DPS commander coached law-enforcement witnesses, says 5th Circuit opinion

In an opinion (pdf) issued Wednesday, the Fifth Circuit Court of Appeals upheld a lower court's ruling that the DPS Commander in charge of the department's Training Academy improperly coached Harris County Sheriff's deputies before their depositions in a Sec. 1983 civil rights suit. The ruling came in the same case that took down Harris County District Attorney Chuck Rosenthal after he deleted subpoenaed emails and ultimately resigned in disgrace. In this new decision, the Fifth Circuit ruled on findings of misconduct against three state's attorneys.

The court partially sustained sanctions against two assistant county attorneys (who were defending two Sheriff's deputies), dismissed them against Harris County ADA Scott Durfee (who represented Chuck Rosenthal), and of course there's no legal penalty at all for the DPS Commander who allegedly coached witnesses and may have given "false testimony," according to the opinion.

Looking closely at the details of the ruling, we find the court actually reached no conclusion about whether assistant county attorneys Mary Baker and Frank Sanders gave false testimony, instead vacating that part of the lower court's ruling because, in the order, the district judge listed the wrong date when their alleged false testimony occurred. According to the opinion:

Insofar as the district court found that Baker and Sanders gave false testimony during the November 29, 2004, hearing, the finding is clearly erroneous. Baker and Sanders did not testify until January 2005.

Regarding whether DPS Commander Albert Rodriguez or other officers gave "false testimony," the Fifth Circuit offered no opinion but merely vacated the lower court's ruling without elaboration on the grounds that it relied on a "legal standard too permissive of sanctions." What was wrong with the lower court's standard for sanctions? What standard should have been used? Quien sabe? The opinion is silent on these matters.

Despite that officer-friendly decision, the appellate court affirmed the finding about witness coaching which centered on allegations Commander Rodriguez was paid to instruct deputies how to alter and frame their testimony to support a pre-manufactured defense theory.

Deputy Preston Foose "denied that Rodriguez advised him how to testify at the deposition other than to tell the truth," noted the opinion, which then concluded that "Events that occurred the next day suggest otherwise." The deputy showed up at his deposition with detailed notes that mirrored a memo Rodriguez prepared for the defense and included key details Foose never mentioned before.

Though calling the evidence somewhat "scant," the Fifth Circuit upheld the lower court's findings that the deputy appeared to have been coached, exhibiting a “predisposition to recollect facts that support the defense’s theory ... while denying recollection of other key or contradictory evidence.” Ouch!

All this leads to several, obligatory followup questions: Will the state bar sanction Baker and Sanders for causing their witnesses to be coached in this fashion? And what if any sanction will they receive from their employer, the elected County Attorney?

What about Deputy Foose, who allegedly embellished his testimony after meeting with Commander Rodriquez? One wonders what if any disciplinary action was taken against him after the district court found his testimony unreliable? Is this fellow still testifying in court on behalf of the department?

For that matter, what about Commander Albert Rodriguez, who runs the friggin' DPS Training Academy? It was Rodriguez who actually did the alleged "coaching" of witnesses, after all.

Given the circumstances, it's unclear whether or how Commander Rodriguez might ever be held accountable. He's still testifying as an expert witness in other cases around the state though he played a central role in the actions for which these attorneys were sanctioned. Presumably he was off the clock when this happened, so he'll face no discipline on the job. Even if he did improperly coach witnesses, he walks away from the whole thing relatively unscathed.

Perhaps it's a bit snarky to say so, but one hopes this episode doesn't reflect what the DPS Training Academy teaches rookie troopers these days about testifying in court.

Meanwhile, the folks over at TDCAA are particularly happy that ADA Scott Durfee was cleared of wrongdoing. The appellate court notes that Durfee was himself only informed of Rosenthal's notorious email deletions at the end of the day before the Thanksgiving break, ordered a subordinate in IT to work over the holiday to retrieve the deleted emails, then informed opposing counsel on the next business day when the IT person couldn't find them. The Fifth Circuit placed blame for this episode entirely on Rosenthal and said Durfee did not improperly delay revealing his boss' misconduct. That seems like a reasonable conclusion, distinguishing outright misconduct from happenstance or error.

So it sounds like the Fifth Circuit got it right on Durfee's case, but I remain dissatisfied by the ambiguous resolution to the whole witness coaching episode.

ACLU: Pregnant probationers can't be singled out

Lawrence Gist has a notable piece on a friend of the court brief submitted to the Texas Court of Criminal Appeals by the ACLU regarding whether pregnant probationers whose urinalysis tