial in Houston over an egregious innocence case out of that city's troubled crime lab.

Arguably the City of Houston would have been wise to settle its lawsuit with George Rodriguez - an innocent man who spent 17 years in prison because a lab worker apparently lied at his trial to secure a conviction - after Judge Vanessa Gilmore denied the city's motion for summary judgment. But the city insisted on rolling the dice, so yesterday a jury heard final arguments in which the plaintiff requested $35 million, while attorneys for the city asked the jury to give the defendant nothing. We'll learn the verdict soon, one would imagine.

For more background, see this item from the Justice Project's John Terzano at TPM Cafe and these stories from the Houston Chronicle:

• $35 million for wrongful conviction? City says it should pay nothing to imprisoned man
• Ex-inmate tells of unjust verdict, family hardship
• Former chief Lee Brown testifies he tried to fix crime lab (Cough/bullshit!)
• Crime lab's ex-supervisor defends testimony
• Wrongly convicted man takes city to court

'Permission walls' help bring graffiti art into mainstream

Rex Thomas, a writer out of Florida, has an excellent piece out on the relationship between street art and civic spaces, arguing that failure to bring graffiti into the mainstream postpones "treatment of the urban malaise." I was particularly taken by Thomas' discussion of "permission walls" and his analysis placing graffiti in context with more traditional, accepted art forms:

In Orlando, the trend of giving street artists “permission walls,” or walls where they have permission to paint their work, has tamed some of the sabotage. By allowing graffiti artists to work with permission, they are free to develop their craft without fear of getting caught before completion, and the artwork becomes a colorful, mural-sized effort to which the artists can point with pride. These permission walls encourage friendly competition between teams, or crews, and there is a sense of pride among them for having created something with great exposure.

Two permission walls exist to the east of downtown, but it is the cluster of warehouses at 630 E. Central that showcase graffiti artwork at its best. Artist Robin Van Arsdol owns part of this cluster and has been sponsoring an international graffiti conference for several years, bringing in artists from Europe, the Caribbean, and North America for a weekend of painting at his studios. Driving by his property is a study in converting urban form into art, and perhaps suggests the urban future of more than one city.

For the graffiti artists have offered a philosophical change-up that should not be overlooked. The conversation about postmodern art seemed to have reached a dead end some time ago; artists first threw out figure, then form, then color, then the frame, and then wandered into their process itself as an art form. Graffiti artists begin with the end: their signature, or tag, becomes the art, and by using this as the starting point, and the city as their canvas, they unconsciously offer a new beginning to think about the relationship between art and the city.

We must accept the challenge that graffiti artists offer us; we must confront this takeover of the physical urban form and push back. While street art is a fresh, interesting language, it should not be mistaken for the language of knowledge or power. Instead it is the language of a city that is weak and divided. We must hear what graffiti says to us as a society, and retake our physical urban character as a common, broad place that offers security, sacred, and special places for all citizens, not just the privileged few who, by choice, enter the physical realm. By ignoring graffiti art, we postpone our treatment of the urban malaise. By confronting it and bringing it into the mainstream, we can better treat our urban condition and improve the city as a dwelling place for the benefit of all.

See related Grits posts:

• Toward a restorative graffiti policy
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Invited graffiti: Solution or enabling for unwanted tags?
• Graffiti solutions: A cost-benefit analysis
• Grading graffiti? What do youth want?
• 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
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
• Austin lags on important third component of graffiti policy

MORE: See examples of permission walls and commissioned graffiti in Austin here and here.

Science undermining 'shaken baby syndrome' cases

So-called "shaken baby syndrome" is another area where it increasingly appears that flawed forensic testimony helped secure numerous false convictions over the years, particularly among parents and child care workers: According to an essay by Maurice Possley at The Crime Report:

A soon-to-be-published analysis of shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimer presents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.

Tuerkheimer, who is joining the DePaul University College of Law faculty on July 1, points to new research in the United States and abroad showing that a variety of circumstances, including something as seemingly innocuous as falls from a short height, can cause fatal head injuries that appear very similar to injuries routinely diagnosed as SBS.

If research shows that the physical conditions that once automatically resulted in a prosecution could actually have been the result of an accident, the implications are enormous.

“Given the scientific developments…we may surmise that a sizeable portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent,” Tuerkheimer writes, adding that a far greater number of defendants among the group were likely convicted on legally insufficient evidence.

“While we cannot know how many convictions are ‘unsafe’ without systematic case review, a comparison of the problematic category of SBS convictions to DNA and other mass exonerations to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena,” Tuerkheimer writes.

Keith Findley, a clinical professor of law and co-director of the Wisconsin Innocence Project, who headed Audrey Edmunds legal team, said, “The system is sending people to prison based on findings of beyond a reasonable doubt when in many of the cases the only evidence is medical evidence on which many medical experts…have a substantial doubt.”

He added, “This is not about being opposed to child abuse prosecutions. No critic of SBS theory wants anyone to get away with child abuse, but when the diagnosis becomes the entire basis for the prosecution, that’s problematic.”

Read the full story for more detail on why such testimony has come under fire. Convictions are still being obtained based on this forensic theory even though “there is no consensus among medical professionals as to whether the symptoms that have traditionally been attributed to SBS are necessarily indicative of intentional shaking.”

Like arson, this is a crime for which people can be convicted based solely on "expert" forensic testimony. But the underlying tenets of "shaken baby syndrome," which have been relied upon in court for many years, have now been widely disputed by credible, scientific research:

Dr. Bruce Gross, a Fellow of the American College of Forensic Examiners, writing earlier this year in The Forensic Examiner, noted that studies have called into question the SBS triad as the result of only violent shaking. “The prevailing notion is that the injuries ‘characteristic’ of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two –story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1-4 feet.”

Gross added, “In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms [retinal hemorrhage, bleeding in the brain and brain swelling] lacks scientific certainty.”

Last year I got to hear a presentation about some of the biomechanical simulations that appear to undermine the traditional shaken baby diagnosis. Bottom line: the symptoms that supposedly characterize SBS could also have been explained by accidents or birth defects, but doctors instead testified it could only have happened through malicious shaking. These conclusions were based on speculative theories that, by their original authors' own admission, relied on circumstantial guesswork rather than experimentation and proof. Today more experimentation has been done and the original SBS theorizing would never hold up to peer-reviewed scrutiny. But the power of precedent continues to give such theories a foothold in the courtroom.

When you think about it, the death of a baby is already such a terrible event, how much more would it compound the tragedy to then falsely accuse a parent or child care worker of homicide? But to judge by the latest research, that appears to be exactly what's happened in many of these cases since the diagnosis was first popularized in the '70s.

The shaken baby cases provide further evidence, if more were needed, that innocent people can be convicted in many more circumstances than just those where DNA is available to definitively exonerate a defendant.

Judge, not AG, responsible for TYC prosecution delays

Before deciding on the new comment policy announced at the end of this post, I was initially hesitant to blog about the minor kerfuffle last week when the Texas Civil Rights Project criticized the Attorney General for failing to yet take to court the West Texas sex-abuse cases that spawned the Youth Commission's recent troubles. It seemed like a trivial, non-story based on outside speculation, not any new event or information, so my impulse was to ignore it.

But then the press conference spawned a reaction story in the Midland Reporter-Telegram trying to portray the delays as an indication that the state's case was weak and couldn't really be proven. That BS deserves a response. We'll find out what the state can or can't prove when they get to court (at one point I was told by someone in a position to know that there was DNA evidence in one of the cases), but it's silly to claim the delay was because the case was weak when the AG has been trying to get the judge to set the case for trial for more than a year.

There hasn't been a trial in the West Texas State School cases for exactly one reason: District Judge Bob Parks won't set a trial date. According to a press statement the AG put out reacting to TCRP's press conference:

This office has made multiple attempts to advance these prosecutions and has informed the court that it is ready for trial. Nonetheless, despite the State's request that the trials proceed, the court has not set trial dates.

At the State's request, Defendant Brookins was set for trial in April, 2008. That trial date was delayed by the court after the defendant's lawyer was arrested. After months of repeated urging by the State, the court finally set a hearing in December, 2008 and assigned the defendant a lawyer. Since then, the State has repeatedly requested that the court set a firm trial date but the court has not yet done so.

Defendant Hernandez was set for trial in August, 2008. In late July, the court informed this office that the case would not proceed as scheduled. Since then, prosecutors with this office have contacted the court on at least five occasions--most recently May 28--in an attempt to obtain a trial setting.

After nearly two years of unnecessary delay, these cases need to proceed to trial. Although this office has requested trial dates on multiple occasions, the court has not set the trial dates. Nonetheless, we will continue to pursue this matter and will continue using all available legal means to advance the cases to trial.

The AG can't force Judge Parks to set a trial date, however shameful and embarrassing it may be for the judge to drag this out (much like the local District Attorney Randy Reynolds did so notoriously for so long). I understand TCRP chief Jim Harrington's frustration that the cases haven't gone forward, but he's blaming the wrong elected official.

Between Judge Parks and Randy Reynolds, one gets the sense that Ward County, Texas is about the most defendant-friendly venue in the nation for those accused of child sexual abuse.

Ironically, precisely because of these delays, in this year's Sunset bill the Lege authorized offenses at TYC facilities to be tried in Travis County (or the county where the offense was committed), but the language wasn't retroactive so the AG cannot seek to remove this case to the capital. Going forward, however, there are many instances where DAs or grand juries in small communities simply won't pursue charges against corrections officers, so the ability for TYC's Special Prosecutor to move cases to Austin should go a long way toward restoring accountability and give the public more confidence that staff-on-youth crimes at TYC won't go unprosecuted.

Note to TYC readers: With this post, this blog begins a new policy of disallowing comments on TYC-related strings. By all appearances, too many current and former TYC employees can't handle the privilege without abusing it and, not being their momma, I don't have time, motivation nor desire to constantly monitor them for obscenity, libel and off-topic attacks on co-workers by name, which is the specific misbehavior that finally spurred this change. Off-topic comments about TYC left on other strings will be removed. TYC employees have begun a bulletin board to discuss issues related to facilities and personnel. I'd encourage them to use it and hope it becomes a robust alternative to using Grits' comments section for the same purpose. We ain't doing it here anymore - at least for now.

I apologize to those commenters who were not abusing the TYC comment threads and regret that a few people's narcissism and lack of self-control ruined the forum for everyone.

SCOTUS DNA ruling not a problem for Texas, but maybe for Sotomayor

A number of readers have asked my views on last week's Supreme Court decision in the Osborne case out of Alaska where a slim, 5-4 majority ruled there is no constitutional right to postconviction DNA testing.

My first, admittedly parochial thought: Texans needn't particularly care. We have strong statutory access to post-conviction DNA testing in Chapter 64 of the Code of Criminal Procedure. According to media accounts, 46 states have DNA testing statutes on the books, and Texas has one of the best.

However, in the big picture, at least on the margins, the Osborne decision, as the Washington Post put it, "increased the risk that the wrongly convicted could be kept behind bars. Michael Landauer at the Dallas News Death Penalty Blog laid out the crux of the issue facing the court:

I'm torn. ... I have a hard time thinking it's OK to limit any evidence from being submitted that might prove guilt or innocence. Why would we do that? It drives me nuts that the appeals process is treated by some as a chess match instead of a search for truth. Once the jury speaks, that search ends and it's all about tactical, constitutional arguments, it seems.

Still, I would hate to see people who are so clearly guilty use this as a ploy to sorta roll the dice. We saw on Dallas DNA, the show about exonerations in our county, that some people really do that. They waste the courts' time just for kicks.

Landauer captures the issue precisely: This is basically about the convenience of judges and concerns about clogged court dockets vs. the right of innocent people to dispute their sentence, with a little snooty judgmentalism thrown in toward those who would "roll the dice." I replied thusly in the comment section:

Yes, on Dallas DNA and in some other instances, people who, in hindsight (after DNA fingered them), were clearly guilty tried to "roll the dice." They failed, and while their actions constitute an annoyance, it's not an intolerable one balanced against the large number of recent exonerations.

The problem is, we can't tell who is "clearly guilty," for sure, anyway, until AFTER the DNA test. Some people former Dallas DA Bill Hill thought were "clearly guilty" were granted DNA tests under Craig Watkins and turned out to be innocent!

As for those who would "roll the dice," there are already provisions in Chapter 498 of the Government Code to punish convicts for frivolous lawsuits by forfeiting their good time. (A bill to ramp up those penalties this session passed out of committee in the House but failed to receive a floor vote.) In practice, though, that seems like a different issue: It's simply untenable to deny actually innocent people access to a forensic test that could prove their innocence just because guilty people might ask for them, too.

How commonly do guilty people seek DNA testing? I've never seen a quantitative analysis, but this spring Mike Ware of the Dallas DA's Criminal Justice Integrity Unit told me that, among their DNA testing cases, the results so far had panned at roughly one-third each: Definitively innocent, definitively guilty, or inconclusive. (An example of inconclusive results might be if the DNA does not match but there were multiple suspects so the defendant can't be conclusively eliminated. Nobody knows how many different people's DNA might be on a sample until they run the tests.)

At the end of the day, if you do the tests (as Texas law requires), guilty people gaming the system will be identified and won't receive relief. However, if the state doesn't allow the test, the harm comes specifically to innocent people who've been wrongly convicted. Whatever the legalities, from a political perspective that's an insupportable stance.

The Dallas DA's office is an exception, both in Texas and nationally. If the DNA might be probative, they support requests for DNA testing through their Conviction Integrity Unit pretty routinely, even teaming up with my employers at the Innocence Project of Texas to vet all their old DNA cases, a process that's now nearly complete.

Elsewhere, though, for the most part prosecutors react defensively to requests for DNA testing because it implies their office might have got it wrong. IMO this prosecutorial impulse to vigorously oppose post-conviction DNA testing is misguided and runs counter not only to the interests of justice but the DAs' and judges' political interests. It opens them up for legitimate criticisms they cannot counter if someone they denied DNA testing to someone who was later proved to be innocent. In such situations, "I'm sorry" really doesn't cut it as a response.

Which brings us to our case study of the day on how denying post-conviction DNA testing can come back to haunt you. Go read this excellent piece from Politico by Jeffrey Deskovic, an innocent man falsely convicted of murder and rape at age 17 who was denied DNA testing by Judge Sonia Sotomayor during his habeas appeal. He spent six extra years in prison because of her decision, all for a crime DNA later proved he didn't commit. The headline of Deskovic's piece: "Sonia Sotomayor's 'empathy' isn't all it's cracked up to be." The whole article is worth a read, but these are the main conclusions he draws:

Despite Sotomayor’s rhetoric, her ruling in my case showed a callous disregard for the real-life implications of her rulings. She opted for procedure over fairness and finality of conviction over accuracy. Many of the victims of wrongful convictions serving long sentences had exhausted their appeals long before they were exonerated. In how many of those cases did Sotomayor vote to refuse to even consider evidence of innocence?

My case is far from unique in an age when the reality of wrongful convictions is well-established. We face the prospect that Troy Davis, an innocent man on death row in Georgia, faces imminent execution, absent intervention by the high court or by President Barack Obama.

I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

Judge Souter, who Sotomayor will replace, held in Osborne that there is not a constitutional right to DNA testing, which judging by her ruling in Deskovic's case appears to also be her position.

RELATED: Picking Sonia.

MORE: See an excellent analysis of this case from national Innocence Project staff attorney Nina Morrison.

Governor Perry's 2009 Criminal Justice Vetoes

Governor Perry announced this year's vetoes yesterday, although, since so much criminal justice reform legislation died in the waning days of the session thanks to partisan bickering over voter ID, not many bills that concerned this blog were even available to earn the Governor's wrath. Several of the vetoes I agreed with, while, as always, some seemed inexplicable even in the face of the Governor's written explanations.

Here are the criminal justice-related bills Governor Perry vetoed (links on the bill numbers go to Perry's veto statements):

Bad CPS bill goes down
SB 1440 by Watson/Madden is the bill discussed here and here that would have expanded CPS authority to seize kids for questioning without first notifying their parents or showing "good cause." (UPDATE: More from the Lone Star Times, which notes that "Perry had received 17,373 calls and letters against the measure and 455 supporting it.") However, those who fought the bill have some work to do in the interim to influence how similar legislation may look next session. In his veto statement, Perry concluded:

I am directing DFPS, through its parental advisory committee, to study the effect of the Gates decision on the ability of the department to appropriately enter a residence and, if necessary for the protection of the child, to transport the child for interviews in a neutral location. I am also directing DFPS, through its parental advisory committee, to develop and recommend statewide procedures to follow when seeking court orders to aid investigations, while protecting the rights of parents and families.

No tinkering with parole mechanics
SB 1206 by Hinojosa/Edwards would have authorized TDCJ to release inmates when they'd completed conditions for parole specified by the Board of Pardons and Paroles. Perry vetoed the bill because he said it usurped the authority of the BPP. However, he put the onus for getting offenders out the door more quickly back on the parole board, declaring in the veto statement:

But because I appreciate the goal of Senate Bill No. 1206 to not hold inmates longer than necessary, I am directing the Board and TDCJ to work together to ensure that offenders are not held for extended periods after successfully completing a rehabilitation program required by the Board as a condition for parole. They must set up procedures that provide for TDCJ to notify the Board of the successful completion of parole release requirements so that the Board may act to effect the release to parole.

If you're that 'vulnerable,' stay the hell off the road
SB 488 by Ellis/Harper-Brown would have creaed a new category called "vulnerable road users," basically defined as everybody not in a car, and punish drivers for getting too close to them. Perry vetoed it, rightly noting that plenty of protections are already in place. (UPDATE: See the Statesman for quotes from proponents criticizing the veto.) I agree the state has a responsibility to make cycling and pedestrians safer, but IMO that's best done through investments in infrastructure and engineering, not the endless creation of new traffic offenses.

Couples Only: Pardon authority bill needed companion resolution
SB 223 by West/Thompson would have authorized the Governor to give pardons in cases involving deferred adjudication. This was vetoed not because the Governor did not want the new power, but because a required constitutional amendment that needed to accompany the legislation did not pass because of the voter ID meltdown.

Perry: Failure to snitch on barratry shouldn't be criminal
SB 3515 by Dunnam/Carona would have created a new criminal offense specific to attorneys of failure to report barratry by other lawyers. Perry vetoed the bill because "would criminally punish a lawyer who had not committed barratry for the barratry committed by another person, and would, therefore, make a lawyer not engaged in criminal conduct subject to criminal penalties because of the criminal conduct of others."

Where's the 'swap' in land swap bill?
HB 3202 by Bonnen/Jackson transferring ownership of 332 acres owned by TDCJ to Brazoria County. In a surprise move that took the bill sponsors offguard, Perry vetoed the bill "because it does not require the payment of fair market value for the land, does not exchange land for other real property and does not involve land that a local government had donated to the state for construction of a prison. In fact, House Bill No. 3202 transfers land that has been held by the state since 1918 to a county without providing any compensation to the state for the loss of the land."

No loan assistance for prison staff
HB 518 by Kolkhorst/Van de Putte would have provided student loan assistance to correctional officers attending Sam Houston State. Perry said they shouldn't be specifically targeted and instead "the state should focus on fully funding the four main programs to make financial aid available to more students." So the state's chronically 3,000 guards short-staffed but the Lege declined to increase pay to market rates and the Governor vetoed the only substantive increase to prison staff benefits? Geez! Message to TDCJ staff: "Lump it and like it."

No leeway, however modest, on sex offender registration
HB 3148 by Smith/West would have allowed those convicted of indecency with a child for an offense committed when they were under 21 in "Romeo and Juliet" type cases to petition the court to keep them off the state sex offender registry. While acknowledging that this might happen only under "very limited circumstances," that a judge would still have to sign off, and that "other provisions of the criminal code provide some protections against very young victims being re-victimized," Perry vetoed the bill anyway, declaring, " I am not willing to take that gamble with the lives of young Texans."

UPDATE:

Early education also a veto victim
Governor Perry also vetoed the early education package discussed here on Grits among his line item budget vetoes (see the full budget proclamation [pdf]). According to the Houston Chronicle:

The governor’s veto of a $25 million pre-K expansion program startled supporters, including Rep. Mike Villarreal, D-San Antonio, co-author.

“I’m saddened and astonished,” he said.

Perry said $25 million appropriated for the program should be used to expand the number of students served by the existing pre-K grant program.

Judge Sam Kent impeached by US House; Keller's removal hearing moved to SA

Judge Sam Kent's impeachment by the US House of Representatives is not surprising news, but certainly welcome.

Meanwhile, I'm disappointed to learn Court of Criminal Appeals Presiding Judge Sharon Keller's removal hearing on August 17 will take place in San Antonio, not Austin - mostly because I'd hoped to attend and cover the spectacle. We'll see; perhaps that's still possible.

TDCJ population still creeping up, but tracking estimates

Here's the total number of people sent to Texas prisons and state jails on felony charges in FY 2008 from the six largest Texas counties and the number of prisoners released back to each of them, according to the Department of Criminal Justice annual statistical report (pdf):

Sent to prison:

• Harris: 15,276
• Dallas: 7,405
• Tarrant: 5,363
• Bexar: 4,669
• Travis: 3,143
• El Paso: 1,164

Released from prison:

• Harris: 14,654
• Dallas: 7,564
• Tarrant: 5,185
• Bexar: 4,550
• Travis: 3,084
• El Paso: 1,147

Overall, Texas sent more people to prison in FY 2008 than it released according to the report: 74,283 people entered TDCJ last year, while 72,002 were released and sent home (out of 156,126 on hand as of Aug. 31, 2008).

TDCJ's population actually maxxed out at 158,217 on May 1, 2008, but by August that number had declined to 156,126. That's about what LBB projected (pdf), to give them credit (they'd estimated 156,137, which is pretty darn close). But the rubber will meet the road this year when LBB predicts that, by the end of FY 2009 (in August), TDCJ's population will have declined to 154,618, so it'll be interesting to see how closely their predictions hold when this year's numbers come out.

Department of "Public Safety" or "Collections"?

According to a reader who attended, at yesterday's meeting of the Public Safety Commission there was a lengthy discussion, prompted by Commissioner Carin Barth, of the Orwellian-named "Driver Responsibility" program. Rather than criticize the draconian, regressive nature of the fee, though, which was created during the 2003 budget crisis expressly as an alternative to property tax hikes, Commissioner Barth wanted to know why there was only a 30% collection rate. (For the current fiscal year, the board was told, DPS has collected $170 million.)

That's easy enough: This is an administrative fee piled on top of the already-steep criminal penalties for a no-insurance ticket or DWI stop. It's quite high and stretches out over three years, in some cases at a cost of $1,000 per year or more. In the case of no-insurance, in particular, the main reason people aren't insured is usually cost, not criminal malice. So piling on needless extra cost actually reduces the likelihood drivers can afford insurance and arguably reduces public safety. After a certain point, there is a diminishing return on the effectiveness of high fines and this fee long ago crossed that threshold.

All of the commissioners expressed dissatisfaction with the collection rate, but none expressed any reservations about the program itself -- though they did note that several legislators are not supportive of the program.

Drivers License Division Chief Judy Brown noted that the program was modeled after New Jersey's ("why we would want to emulate ANYTHING about New Jersey is anathema to me," my informant intones as an aside) -- and she said the NJ program had tools at its disposal which are not available to the DPS, particularly the ability to put liens on people's homes and to garnish their wages. (!) "Don't be surprised if DPS seeks statutory authority for this next session," I was told.

The vendor in charge of collections makes automated calls to non-payers and sends out dunning letters on the Department's letterhead. (Chief of Audit & Inspection Farrell Walker committed a gaffe of sorts when he referred to these as "annoyance calls" and was gently upbraided for it by Commissioner John Steen.) The Commission appears to favor increasing the frequency of the "annoyance calls" and dunning letters, and reporting non-payers to the credit bureaus. In fact, there's some sentiment for wanting to review the contractor's performance. Chairman Allan Polunsky specifically asked staff whether there is a termination clause in the contract. The contractor will be summoned to attend the next PSC meeting.

It sounds like the PSC is focused on the wrong problem regarding driver responsibility fees. I'm surprised to hear commissioners weren't instead discussing the new indigency program mandated by the 81st Legislature in DPS's Sunset bill. Instead they're focused on mulcting more money from already-punished Texans who can't afford it or else busting them with the credit agencies. A little tone-deaf to the zeitgeist of the times, don't you think?

Anyone who'd like to educate the PSC about the Driver Responsibility program may want to mark their calendars for the third Thursday in July when the commission meets again.

RELATED:

• On the limits of the justice system as tax collector
• 70% of 'Driver Responsibility' fees go unpaid
• Bad TX law fills road with unlicensed drivers, jails with non-crooks
• More than 10% of Texans currently wanted by police
• Driver Responsibility fee had unintended consequences, say prosecutors

"Keystone Kops at the Crime Lab"

The title of this post is the headline from an excellent piece in Miller-McCune about problems at forensic crime labs, in which naturally the Houston crime lab figures prominently. But they also mentioned another Texas connection:

In West Virginia, criminalist Fred Zain showed just how much damage a compromised police forensics laboratory can cause. In the 1970s, Zain, a gun-toting West Virginia State Police officer, was assigned to the state crime laboratory as a serologist. He entered the job with minimal training, a corner-cutting attitude and a pro-prosecution bias. If the evidence appeared weak against a defendant whom Zain considered a sleazeball, the criminalist made the evidence look stronger by exaggerating or falsifying test results.

For many years, prosecutors did not publicly question Zain's competence or honesty; after all, he told them what they wanted to hear. Many defense lawyers, jurors and judges lacked the scientific knowledge to question Zain's results. As for Zain's laboratory colleagues, some maintained ignorance, while others suspected wrongdoing but feared the consequences of whistleblowing. ...

By 1993, the extent of the damage done by Zain had become so evident that a prosecutor petitioned the Supreme Court of West Virginia, requesting an investigation. The justices appointed James O. Holliday, a retired judge, to lead the inquiry.

Holliday filed a report that had to horrify anybody who believed in the integrity of the justice system. At least 134 cases relying in significant part on Zain's findings needed re-examination. In the end, Zain's misconduct led directly to the release of five West Virginia inmates and one inmate in Texas. (Zain had moved to Texas in 1989 where he worked in the Bexar County crime laboratory, [emphasis added] which serves greater San Antonio.)

Criminalists traveling from outside West Virginia to conduct a scientific inquiry for Holliday determined that Zain was guilty, among other misconduct, of:

• Reporting "scientifically impossible or improbable results"
• Stating that "multiple items had been tested when only a single item had been tested"
• Offering "inconclusive results as conclusive"
• Failing to report conflicting results
• "Implying a match with a suspect when testing supported only a match with the victim"
• "Repeatedly altering laboratory records"

Holliday concluded that evidence offered by Zain "at any time in any criminal prosecution should be deemed invalid, unreliable and inadmissible."

What Texas traffic enforcement can teach the national healthcare debate about "individual mandates"

To veer slightly off topic for a moment, I wanted to record an observation about the national health insurance debate presently going on in Congress, and in particular the move to create an "individual mandate" for the uninsured requiring them to purchase health insurance.

Texas and many other states have already tried "individual mandates" for auto insurance, and the results have been abysmal: About 25% of Texas drivers have no auto insurance (roughly the same percentage of people that currently lack health insurance).

When Texans are ticketed for no insurance, they face steep fines which, rather than encouraging compliance with the law, frequently sink the uninsured even further into a financial hole and make it less likely they'll be able to afford insurance. Yet, at the same time, the state invests virtually zilch in mass transit so as a practical matter, it's difficult bordering on impossible in many areas to work and survive without a car.

Thus the functional effect of an "individual mandate" policy is to criminalize poverty, or at least that's been the case with auto insurance. I'd hate to see a health insurance model follow down the same, failed path.

Madden expects veto of bad CPS bill

According to an action alert from the Free Market Foundation urging Governor Perry to veto SB 1440 expanding CPS powers, one of the bill's co-sponsors, Jerry Madden, now think last-minute amendments were a "mistake" and he expects Governor Perry to veto the legislation. I hope he's right. All the Governor's vetoes must be announced by Sunday.

RELATED:

• Conservative veto call for expanded CPS powers growing louder
• Bad CPS bill deserves a good veto

Police use of unmanned spy drones won't expand beyond Houston, yet

Here's a curious little story out of Collin County about the Sheriff's Department being turned down by the Federal Aviation Administration to use federal stimulus money to purchase "unmanned drones," for heaven knows what purpose. According to the McKinney Courier-Gazette (June 16), Sheriffs Office "officials said the department withdrew their request application from the Collin County Commissioner's Court to seek a federal stimulus grant to purchase the devices because FAA regulations have listed the majority of Collin County's skies as restricted airspace."

According to this source, however, it's not just that Collin County is restricted space but the FAA simply does not approve unmanned drones for routine law enforcement use outside of a couple of pilot programs. "Despite pressure from some law enforcement agencies, the FAA is holding firm to its policy against routine use of unmanned aerial vehicles. "There is nothing to our knowledge and no UAS technology at this time that would allow unmanned aircraft to meet the same 'see and avoid' [regulatory technical] standard that manned aircraft have to operate under," FAA spokesman Les Dorr recently told GovTech.com (06/09)

The Courier-Gazette described similar barriers for Collin County:

Chris Dancy, a spokesman for the Aircraft Owners and Pilots Association headquartered in Frederick, Ma., said he isn't aware of any police agencies or sheriff's department who have fully implemented the technology because of the same problem.

He said the vehicles have to be under a constant monitor while they are in the air and don't have the technology to sense other objects in their airspace.

"All (unmanned aerial vehicles or UAVs) all lack sense and avoid capability," Dancy said. "A lot of work is being done on that in the aviation industry and our association is working on ways to safely integrate UAVs into airspace so they can share the same space with manned aircraft safely. We're not oppose UAVs. We're just not able to operate them safely in the same airspace with manned aircraft."

New advancements in technology has made UAVs smaller and more economical, but even something as small as a bird can cause problems, Dancy said.

"What a lot of law enforcement agencies have been looking at are fairly small lightweight UAV systems that would operate in relatively low altitudes," Dancy said. "The problem is if you've ever seen the affects of a bird strike on a small or large aircraft and when you have objects moving at such fairly high speeds, it doesn't take lot to cause significant damage to any type aircraft."

In their coverage of the topic, the Dallas News reported that:

The county was pursuing the plans knowing the FAA hadn't approved the use of the aircraft in heavily populated areas. That agency has temporarily allowed Houston and Miami to fly drones as part of a study of how their police departments use them.

I'd heard Houston was testing unmanned drones, but didn't realize the study was still going on. I wonder what they're using them for? I can see uses like search and rescue assistance after Hurricane Ike when the tool could have been incredibly helpful. But I also see many problems with using the technology in service of routine law enforcement. It's obvious that there are powerful military-industrial complex interests with big stakes in expanding markets for these drones.

In addition to safety concerns, unmanned drones raise issues of modern technology bumping up against antiquated interpretations of the Fourth Amendment and American privacy rights. Current case law has a "plain sight" exception to the Fourth Amendment, but plain sight takes on a different connotation when, in an urban area, police fly unmanned spy drones over fenced backyards or conceivably even use zoom lenses to peer into windows. That's "plain sight" of a decidedly not so plain variety (or rather, of a "plane" variety"), which raises questions traditional search and seizure law finds itself particularly ill-equipped to answer.

Criminologists: Death penalty does not deter

Via Capital Defense Weekly, I was interested to see this new survey of top US criminologists (pdf) on the question of whether the death penalty deters murder, a debate refocused by several much-disputed studies (mostly by economists) in the last six years claiming to find a deterrent, after "scores" of studies by criminologists over previous decades had reached the opposite conclusion. The authors analyze recent studies on death penalty deterrence and follow up by replicating a survey of criminologists published 12 years ago, before the recent econometric studies were published.

Despite these new studies, however, most criminologists (88.2%) still "do not believe the death penalty is a deterrent," researchers found, while 87% said abolishing the death penalty would have no effect on murder rates.

A whopping 90.9% thought it was largely or totally accurate that "Politicians support the death penalty as a symbolic way to show they are tough on crime," but 89.5% said it was largely or totally inaccurate that "The death penalty significantly reduces the number of homicides."

The empirical evidence contradicting the deterrence thesis is quite strong. For example, in 2007, the authors note, the homicide rate in states with active death penalty statutes was 42% higher than that of non-death-penalty states. Read the full paper (pdf, 20 pages with appendices) for much more detail and references to research on both sides of the debate.

MORE: From the Dallas News Death Penalty Blog.

Austin PD traffic stops up 30% last year, more than 1 in 20 result in arrest

How can a one-year, 30% increase in traffic stops by Austin police be justified?

I could scarcely believe my eyes when I examined the City of Austin's most recent racial profiling report (pdf, published 3-2-09), and read that the number of traffic stops increased to 230,949 in 2008 from only 178,087 in 2007. Reasons given in the report for the increase were:

1. patrol being near full staffing;
2. the motors officers stopped taking routine calls for service and went back to working traffic enforcement full time;
3. CompStat implementation that assigned officers to traffic enforcement in crime hotspots to increase visibility and proximity to crimes; and
4. the Home for the Holidays initiative that added over 4,000 additional hours of sworn working on traffic enforcement.

But those are just tactics used to implement the APD administration's policies. In the big picture, this tells us Austin's new chief is dramatically shifting resources toward routine traffic patrol and away from other crimefighting tactics. At 52,000 additional traffic stops, that's a major, one-year re-allocation of staffing resources.

Though officials will certainly claim the reason is public safety, it's hard not to suspect that revenue generation must be at least part of the motive.

Another eye-popping figure: The number of consent searches at traffic stops increased a whopping 106%, but that figure is deceptive because the overall numbers were small. In 2007, APD conducted just 211 searches, while in 2008 the number jumped to 435. The number of "consent searches" in Austin has been much lower in recent years after the agency implemented a policy of requiring written consent if an officer didn't have probable cause to search.

Still 106% is far beyond a statistically significant increase. My hypothesis to explain it (more in-depth research would be required to tell for sure): The jump is likely attributable to the CompStat tactic described in #3 above of over-enforcing traffic laws in violent crime hotspots. After all, this approach presumes that these are really "pretext stops," that the real purpose of pulling people over is as an excuse to look for evidence of other crimes.

In the big picture, though, the vast majority of Austin police searches at traffic stops in 2008 - 11,637 of them, to be exact - were "non-consent" searches. Of those, 15.8% were based on safety frisks, 38.9% were incidental to arrest, and 25.6% were based on probable cause.

In 2008, Austin PD arrested someone at more than one out of every 20 traffic stops - at 11,353 traffic stops in 2008 representing 5.3% of all APD traffic stops. The top three reasons for arrests:

• 5,388 for outstanding warrants.
• 3,486 because the driver was intoxicated.
• 1,002 because the driver was in possession of illegal drugs.

Arresting folks for outstanding warrants isn't too difficult given that more than one in ten Texas drivers have them, mostly because traffic fines and fees have become so steep many people cannot pay.

An additional 2,740 stops could have resulted in arrest, but the officers used their discretion to write a "field release citation" instead, which reduced considerably the number of new entrants to jail.

Pedestrian stops by APD also increased by 29% from 2007 to 2008, to 18,111. In this area, the use of "field release citations" was especially pronounced - the procedure was used 7,673 times, or in 42.4% of all pedestrian stops. An additional 20.7% of pedestrian stops (3,742) resulted in a custody arrest.

A 30% increase in traffic stops seems hard to justify. Sure, it helps fill the city coffers, but there's an opportunity cost: What other areas are being understaffed while APD officers write 30% more tickets or play the role of bill collector/enforcer for outstanding traffic fines?

Codifying journalists' privilege

One piece of hotly debated legislation I did not track this session (but which particularly concerned many of our prosecutor friends), was HB 670 by Martinez-Fischer creating a qualified privilege for journalists not to testify in criminal cases. The bill was signed by the Governor last month and took effect immediately. Here's a summary of the bill from the Freedom of Information Foundation:

The law says that any body with authority to issue a subpoena cannot compel a journalist to testify or produce or disclose in an official proceeding any confidential or nonconfidential information, document or item obtained or prepared while acting as a journalist. The source of any information, or document described in the law could not be subpoenaed with some exceptions.

It provides that, after notice and an opportunity to be heard, a court may compel testimony or require the journalist to produce any information or document or the source if the person seeking it makes a clear showing that: all reasonable efforts have been made to get the information from an alternative source, the subpoena is not overbroad, unreasonable or oppressive and limited to the verification of published information, and the subpoena is not being used to obtain "peripheral, nonessential or speculative information."

The information has to be relevant and essential to a case. It must be central to the investigation or prosecution of a criminal case based on something other than the assertion of the person seeking the subpoena and reasonable grounds exist that a crime has been committed.

A journalist would have to testify if he or she were an eyewitness to a crime. Testimony would be required if the source was someone who had participated in a violent crime and the person seeking the testimony had exhausted reasonable efforts to get the information from some other source. Testimony would be required if it was reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.

An application for a subpoena would have to be signed by a district attorney or county attorney. Timely notice would be required and an order would have to include "clear and specific findings" on which the court relied in issuing the court order.

House Speaker Tom Craddick allowed a similar bill to come to a vote in 2007, but it was late in the session and a Republican legislator shot it down on a technical point of order.

Those caveats seem to address all of the knee-jerk critiques that the bill will hinder prosecutors from securing convictions. The biggest limitation may be to say prosecutors can only seek journalists' files for the "verification of published information," which keeps the state from undertaking fishing expeditions in journalists' story files.

The bill as written would apply to many bloggers, by my reading, when they're functioning in a journalistic capacity, categorizing as journalists those who are:

earning a significant portion of the person's livelihood by obtaining or preparing information for dissemination by a news medium or communication service provider; or ... serving as an agent, assistant, employee, or supervisor of a news medium or communication service provider.

I am arguably both an agent and a supervisor of this blog, for example, which would be categorized as a "news medium" under the bill's definition section.

At the end of the day, though, I doubt this bill will make a big difference as a practical matter. Most Texas cases involving journalists held in contempt for refusing to supply testimony have come in murders or other serious cases. In such instances, HB 670 doesn't forbid subpoenaing journalists to testify, it just creates a few minimalist hoops the state must jump through (essentially performing due diligence) before it can force them to do so. We'll have to wait and see whether, in practice, the legislation functionally provides journalists significant new protections.

Hays County will use expanded citation authority to relieve jail overcrowding

After the Legislature approved new authority in 2007 to give citations instead of arresting for petty misdemeanors - a move aimed at giving counties new tools to react to rising costs of jail overcrowding - only a handful of agencies initially embraced the idea. Increasingly, though, realities of jail overcrowding are trumping political concerns and even relatively conservative jurisdictions are beginning to issue citations for nonviolent B misdemeanors.

According to the Austin Statesman, the Hays County Sheriff (south of Austin) will begin using the citation authority created in 2007 as a stopgap while Sheriff Tommy Ratliff pushes a new jail: "Ratliff said his office's new program to cite and release offenders for some Class B misdemeanors such as criminal mischief is aimed at" bringing the number of prisoners down.

Dallas now uses this authority, and this year the City of Austin finally began implementing the new policy. Perhaps a few dozen other agencies around the state, big and small, are using it, too.

Law enforcement organizations in Harris, Bexar and Smith counties, by contrast, along with many others, also face serious jail overcrowding dilemmas, but local officials have refused to allow expanded use of citations to relieve the burden. As budgets get tighter, though, I suspect more agencies will follow Hays County's lead.

See prior, related Grits posts:

• Austin PD will finally implement citations for petty misdemeanors
  
• Smart policies can boost police coverage even in tight economy
  
• Long booking times a strong argument for police using new citation authority
  
• APD finally implementing B misdemeanor citation policy
  
• Police union backs using citation authority at Austin PD
  
• With safety costs rising, why won't Austin PD use new citation authority?
  
• Nuts and bolts of citations for low-level misdemeanors explained by Travis Sheriff's Office
  
• On the source of volitional jail overcrowding in Bexar County: Why solve a problem when you can create one?
• Tyler officials should listen to voters, use new tools to reduce jail overcrowding
  
• Sheriffs more likely than PDs to welcome new arrest discretion
  
• Jefferson County works out kinks with new cite and summons authority
  
• How one Texas county will take advantage of new law to reduce jail overcrowding
• HB 2391 could save Bexar taxpayers $10,000 per day
• Cite and summons for low-level offenses could free up jail space
• Texas Lege approved new tools to reduce jail overcrowding, if police can change their thinking

Tazing Great Grandma

I'm a little late to the party on this one, but a Travis County Constable's deputy made headlines by tazing a 72-year old great grandmother last month after she dared him to - essentially for non-compliance. A flurry of media attention accompanied the release last week of the dashcam video. According to KEYE-TV:

Deputy Chris Bieze pulled over Kathryn Winkfein on May 11th at 2pm for speeding on Highway 71 and Bee Cave, but the Great-grandma refused to sign the ticket.

"Take me to jail, go on and take me to jail," she yelled at Deputy Bieze.

Winkfein got out of the truck and walked close to the line separating the shoulder from the traffic zipping by.

"Give me the (expletive) thing, and I'll sign it," she yelled about the ticket.

Then came the push.

"You're going to shove a 72-year-old woman," Winkfein screamed?

Sgt. Major Gary Griffin said Bieze moved Winkfein to prevent her from stepping out onto the busy and dangerous stretch of highway.

"He didn't push her into a ditch tumbling down like a rock, he moved her," he told CBS 42’s Katherine Stolp.

After Bieze repeatedly told Winkfein to step back or get tased, the 72 year old dared him to do it.

"He told her nine times, nine times,” Sgt. Major Griffin exclaimed.

“Go ahead tase me," Winkfein told Bieze. "I dare you."

So, he did. Sgt. Major Griffin admitted to us his Deputy could have handled the situation better.

The deputy's boss said the tazing followed departmental policy, but if so their policy is flawed. The deputy could have simply arrested the woman, there was no need to fire the taser. As it turns out, the same deputy is the person responsible for training everyone in his department on taser use!

Maybe deputy constables shouldn't be out making routine traffic stops if the folks training them think using force under such circumstances is okay. The Travis County Sheriff has the same use of force policy, according to KEYE, but Sheriff Greg Hamilton publicly criticized the deputy constable and said the use of force was unacceptable. (I'll see if I can't lay my hands on a copy of the policy and follow up.)

The Department of Justice earlier this year criticized the Austin PD's failure to provide good supervision and training on using tasers and other intermediate-range weapons, and this incident makes me think that shortcoming may be more widespread than just at APD.

Interview on innocence with Dallas public defender

At the Dallas News, check out Jennifer Emily's interview with "Dallas County public defender Michelle Moore [who] has represented seven of the 20 people proven innocent by DNA testing after they had been unjustly convicted and served time in prison." I worked with Moore for a time when she was a boardmember of the Innocence Project of Texas, a position she left when she was assigned to handle post-conviction DNA testing cases for the Dallas Public Defender office.

Moore said the best thing police could do to prevent false convictions would be to use "blind sequential lineups." Asked whether Dallas would see more exonerations, Moore declared she had "several cases on the radar at present that I would bet money on."

Might threat of punishment reduce drug dealing more than punishment itself?

The Wall Street Journal reports that 30 US cities on Monday will announce participation in an anti-crime strategy that IMO has a ton of promise ("Cities join unorthodox crime program," June 13):

The initiative, run by the John Jay College of Criminal Justice, targets violent crime and open-air drug markets that are the scourge of some communities. The program is potentially controversial because it involves not prosecuting known offenders if they agree to quit their criminal activities. ...

Developed by David Kennedy, a criminologist at John Jay College in New York, the crime program combines elements of initiatives run in the 1990s in Boston and in High Point (North Carolina) in 2004 that were credited by authorities with helping reduce youth gang and drug violence. Boston authorities say their program cut youth homicides by two-thirds and homicides citywide by half. The High Point plan eliminated drug markets citywide, the city says.

Under the project, law-enforcement officials and prosecutors in the cities identify individuals operating in violent-crime areas who haven't yet committed serious violent crimes, and build cases against them, including undercover operations and surveillance. The culmination is a "call in" when the case is presented to the would-be suspect in front of law enforcement, community leaders, ex-offenders and friends and family.

"The prosecutor talks to them and lets them know: 'we could arrest you now but we won't because the drug dealing stops today, the violence stops today,'" said Jeremy Travis, president of John Jay. "If you continue, you now know the consequences and you've seen the case against you but we don't want to send you to prison."

Meanwhile, violent criminals who are identified will be arrested. In the High Point project, drug dealers weren't included in the program if they had a history of violence; had gun violations that were considered dangerous; or had pending cases against them.

I like this strategy because it overcomes one of the fundamental flaws with the economic premise behind crime and punishment that make incarceration a failed approach for eradicating drug crime, particularly open air drug markets.

The strategy makes even more sense when you realize, as the authors of Freakonomics demonstrated, that most drug dealers live with their mothers and thus are probably more susceptible to community influence than antisocial stereotypes give them credit for.

The economic premise behind most criminal laws is that the punishment is the "price" for illegal activity, which offenders should presumably not participate in unless they're willing to "pay." However, this conception of punishment as "price" ignores the dramatic real-world uncertainty about outcomes and what economists call "free rider" problems. Most people involved in most illegal drug transactions are not arrested or incarcerated, so participants in drug markets do not perceive they'll necessarily pay a "price" for their offenses, and certainly not for the next marginal offense where odds of capture are statistically pretty low.

That uncertainty makes it much less likely criminal laws influence behavior because most rational risk assessors do not assume they'll pay a "price" for any given offense. But if you inform somebody (and the people around them) that the Sword of Damocles is looming directly over their head so that they perceive incarceration as an immediate risk, that "price" becomes much more real and likely to influence behavior, particularly among callow youth who aren't yet so deep in the game.

For more details on what's become known as the "High Point" strategy (named for the town in North Carolina where it was popularized), see past Grits coverage and also these resources on the topic:

• Wall Street Journal: "Novel police tactic puts drug markets out of business," Sept. 27, 2006
• David Kennedy: "Drugs, Race and Common Ground: Reflections on the High Point intervention," based on remarks at a 2008 NIJ conference
• YouTube video (11 minutes): "Innovators' Focus: Overt Drug Market Strategy Curbs Crime"

Feds assess market for illicit drugs, treatment trends

Via this Houston Chronicle story, I learned that the National Drug Intelligence Center this week issued its annual "market analyses" on illicit drug seizures, arrests, and trends in so-called High-Intensity Drug Trafficking Areas (HIDTAs). Here are the Texas assessments:

• North Texas HIDTA (DFW)
• South Texas HIDTA (San Antonio to the border)
• Houston-area HIDTA (16 counties around Houston and along the coast)
• West Texas HIDTA (El Paso, Midland, Odessa, and Big Bend-area counites)

One item that stood out in the charts and tables about each jurisdiction: In all four areas, according to the market analyses, adult admissions to publicly funded drug treatment facilities declined between 2006 and 2008, especially for harder drugs.

In Harris County, for example, the number of drug-related treatment admissions to publicly funded facilities declined over that period for powder cocaine (924-831), crack cocaine (1,798 to 1,607), and heroin (420 to 186). In the San Antonio HIDTA, drug treatment admissions declined from 2006 to 2008 in every category, which was the pattern in all TX jurisdictions, according to NDIC, with one exception: Admissions for heroin treatment increased in Dallas County, though they declined for meth and both crack and powder cocaine.

I find this trend especially curious because the state of Texas invested more than $200 million in new drug treatment and prison diversion programs beginning September 2007, so it seems like the numbers should be headed in the other direction. It makes me wonder about the quality of NDIC's data.

Meyers, Keasler, should be Dems' CCA electoral targets

The Dallas News' Michael Landauer writes that "Lawrence Meyers, the longest-serving member of the Court of Criminal Appeals, says he's running for re-election. In doing so, he cites the court's reputation for fairness. Try not to laugh." The other two Texas CCA judges up in 2010 are Michael Keasler and Cheryl Johnson, all Republicans.

There is no liberal wing on the Texas Court of Criminal Appeals. There's a conservative wing, to which Judge Johnson belongs, and a more or less totalitarian wing, in which Keasler and Meyers reside along with Presiding Judge Sharon Keller.

I respect and support Judge Johnson, who has been a key leader on the court standing up to Judge Keller and trying to haul its reputation out of the muck. IMO, she's earned her spot battling it out in the trenches with Keller and Co. for the soul of the court. The Dems would have to come up with a stellar candidate for me to consider voting against her. Against Keasler and Meyers, I'd be much less picky: This court desperately needs new blood.

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

Early education and crime

While this blog mostly focuses on the mechanics of the criminal justice system, the truth is we must look outside the framework of police, courts and prisons to discover the real causes of crime and identify the full range of possible solutions.

At this point in US history, additional spending on incarceration probably isn't worth the crime fighting bang for the buck compared to other ways that money could be spent - particularly investments in education and mental health care. So I was interested to see a couple of headlines this week here and yon promoting early education policies that seem likely to reduce crime:

• Editorial: Perry should sign pre-K bill
• Officials: Early Education Effort Cuts Crime

The editorial, by United Way of Texas President Karen Johnson, quoted a study out of Texas A&M which "found that for every $1 invested in high-quality pre-k, at least $3.50 is returned to Texas communities. Savings for taxpayers are realized long-term because children who experience high-quality pre-k have higher rates of high school graduation, higher earning power as adults, fewer referrals to special education, and significantly less involvement with the criminal justice system."

The other link is out of Iowa, where law enforcement is pushing early education spending on the grounds:

that high school dropouts are three and one half times more likely to be arrested and eight times more likely to be incarcerated. Nearly 70 percent of state prison inmates nationwide failed to earn a high school diploma, states the report. Officials said that if the male graduation rate increased by 10 percent in Iowa, it's estimated to save $88 million every year.

I wrote recently about the United Way's "Common Good Forecaster," which posited a link between education levels and crime. According to the backup material (pdf) for that web tool:

Rigorous studies show a strong link between more education and reduced rates of violent crime (Lochner 2004). A one-year increase in the average level of schooling in a community is associated with almost a 30 percent decrease in the murder and assault rates (Lochner 2007), results which are particularly reliable through high school. Of course, one important reason is that more school generally brings higher wages and expanded job opportunities and thus less incentive to engage in criminal activities. However, wages and jobs are not the end of the story. Classrooms help instill values that oppose criminality and socialize students to become better citizens. In many cases, schooling may also teach patience, reduce tolerance for risk-taking, and provide a supervised environment that tempers negative interaction among young people. And finally, youth who leave school early risk being influenced by a more negative set of peers, while those who stay are more likely to build a constructive social network and set off on a path toward productive work experiences.

Too often when we talk about crime fighting, the focus is solely on the cops and the courts. But factors like education can be equally critical. Indeed, there's a case to be made that, with prison populations bursting at the seams, the best way to chip away at crime isn't locking even more people up but helping more young kids have a better life.

RELATED: From the Denver Daily News, "Fewer prisoners = more graduates?"

See related Grits posts:

• Back to School: Fight crime, invest in kids
• Education a solution to crimes from murder to graffiti

Terri Hodge bribery trial begins this month

Embattled state Rep. Terri Hodge, a long-time criminal-justice reform advocate, drew a primary opponent this week, Dallas lawyer Eric Johnson, who announced his candidacy anticipating her forthcoming trial for bribery, scheduled to begin later this month, reports Gromer Jeffers at the Dallas News:

The June 22 public corruption trial of former Dallas City Council member Don Hill, state Rep. Terri Hodge and others promises to be the biggest political spectacle this city has seen in recent years.

The witness list includes such politicos as former Mayor Laura Miller, former San Antonio Mayor Henry Cisneros, City Manager Mary Suhm, U.S. Rep. Eddie Bernice Johnson and many others.

With everything else, the trial should bring into focus the ways deals were cut at City Hall and whether they were legal or illegal.

Lawyers involved expect the trial to last for months.

Rep. Hodge steadfastly maintains her innocence, but she has never publicly explained away seemingly strong evidence that she received free rent for many years from a developer for whom she allegedly did favors in an official capacity. (See details in the indictment, a 166-page pdf file, beginning on p. 26 of the pdf.)

This summer's trial will either finally give Hodge a chance to respond publicly and clear her name once and for all, or sink her political career for good and maybe send her to prison. I wish her luck, but mostly I hope she didn't do what she's been accused of by the US Attorney and a federal grand jury.

MORE: From Kuff.

Governor should add eyewitness ID, not voter ID, to special session call

Governor Perry finally admitted this week that a special session would be necessary to keep agencies open whose Sunset bills didn't pass, though he didn't say when he would call it.

Whenever he brings them back - whether this summer or next spring after the GOP primary in March - if the Governor decides to expand the "call" for the special session beyond keeping the Sunsetted agencies alive (they can only bring up legislation for consideration with his pre-approval), the first item on the list should be eyewitness ID, not voter ID, as some have suggested.

The second should be authorizing a constitutional amendment to allow the Governor to grant posthumous pardons, such as in the ignominious case of Timothy Cole - an issue of high priority, in particular, to Cole's family.

The Court of Criminal Appeals' Criminal Justice Integrity Unit recommended making improved photo ID procedures the Legislature's highest priority for preventing false convictions, but legislation to do so died in the carnage surrounding the "chubbing" to death of hundreds of bills in the voter ID fight.

I don't care a whit about the voter ID debate, mainly because there's no evidence the type of voter fraud it's supposed to prevent is happening on any significant scale. (Mail ballots are a more frequent source of real-world voter fraud.) By contrast, Texas has witnessed 40 men exonerated by DNA evidence, 80% of whom were falsely accused by eyewitness testimony, including Timothy Cole.

Since we know DNA evidence doesn't exist in 90% of violent crimes and most jurisdictions (besides Dallas) didn't save old DNA to test, it's pretty certain these 40 are really the tip of the iceberg regarding the number of actually innocent people sitting in Texas prisons. There's a lot more tangible evidence that flawed or nonexistent eyewitness ID policies are creating significant problems than there is supporting allegations of voter fraud that caused the session to melt down.

The 81st Texas Legislature didn't have to turn into a train wreck; that was an unfortunate, bipartisan choice. Now the Governor has a chance to right the ship by putting things that matter on the agenda for a special session, starting with reforming eyewitness ID procedures.

Conservative veto call for expanded CPS powers growing louder

The outcry is growing against last minute amendments to SB 1440 expanding CPS authority to act without "good cause," the Fort Worth Star Telegram reported yesterday ("Groups urging Perry to veto bill that would increase CPS' power") in a story that incidentally quoted this Grits post on the topic. According to the Startlegram:

A coalition of conservative and libertarian groups is urging Gov. Rick Perry to veto a bill that would make it easier for Child Protective Services to remove children from a home while investigating possible abuse.

Groups including the Republican Liberty Caucus of Texas, the Texas Home School Foundation and the Free Market Foundation have called on supporters to contact Perry’s office and request that he veto Senate Bill 1440.

At issue is an amendment addressing instances when a parent refuses to let a CPS worker inside to investigate an abuse or neglect allegation.

If the bill became law, a judge would be able to grant CPS a court order similar to a criminal search warrant, allowing a CPS worker to immediately enter the home and, if necessary, remove the child and secure medical and mental-health records as part of an investigation. It would be done without notifying the parent in advance.

"It seems like we’re throwing the Fourth Amendment under the bus," said Tim Lambert, president of the Texas Home School Coalition. "It completely undermines parental rights."

Our pal David Jennings over at the Lone Star Times dubbed SB 1440 the "Take Away Your Child Act." A staunch conservative and GOP activist, Jennings declared in the LST comment section, "I really hope he vetoes it. If he doesn’t, I’m not sure what I’ll do for the primary."

Are you listening, Governor Perry? These are your primary voters talking.

Click here to email or find a phone number for the Governor to request he veto SB 1440.

Market blurring line between graffiti and art

This story from the New York Times confronts the question, "Is graffiti Art?", and answers, "It is, this year":

PARIS — Like a slow-burning fuse, graffiti has smoldered in the contemporary art world for decades: omnipresent in the streets yet not quite hot enough to catch fire in the market. But this year it exploded, with graffiti and “street art” shows in major museums and gallery spaces both sides of the Atlantic — and people have been lining up round the block to get in.

In March and April, a show of graffiti tags in the south-west gallery of the Grand Palais, one of the top Paris exhibition venues, was a media and public sensation.

“The lines around the building every day were even longer than those for the Warhol exhibition next door,” said Alain-Dominique Gallizia, a French architect who created the show, during an interview.

The story also quotes Valériane Mondot, who "belongs to a new generation of gallery owners who nurture, guide and promote their graffiti artists, often using the Web." Similarly,

In London, gallery owners like Steve Lazarides of the Lazarides Gallery, Paul Jones of the Elms Lesters Gallery and Richard Tokatly of the Artificial Gallery are playing a similar role. Mr. Tokatly, who shows artists including Banksy, Damien Hirst, the Chapman brothers and Grayson Perry on his Web site, seems to have a feel for the way the cultural wind is blowing. “I have more hits for Banksy than I do for Damien Hirst,” he said.

If that trend continues, the market may provide the final say-so on whether graffiti can simultaneously be vandalism and art.

On the complete other end of the graffiti spectrum, check out this excellent short video discussion (less than 4 minutes, SFW) of "Pixação," a specific style of graff writing practiced (and widely despised) in Sao Paolo, Brazil. According to ATX Graffiti, "The name comes from “piche”, the local word for pitch (tar) which was frequently stolen from local construction sites to use as tagging paint." The narrator interpreting the glyphs in the short video says that Pixação's practitioners are among the poorest, most desperate people in Brazil, risking their lives for painting. "Nobody cares about them, nobody sees them, they're invisible." The overarching message they're sending, he said, is "I'd rather you hate me than ignore me."

RELATED: See this NYT blog post about the Musée des Graffiti in Paris.

AND MORE: A gallery in Mexico City is playing a similar role promoting the work of graffiti artists, according to the LA Times' La Plaza blog.

DOJ: Harris County Jail fails to meet minimum constitutional standards

A new findings letter from the US Justice Department criticizing the Harris County Jail dramatically ups the ante regarding the overcrowded facility's continuing problems.

The letter from DOJ's Civil Rights Division hit all the high points, declaring straight-up that the jail in Houston "fails to provide detainees with adequate: (1) medical care; (2) mental health care; (3) protection from serious physical harm; and (4) protection from life safety hazards." DOJ said in many ways, the jail functions fairly well, but "in a number of critical areas, the Jail lacks necessary systems to ensure compliance with constitutional standards."

Unconstitutionally Poor Healthcare
According to the letter, "Because of crowding, administrative weaknesses, and resource limits, the Jail does not provide constitutionally adequate care to meet the serious medical needs of detainees with chronic illness." In particular:

We found specific deficiencies in the Jail's provision of chronic care and follow-up treatment. These deficiencies in themselves and when combined with problems in medical record-keeping and quality assurance ... are serious enough to place detainees at an unacceptable risk of death or injury.

The letter criticizes the jail (whose population is larger than more than half of US states' prison populations) for using the "sick call" system as the primary means of delivering care and said "generally accepted correctional medical standards" require them toto set up systems to identify and treat chronically ill inmates in a ongoing fashion. Several egregious, specific examples of preventable deaths stemming from a lack of chronic care, with names omitted, are detailed in the report.

Mental Healthcare Below Par
The same deficiencies seen with chronic care also plague the jail's mental health treatment systems, said DOJ. The jail fails to adequately assess mental health issues on the front end and fails to treat them in an ongoing fashion while prisoners are inside, providing insufficient resources, too limited an array of treatment options to jail staff, and inadequate measures to prevent suicides.

Inadequate Review, Unreliable Data on Use of Force
DOJ also said they have "serious concerns about use of force at the Jail," calling the agency's use of force policy "flawed," specifically for failing to list proscribed practices like hogtying and chokeholds, and also for generally nebulous language and a lack of a strong administrative review system to evaluate use of force complaints. The crux of the problem:

When supervisors review use of force incidents, they do not have ready access to important evidence. Instead, they appear to rely excessively on officer statements to determine what happened during an incident. ... [As a result,] use of force occurs at the Jail without adequate review, and Jail data regarding use of force levels cannot be considered reliable.

As with its other criticisms, the letter cites several on-point examples demonstrating these inadequacies, with DOJ opining that "These and other similar incidents suggest that staff use hazardous restraint and force techniques without appropriate guidance or sanction." (See the full document for more details.)

Whither TCJS?
DOJ said it was "concerning" that the Texas Commission on Jail Standards continually gave "waivers" to the Harris Jail in order to allow them house 2,000 more prisoners than the facility was designed to hold. Overcrowded conditions at the Harris Jail in and of themselves may not violate constitutional standards, said DOJ, and they acknowledged the Sheriff is taking steps (like housing some prisoners out of state) to alleviate the problem. But overcrowding exacerbates the jail's other constitutional deficiencies, contributes to sanitation and hygiene problems, and "reduces staff's ability to supervise detainees in a safe manner," say the feds. DOJ suggests that "additional jail staffing or more jail diversion programs could reduce the risk of detainees coming to harm in the facility."

One complaint I'd not heard before: The Jail does not maintain enough clothing or linen for the number of inmates housed there and "the laundry operation does not meet minimum sanitary standards." The same was true, they said, of the jail's barbershop.

Locals in Denial
This definitely turns up the heat on the Harris County Jail to rectify longstanding medical and staffing problems, though county officials are downplaying the findings in ways that seem not to appreciate the gravity of the concerns raised. County Judge Ed Emmett told the Houston Chronicle, “Actually, if you read the report, it is fairly positive ... It has some episodic events but it does not show a pattern of problems.”

But that's exactly false. The letter precisely alleged a pattern of problems and told the county DOJ would sue them if they aren't soon fixed. This drama is far from over, and I'm willing to bet Judge Emmett won't be the one getting the final say.

MORE: From AP and Off the Kuff, the Austin Contrarian and Houston's Clear Thinkers.

Burka v Riddle on prison diversion funding

Texas Monthly named state Rep. Debbie Riddle to its Ten Worst Legislators list, in part because of her performance as chair of the Criminal Justice Subcommittee Appropriations, and in part because Paul Burka apparently just doesn't like her. Riddle responded, and the ensuing debate casts more light on some of the Appropriations battles in the House this session over prison diversion funding. Riddle responded to Burka:

One of the reasons you rate me as among the ten worst legislators in the state is because you claim I shifted money from incarceration diversion programs to programs that “weren’t requested, such as $20 million for new cars for the Department of Public Safety.”

If you disagree with the funding decision to give DPS the tools they need to do their job, that is a legitimate political viewpoint. However, there are two major errors in your claim.

First, the funds for the cars were not shifted away from any program. The money my subcommittee spent on this item was a one-time expense from freed-up general revenue as a result of the federal stimulus money. It was one of the last things we funded, and even then only after we fully funded the diversion programs (the same ones you claim I shortchanged) at the levels they were appropriated last session. However, the more glaring error on your part is that those black-and-whites actually were requested by the DPS. In fact, it was one of their top exceptional items, and they backed this up in public testimony on more than one occasion.

Burka replied thusly:

Members get on the Ten Worst list because they do public harm. Debbie Riddle writes that the DPS cars were funded “only after we fully funded the diversion programs (the same ones you claim I shortchanged) at the levels they were appropriated last session.” But fully funding them at the same level as last session was not the same as fully funding them at the level TDCJ requested.

The Legislature’s best minds on criminal justice–Sylvester Turner, Jerry Madden, Jim McReynolds, and John Whitmire–have worked very hard to establish programs in the prisons that are designed to reduce recidivism and alleviate the necessity for building yet more prisons. Turner explained that TDCJ releases 70,000 inmates a year, and these programs are aimed at helping these inmates with reentry to life on the outside. They range from substance abuse treatment to adjustments such as job counseling. I interviewed both Madden and Turner about this. Both said that these re-entry programs are the best tool we have to reduce recidivism, and that they appear to be working.

Turner offered an amendment to move money from information resources–he said that Riddle had given TDCJ $12 million more than the LBB recommended in this area–to re-entry programs. TDCJ had specifically asked for it, he said. [Readers may view the tape on the Appropriations debate for amendment 119.] Madden supported him. Riddle moved to table. The House rarely votes against a subcommittee chair in such instances, but the motion to table failed with 57 ayes and 78 nos, and the funding to the programs was restored. Another Turner amendment took away $15 million of the $20 million for DPS cars and shifted it to the diversionary programs backed by Turner and Madden. Riddle wanted to move the $15 million to a wish list, where it was likely to die, and keep full funding for the cars. McReynolds, standing behind her at the back microphone, is seen on videotape shaking his head vehemently.

The problem here is that Riddle gave new cars a higher priority than the policy of using reentry programs to avoid building new prisons — at a cost of $600M per prison. I don’t think for a moment that she is malicious. But she is prideful, and that led her to substitute her judgment for the judgment of the best minds in the Legislature on criminal justice issues. The moment that Turner, Madden, and McReynolds were aligned against her, she should have realized that she was on the wrong track and should work with them to fix the problems she had created.

Certainly it's true that funding prison diversion programs at the same level as last session amounts to underfunding them. Drug court programs in particular were underfunded in 2007 to the point that some counties couldn't meet state mandates, while TDCJ is still short of its needed number of aftercare beds, We've reached the realistic limit of relying on probationer fees and at some point the state must fund these programs if they're going to succeed. The alternative, as Burka points out, is building much more expensive prisons.

Burka also could have also mentioned that Riddle was the chief opponent of TDCJ's proposed 20% pay hike for prison guards, or anything close to it - needed, said the agency, to draw workers to dangerous jobs in out of the way areas. TDCJ is about 3,000 guards short of minimum staffing at its 112 units, and has had to close down wings in Dalhart and elsewhere because they couldn't hire enough guards to cover the units. They wound up getting 3.5% raises each of the next two years, which better than a sharp stick in the eye, but not remotely enough to expect the agency to eliminate a 3,000 guard gap. That has safety implications both for prisoners, short-staffed guards and other prison workers, not to mention it makes it harder for the agency to assign staff to interdict contraband.

OTOH, there was some mean-spirited sniping to the TM piece on Riddle, dredging up comments from six years ago, for example, to justify giving her a "worst" tag today. The truth is, though I disagree with her a LOT on criminal justice matters, including the budget debates described above, Riddle has grown a lot as far as her knowledge of criminal justice subjects, about which I think it's fair to say she knew extremely little when she first walked into the House chamber. After several sessions on the Criminal Jurisprudence Committee and spending last session on Appropriations, today she's a lot more knowledgeable. Though we often disagree, I don't consider her incompetent, whereas in 2003 I would have been frankly concerned to see her hands anywhere near the levers of power.

Debbie Riddle is a nice, well meaning person, she just has different priorities and a more politicized, partisan approach than the legislators Burka names with more history as leaders on the topic. But she was elected to call the shots as she sees them, so I can't blame her for that. If you want to point fingers, blame Joe Straus for disempowering Jerry Madden and Sylvester Turner at the beginning of session, not to mention Jim Pitts (one of Texas Monthly's Ten Best) for naming her subcommittee chair for Criminal Justice on Appropriations. Anybody could have predicted that replacing Sylvester Turner at that spot with Debbie Riddle would lead to precisely this type of reprioritization.

None of that changes the bottom line, though, which is that the 81st Legislature represents a missed opportunity regarding prison diversion funding, largely because of Debbie Riddle's role. We know the investments made already have worked and we know if further investments were made it would free up even more prison beds, which are a lot more expensive and less effective at reducing recidivism.

If in the next couple of years if we begin to see prison commitments at higher rates than LBB's current projections, it arguably may be because Texas failed to build in 2009 on the landmark work done in 2005 and 2007 by the Lege to expand prison diversion for addiction-related offenses and free up space to house truly dangerous criminals.

Econometric support for cutting prison populations

When Texas Monthly editor Jake Silverstein asked me to contribute a "Big Idea" for the magazine's May issue on the subject, I'd offered them this provocation, crafted from material in past Grits posts:

Texas should dramatically slash its prison population and eliminate a majority of felony crimes. We have criminalized too many different activities: Texas has 2,324 separate felonies on the books, including 11 involving oysters. From 1978 to 2008, Texas's population increased 80 percent, while the prison population increased 595 percent. If prison growth had matched population growth, around 40,000 would be in Texas prisons today - instead the number is about 155,000. Texas must stop trying to manage every social problem through the justice system and re-empower its civil courts and regulatory functions to handle more conflicts among citizens.

My suggestion for slashing the prison population was met in some quarters with derision. "WOW!! I could not disagree more with your opinions on this issue," opined one reader. A GOP legislative staffer at the capitol told me she was shocked to see me put my name on such "radical" views.

So I'm plesaed to be reading a new paper by UT-Austin LBJ School Professor Bill Spelman ("Crime, cash and limited options: Explaining the prison boom," Criminology & Public Policy, Vol. 8, No. 1., pp. 29-77, not online, see the abstract), confirming in laborious detail the mathematics behind the following calculation:

Estimates vary widely, but the marginal prison bed seems to prevent somewhtere between two and seven crimes, which saves potential victims between $4,000 and $19,000 per year.

"But note the details: If each prison bed reduces costs by no more than $19,000, but costs us $20,000 to $40,000, then do we need this many beds? Clearly not, and it's not (too) difficult to use current estimates of the crime-control effectiveness of prison, the costs of crime to victims and nonvictims, and the costs of prison to show that we overshot the mark sometime in the early 1990s. Enormous cutbacks - reductions of 50% or more in the prison popoulation - are not difficult to justify and would probably save the US public billions of dollars earch year. Certainly there is little economic justification for continuing to build.

The wide variation among estimates for crime costs prevented by prison make the cost-benefit analysis even dicier than that quote implies. $19,000 is the high end of estimated crime costs prevented by incarceration. If the true cost turns out to be closer to $4K, on the low end of the spectrum, then from an economic perpective overincarceration would seem abusrdly overemphasized.

Spelman's analytical work on this subject ranks among the most respected on all sides of the debate. And though I've quibbled with some of the assumptions in his work, including in this paper, on the whole there's really nobody out there whose approach is both as comprehensive and data driven as what he's producing. I'll be writing more about Spelman's findings soon, perhaps after talking to Bill about his paper, just to make sure I understand his math.

Prof. Spelman, incidentally, was previously on the Austin City Council and after a hiatus, was just re-elected to an open seat unopposed. Congrats, Bill!

Measuring public attitudes on criminal justice

Via The Crime Report, I was surprised to see the results of this Zogby Survey done on behalf of the National Council on Crime and Delinquency. Among the highlights:

• A majority of US adults believe that some crimes, for which offenders are currently incarcerated, do not demand time behind bars.

• Eight in ten (77%) adults believe the most appropriate sentence for nonviolent, nonserious offenders* is supervised probation, restitution, community service, and/or rehabilitative services; if an offender fails in these alternatives, then prison or jail may be appropriate.

• Over three-quarters (77%) believe alternatives to incarceration do not decrease public safety.

• More than half (55%) believe alternatives to prison or jail decrease costs to state and local governments.

• US adults more often think alternatives to incarceration are more effective than prison or jail time at reducing recidivism (45% vs. 38%).

• Respondents cited a variety of reasons they believe justify sending fewer people to prison or jail, including expense, overcrowding (danger to guards, danger to inmates), the ability of proven alternatives to reduce crime, and the fairness of the punishment relative to the crime.

Another striking result from that poll found a lack of public confidence in the effectiveness of prison at altering behavior: "More than half (54%) do not think that serving time in prison or jail reduces the likelihood that a person will commit more crime in the future, while about two-fifths (38%) hold the opposite view."

Meanwhile, Steve Hall from the Stand Down Texas Project alerts us to a separate poll by CNN concerning attitudes about the death penalty that suggests a very different public sentiment, though I think the question was framed in a biased way. For starters, before asking the pro or con question, the only example of an executed inmate given to the poll-taker was a serial killer who murdered 8 women in Connecticut, a particularly heinous crime that's not representative of the average death row inmate's case. (In Texas, even accomplices can be convicted of capital murder under the "law of parties."

CNN's poll found 53% of Americans favored the death penalty for murder, while 43% preferred life without parole (the only choice offered besides "not sure"). The findings, though, are extremely suspect regarding their application to real-world policy because the options didn't include the most common sentence in murder cases - incarceration that's LESS than LWOP and frequently leaves the murderer parole-eligible after a certain, minimum sentence, if they can convince the parole board they're no longer a continuing threat.

In 2007, according to TDCJ's annual report (pdf) Texas state prisons received 1,078 offenders convicted of charges of homicide (p. 18). Only 37 of them received sentences of LWOP, while just 14 went to death row. So that's a pretty biased way to frame the question if the goal is to present realistic policy alternatives.

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

Toward a crime-focused immigration policy

Over at Threats Watch, Jay Fraser considers it an "interesting policy contradiction" to find that Texas will begin screening prison inmates' fingerprints to identify and deport illegal immigrants who commit serious crimes, while "The City of Oakland plans to issue photo-ID cards to illegals to enable them to ease their "access to services, improve their civic participation and encourage them to report crimes" (emphasis in original).

From a pure public safety perspective, though, I see both policies as complementary, not contradictory. It's not realistic and would be too disruptive to the fabric of society to deport the estimated 12 million foreigners who don't have proper documentation, but it's a perfectly manageable (and justifiable) task to send home the ones who commit serious crimes. (Illegal immigrants commit crimes at much lower rates than citizens, but when it happens this is an appropriate response.)

Meanwhile, especially in places like California and Texas where the population of illegal immigrants is particularly large, it 's a serious detriment to public safety if a big chunk of the public won't cooperate with police and cannot participate in many facets of legitimate public life because they lack an ID. It also increases the likelihood they'll engage in identity theft in order to gain documentation.

Personally I think immigrants regardless of status should be able to get drivers' licenses, which would have the added benefit of significantly reducing the number of uninsured drivers on the road by eliminating the biggest barrier to getting auto insurance.

So if you support better crime reporting by victims, reduced identity theft, and (in the case of a drivers license) reducing the number of uninsured drivers on the road, it makes perfect public safety sense to let undocumented immigrants get an ID without too much hassle.

You'd think a blog named "Threats Watch" could identify the common thread. Both policies are aimed at reducing threats to the public and reducing crime, which IMO are laudable and non-contradictory goals.

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

Harris County dominating stats on certifying juvies as adults

Earlier this year there was a sharp debate over whether removing 19-20 year olds from TYC caused more juveniles to be certified as adults. But it turns out the biggest factor in adult certifications may be geographic: Kids are much more likely to be certified to stand trial as adults if they live in Harris County. According to the Houston Chronicle ("Experts: Juveniles dumped into adult justice system," June 7):

As many as 900 Harris County teens, some as young as 14 and most of them minorities from broken homes and mean streets, have been certified as dangerous enough to be charged and jailed as adults over the last decade, at times facing prison sentences as long as a life.

In 2007 and 2008 alone, Harris County juvenile judges transferred 160 teens’ cases to the adult system — more than nine of the largest urban counties in Texas combined, according to a Chronicle analysis of statewide certifications by county.

According to documents obtained by Texas Appleseed in a lawsuit:

Historically, more than 90 percent of the DA’s recommendations for certifications were approved, county statistics indicate. The pace slowed somewhat in the first four months of 2009: 22 requests for certification; six declined.

The hearings tend to be quick — as short as 15 minutes — and based mostly on police statements and probation officers’ reports, according to a review of 2008 case files and interviews with attorneys.

Judges used fill-in-the-blank form rulings with very similar findings, the Chronicle found. In two cases, the forms were written so sloppily that girls certified as adults were referred to as “he.”

Few juvenile defense attorneys asked outside experts to evaluate their 14- to 17-year-old clients. In fact, some children get no formal psychiatric evaluation at all for potential mental health or disability issues before being transferred to adult court, according to records and interviews.

University of Houston law professor Ellen Marrus, an expert in juvenile law, said many court-appointed lawyers don’t “bother to work up the case and a lot of the orders are rubber-stamped.”

It's too early to tell whether the changing of the guard at the Harris District Attorneys office will influence this, but if not, I hope Texas Appleseed's lawsuit tears them a new one. Of all the decisions that merit individual consideration instead of a rubber stamp, surely these cases stand out as deserving extra scrutiny, not a a quickie decision based on a sloppily filled out form with inadequate representation for the youth.

Picking Sonia

I've held off discussing President Barack Obama's Supreme Court pick, Sonia Sontomayor, because I know little about her and much of the public debate so far about identity politics, etc., has been uninformative. Thankfully, via SCOTUSBlog, there's a lot of information now available about her that I'll be perusing over the coming weeks:

Judge Sotomayor’s completed Senate Judiciary questionnaire is available for download here.

The transcript of her confirmation hearing for the Second Circuit is available here and her Judiciary questionnaire from that hearing is available in two parts: here and here.

The transcript of her confirmation hearing for the Southern District of New York is available here and her Judiciary questionnaire from that hearing is available in two parts: here and here.

So far, I must admit I find myself unexcited by Judge Sotomayor, pro or con. Her criminal law positions (particularly her Fourth Amendment views) seem a bit too pro-government for my tastes - perhaps even more so than David Souter, who she would replace.

I'd personally hoped Obama would look outside the federal appellate courts for a nominee: The current members of SCOTUS all basically have the same bio, and Sotomayor's life experience as a Latina from Brooklyn hardly trumps her life experience at Princeton, Yale, and as a functionary in the federal courts. That background has a lot more to do with shaping one's judicial perspective than how somebody spent their childhood.

My sense, though, is that Sotomayor will be easily confirmed. Indeed, her nomination appears to be less about influencing the court than avoiding a brawl in the Senate that might spill over into the coming health care battle. Color me uninspired.

UPDATE (6/8): For the most sustained, substantive critique of Sotomayor I've seen from a conservative perspective see NRO's Bench Memos (just scroll down, there's a lot, with plenty of links to other critics). You'll also find there an interesting discussion of the the merits of anonymous blogging after one of Bench Memo's contributors outed of a South Texas Law School professor blogging pseudonymously at Obsidian Wings about the Sotomayor nomination, a blawgosphere imbroglio chronicled this morning over at Simple Justice.

Obama appointees offer more of the same on drug interdiction

I was critical during the campaign of Barack Obama's drug policy stances, so even though I'm disappointed at the contents of his administration's new "National Southwest Border Counternarcotics Strategy," released yesterday at a press conference by Obama's drug czar, Attorney General Eric Holder and Homeland Security chief Janet Napolitano, I'm not surprised to see them proposing more of the same.

This is a tactical document with few if any new strategic elements. They're fiddling around the edges of policies perpetuated by the last four presidents, but nobody appears to be rethinking the fundamental approach.

In a black market, focusing solely on supply-side enforcement ironically enriches the cartels by driving up prices. Because of the volume of cross-border traffic involving legitimate trade and travel, it's literally impossible to interdict most drug shipments, so the the cartels just charge more for the shipments that make it through. To that extent, an enforcement only approach plays right into the hands of the smuggling gangs the policy hopes to undermine.

As the Drug Policy Alliance lamented in a Washington Post story, there's nothing in the plan at all about demand reduction. The problem, to read this document, stems solely from the activities of smugglers, not the predilection of American consumers for their products. To be effective, though, a drug-control strategy must also reduce demand for illegal drugs by reducing consumption through treatment and education. Bottom line: As long as Americans are willing to pay premium prices for illicit narcotics, they're going to come into the United States one way or another. A demand reduction approach might actually reduce drug cartel profits, whereas focusing solely on supply-side interdiction simply maximizes them.

Just as frustrating to me, the policy document mostly ignores official corruption on the US side, barely mentioning the topic from its discussion of investigations and prosecutions. Without prioritizing such investigations, though, the approach is doomed to fail. Cross-border smuggling is incredibly reliant on corrupt, bribable law enforcement and immigration officials; interdiction cannot succeed without reducing that trend. Such investigations are easier than pursuing ghost-like cartel leaders and deliver more bang for the buck in terms of affecting interdiction. But reducing corruption isn't a major focus of the Obama Administration's anti-drug strategy.

Clearly on other issues - healthcare, the environment, Middle East policy - Barack Obama's administration represents a major change from his predecessor. On the drug war, though, as Pete Townsend wrote, it's "Meet the new boss, same as the old boss."

RELATED: Obama's Mexico policy so far depressingly familiar

Bad CPS bill deserves a good veto

Jerri Lynn Ward alerts me to a bad amendment approved in the legislative session's waning hours heaping new authority on CPS to allow them to undertake child seizures and interrogations without first notifying parents. The Parent Guidance Center issued this press release calling for a gubernatorial veto. See discussions from Tim Lambert of the Texas Home School Coalition and the blog The Travis Monitor. According to Lambert:

the bill was substituted in committee for a very different SB 1064, which was passed out of the Senate and sent to the House. The new SB 1064 gave the court authority to force parents to give CPS access to the child and/or transport the child for "interview, examination and investigation," without a court hearing or notice to the parent. Worst of all, the language in the current statute that requires CPS to prove "good cause shown" was stricken. Thus this bill would allow CPS, during an investigation in which the parents would not waive their 4th amendment rights, entrance into their home, access to medical or mental health records of their children or transportation of the child, on the simple filing of an affidavit by a CPS worker with no hearing or opportunity for the parents or their legal counsel to present their case.

The bill language allows CPS to access records without parental consent or a court hearing and lets them transport a child for questioning based only on an affidavit (without a hearing or a finding of "good cause") if the parents won't consent. Parents must be notified afterward as soon as practicable, but I don't see why it's not "practicable" to notify them beforehand.

This is clearly an overreaction to the fiasco surrounding the Great Eldorado Polygamist Roundup, and an unnecessary one. I'm disappointed in Rep. Patrick Rose and Sen. Kirk Watson for carrying this piece of junk. Ward, Lambert and other conservatives are calling on the Governor to veto SB 1440 and I'd have to agree the bill deserves an ignominious demise.

Follow this link to tell the Governor your opinion.

Junk arson science helped secure capital murder conviction

Walter Reaves, an attorney out of Waco (see his blog here), is becoming the go-to defense lawyer in Texas on arson cases involving antiquated junk science, taking the issue on at a very high level after his client Cameron Todd Willingham was executed based on bad arson science. Here's a story about a case he's working on with the Baylor Innocence Project as reported by KXXV Channel 25 (June 2):

New scientific developments in arson analysis may help set free a man convicted of capital murder more than 20 years ago.

Ed Graf was convicted of killing his two stepsons by burning them in a backyard shed in 1986. But the burn patterns on the floor that had given prosecutors reason to believe it was arson by gasoline, is now being revisited by scientists using newer knowledge of fires developed in the last two decades.

Attorney Walter Reaves and law students with the Baylor Innocence Project dug up the case and asked Dr. Gerald Hurst to re-examine the old evidence.

"Burns on the floor, holes in the floor, had been misinterpreted as being the accelerant poured like gasoline," said Dr. Hurst, "When in fact those patterns were caused by a phenomenon called flashover."

Flashover occurs when all combustible material in an enclosed area ignites almost simultaneously. Hurst said that objects in the shed, like the fold-up cot, could have brought the shed to the point of flashover in a matter of three minutes. Hurst even called the polyurethane foam in the mattress "solid gasoline."

But the original prosecutor, Vic Feazell, said that circumstantial evidence pointed strongly to Graf. "We had so much circumstantial evidence that I believe the jury would have convicted Ed Graf even without the arson evidence."

The circumstantial evidence he refers to is the fact that Graf did not feed the boys or fill their cereal boxes in the last days like he normally did, that he bought life insurance for them only months before the incident, and waited until the last minute to buy them new school clothes, all signs that the prosecutors said that meant Graf knew the boys would soon be gone.

In addition to evidence against Graf's character, original fire investigators also pointed to the burn patterns they thought were caused by gasoline, and the latch that had locked the boys in the shed. That physical evidence from the fire, however, is now being refuted by Hurst.

"In the period of the Graf case it was totally subjective," Hurst said in regard to the burn patterns. "But it was subject to a bunch of old wives' tales that people really believed in."

Don Youngblood, the original defense investigator, added, "It's been shown now that the assumptions made under the testimony by the fire experts was faulty, that the conclusions reached were not accurate."

Dave Mann at the Texas Observer recently covered this case in depth, concluding "It’s ... difficult to say conclusively that Graf is innocent. What does seem clear is that, given the botched forensics in the case, he never should have been convicted."

My Blogroll is Lame

When I switched awhile back to the current template on the free Blogger software I use to run Grits, the by-hand html in which I'd previously coded all my links didn't transfer easily into the new template's format, and as a result it's become a pain in the butt to manage the blogroll; over the last year or so I've virtually quit doing it.

As a result, quite a few links in Grits' sidebar are outdated, some good new sites I enjoy have not been added, and sites that ceased publishing or changed focus were never excised. In several cases, because I failed to promptly update my blogroll, I lost URLs from folks who notified me by email of excellent new blogs after an egregious computer crash. (My apologies to all thus snubbed.)

One of my goals for the summer will be to clean up this mess and update the blogroll in a systematic way. Before I get around to that, however let me point out several sites that merit Grits readers attention:

TYC employees have begun a bulletin board to discuss issues related to facilities and personnel. I'd encourage them to use it and hope it becomes a robust alterative to using Grits comments section for the same purpose.

Michael Landauer at the Dallas Morning News has launched an exclusively death penalty focused blog, to which I can only say, "Better you than me, amigo." He joins the Stand Down Project blog covering that beat.

I've linked to a few posts from the Texas Court of Criminal Appeals blog but have neglected to add it to the sidebar; it'll be among the excellent blogs added in this summer's overhaul.

Bobby Frederick's South Carolina Criminal Defense Blog needs to make it onto the out of state list. I've been reading his stuff fairly frequently.

Steven Hirsch's Courthouse Confessions undertakes an especially cool project, interviewing defendants at a New York City courthouse. This one published Monday quoting a student arrested for graffiti struck me as interesting because in Texas he'd be charged with a felony (the tagging episode was at a university). Another adamantly maintained innocence in the face of what he said were false eyewitness reports.

The Crime Report, by Ted Gest and Co., is another site that needs to make it onto the list.

Finally, though off topic from the subjects Grits covers, since the financial meltdown began I've been reading a couple of good economic blogs pretty regularly: Calculated Risk and Naked Captialism.

Before too long I'll be adding these and other excellent blogs to Grits' sidebar and updating links in the blogroll. Be sure to let me know any other additions you think merit consideration.

What was in the final TYC-JPC Sunset bill?

The Texas Legislature didn't accomplish much in 2009, but one of its few tangible achievements was to pass the "sunset" bill for the Texas Youth Commission and the Juvenile Probation Commission. Here's the conference committee report (pdf). Let's run through the highlights real quick to see what was finally done.

Instead of a merger, the bill eliminated language from the House version of the bill creating an 18-member "Juvenile Justice Policy Coordinating Council. and left the two agencies freestanding. (Ed. note: Corrected to fix an error in the original post stating that they'd kept the advisory body).

Both agencies must undergo the Sunset process again during the next biennium instead of waiting the usual 12 years. This will hopefully be a more productive exercise than the last go-round, when TYC was in the midst of radical transition while the Sunset review was conducted. Indeed, the acting executive director and conservator who helped Sunset staff compile their initial report weren't around by the time the Lege got back into town. Maybe things will go more smoothly when legislators and Sunset staff can work in the interim with the agency's permanent leadership. Otherwise, the bill:

• Requires TYC to keep committing courts informed about youths' progress while they're incarcerated, to create a comprehensive reentry plan for youth upon release, and to provide committing courts a copy of the reentry plan and tell them about youths' behavior inside the facility before they're finally released back into the free world.

• Requires the Office of Independent Ombudsman to accept pre- and post-publication comments from TYC before issuing any reports, though it's not obligated to alter the report in response.

• Requires creation of a coordinated strategic plan including "development of common data sources and data sharing" among an alphabet soup of state agencies: TYC, TJPC, TEA, DSHS, DFPS, and HHSC.

• Requires TJPC to publish a "Quarterly Report on Abuse, Neglect and Exploitation" at county juvenile lockups and private facilities under the agency's regulatory jurisdiction.

• Allows TJPC to contract with local MHMR authorities for mental health residential treatment services.

• Establishes a community correction pilot grant program (discussed previously on Grits) aimed at funding diversion programs to keep youth out of TYC. TJPC must develop rules governing the program.

• Allows offenses committed at TYC facilities to be prosecuted in any county where an element of the crime occurs or in Travis County - that's a significant change.

• Mandates that TYC will create a "reading and behavior plan" for special ed students and requires 60 minutes per day individualized reading instruction for youth identified with reading deficits.

• Requires a memorandum of understanding between TYC, TJPC, DPS, DSHS, DFPS, TEA and the Texas Correctional Office on Offenders with Medical and Mental Impairments to ensure "continutity of care" for youth offenders with mental health needs.

Nothing too surprising here, though the expanded emphasis on literacy and mental health services may tax agencies' abilities - currently there may not be enough teachers at TYC, for example, to provide extensive one on one instruction with a significant number of students. We'll see going forward how such mandates work out on the ground.

Ed. note: Because of trollish misbehavior in past TYC comment strings, I'll be shutting this one down after 30 comments, and will do so immediately before that if anonymous commenters begin attacking fellow employees by name or discussing topics outside the scope of this post - including this blog's comment policies. That discussion is officially over. N.b.: If said misbehavior continues, I'll be eliminating comments on TYC strings altogether going forward. Thx. The Management.

DNA exoneration indicts Rover in the witness box

Another civil suit has been filed over questionable forensic practices involving Fort Bend Sheriff's Deputy Keith Pikett's bloodhound "scent lineups." According to FortBendNow.com, the suit:

alleges that the scent line-up was “rigged to be result-oriented, that is, to maliciously and intentionally implicate” [Calvin] Miller.

“…The forensic protocol and methodology used by Defendants rendered the scent line-up not only unreliable but so tainted and cross-contaminated as to be consciously indifferent to the rights of Plaintiff,” the suit states. “Mr. Pikett, the supposed K-9 expert, advised and participated in every flawed procedure used.” The suit suggests those procedures in effect helped deny Miller’s 4th Amendment rights.

I'd never heard of scent lineups before recently, but this appears to be another forensic practice that's accepted by Texas criminal courts but has never been subjected to rigorous scientific scrutiny. DNA exonerated the latest defendant after Pikett's dogs accused him.

Impeachment News and Notes

Federal District Judge Samuel Kent out of Galveston showed a lot of chutzpah submitting a resignation letter that doesn't become effective until a full year from now after he was convicted and sentenced to 33 months in prison for engaging in "non-consensual sexual contact with employees." I've not tracked this case closely but this guy is as big a disgrace to his robes as any jurist in the Lone Star State, and that's saying something. Congress may "fast track" Kent's impeachment to avoid the injustice of him drawing an extra year's salary while doing time in prison.

At the state level, Rep. Lon Burnam decided not to bring his resolution to impeach Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals to the House floor before the Legislature reached Sine Die on Monday. This was likely in deference to the utter meltdown at the end of session and the need to actually (attempt to) accomplish something in the session's closing hours. Burnam had told me a couple of weeks ago he intended to propose impeachment on the floor before session's end. The state Commisson on Judicial Conduct has scheduled a removal hearing to consider allegations against Judge Keller in August.

CCA orders Yogurt Shop retrial based on possibility of false confessions

In grudging deference to the US Supreme Court's decision in Crawford requiring that defendants have the right to confront witnesses against them in court, the Texas Court of Criminal Appeals has thrown out one of the disputed convictions in Austin's infamous 1991 "Yogurt shop murders," a horrific case involving the murder of four teenage girls. The US Supreme Court refused the state's appeal, so the case must be retried or Springsteen released.

The 5-4 ruling at the CCA broke along familiar lines in this sharply divided court: Judge Keller wrote the dissent and Paul Womack wrote the majority opinion. Both are good reads (as such documents go) and provide much more background for those interested.

The debate boiled down to whether the judges feel false confessions are possible when not overtly coerced and whether they agree it's possible that information from the crime scene was leaked. Womack answered in the affirmative on both, while Keller insisted the defendant had no motive to lie (which ignores resarch about why people falsely confess) and that no evidence was presented at trial about leaked information, which of course doesn't mean it didn't happen. Rebutting that assertion, Judge Womack wrote:

In this case, a repudiation of a confession may have more than the usual weight. Police investigators had obtained other confessions to these murders that included non-public information, and the investigators had decided the confessions were not true. Within days of the murders, police were inundated with tips and leads. Many people knew facts that a witness called "the kind of information that should have remained at the crime scene." The appellant introduced several stories that the local newspaper published in December 1991 that contained "non-public" facts about the crime. An investigator testified that within weeks of the murders, "too many people [knew] too much about [the] crime scene." Many teenagers frequented the mall area near the yogurt shop, and information that the police had withheld quickly spread among "kids talking to each other about what they thought they knew about the case." Another investigator testified that "perhaps as many as 60 teenagers in that first week or two after these murders were brought in for questioning." He and another investigator testified that the investigation was derailed when too many teenagers began providing too much confidential information. The investigators had to investigate the leakage of information from their own investigation. Several investigators were removed from the case, one after being investigated by the internal affairs division.

In February and March 2002, Alex Briones and Shawn Pearson Smith confessed to the murders. The appellant introduced these confessions, which contained non-public, "hold-back" facts. Despite the confessions, police investigators decided that neither Briones or Smith had committed the crime.

Indeed, more than 50 different people confessed to the Yogurt Shop murders over the years, quite a few of them presenting information police had held back from the media, but police ultimately latched onto two of the confessors - Robert Springsteen and Michael Scott - who were tried and convicted of capital murder. No physical evidence from the crime scene links them to the event, however, and both men later recanted. DNA evidence finally tested last year also failed to match the defendants and contradicted the prosecution's theory of the case at trial, leading many folks (though not police and prosecutors) to conclude that these were also false confessions.

False confessions happen a lot more often than you might think: About 25% of DNA exonerees nationally either confessed or pled guilty to crimes it was later proven they didn't commit. One of the worst false confession cases in the nation, in fact, also arose out of Austin and involved some of the same detectives from the APD homicide squad.

This has been an incredibly long and difficult legal saga that seems destined for a particularly unsatisfying conclusion. Given new DNA evidence and the fact that the state can't use the defendants' confessions against one another, it's difficult to imagine prosecutors securing another conviction against Springsteen based on the disputed confession alone.

Embarrassing: Lege ensures more false convictions with 81st session failures

After all the fawning over Timothy Cole's family and public declarations throughout the 81st Texas Legislature that the state would act to prevent false convictions, all the major innocence-related policy reforms proposed this year died in the session's waning hours with the exception of one bill requiring corroboration for jailhouse informants.

Two other pieces of legislation for a brief moment had passed both chambers on Friday as amendments to HB 498, but after a 110-28 record vote approved the measure, Rep. Carl Isett moved to reconsider the bill and it was sent to a conference committee, where the amendments were stripped off for germaneness.

Sen. Rodney Ellis earlier in the day had requested the House appoint a conference committee and approve a resolution to "go outside the bounds" to consider eyewitness ID, but that resolution never came and instead the bill was denuded of all policy substance to become a bill to study whether to study the causes of false convictions.

We didn't need more study by the Legislature on this issue, we needed action. Eyewitness ID errors make up 80% of DNA exoneration cases and the Court of Criminal Appeals' Criminal Justice Integrity Unit said it should be the Legislature's highest priority for preventing false convictions. But unless the issue is added to a call in a special session, at least two more years will pass before the Lege can begin to rectify the problem.

That's inexcusable. It's not okay for the Legislature to know that innocent people are being convicted under the statutes they've written and simply decline to prevent it.

The science on eyewitness ID is strong enough to where, if it can't be done legislatively, IMO it's incumbent on the courts to do it (even if the Texas Court of Criminal Appeals as currently constituted seems likely not up to the task). This isn't a "when we get around to it" kind of deal; the risk of false identification is significant every time old, outdated techniques are used, which is dozens of times per day statewide. So given the volume of lineups performed, it's a certainty there will be more false convictions in Texas in the future because the Lege failed to act.

Ironically, while ignoring most legislation on the causes of false convictions, the Lege did pass and the Governor signed HB 1736 increasing payments to exonerees, even as, by their own inaction, they ensured there will be many more of them.

The only bill passed aimed at preventing false convictions was a modest proposal to require corroboration for testimony by jailhouse snitches (SB 1681 by Hinojosa), something prosecutors insisted usually happens anyway. (A more ambitious bill regulating informant use, SB 260, never even received a hearing.) Otherwise, innocence legislation killed by the voter ID debacle included:

• Recording custodial interrogations (SB 116)
  
• Expanding access to writs in cases of discredited science (SB 1964)
  
• Restricting reasons judges can deny postconviction DNA tests (SB 1864)

This represented a failure of leadership on all sides. Voter ID was the flavor of the session and by the end, MANY different factions of legislators had decided their stance on that was more important than preventing false convictions.

Senate Republicans sent that message when they overrode traditional practices to exclude the voter ID bill from the 2/3 rule. Voter ID was the most important issue in the state, they crowed, though it's notable none of them ever made that statement to anyone from Timothy Cole's family, who were up at the capitol many times throughout session asking the Lege to approve reforms.

The Speaker and the Calendars Committee sent the same message when they placed voter ID on the Major State calendar ahead of critical innocence reforms, even though they knew a fight was brewing. And House Democrats chubbed away caring more about their vote margins at election time than the fate of innocent people in the justice system.

These bills would have been modest first steps, not a cure-all, but now even those first efforts will be delayed because most people at the Texas Lege are too preoccupied with electoral navel gazing and tit for tat partisanship. Embarrassing. And angering.

MORE: From the Lubbock Avalanche Journal, "Wrongful conviction bills die."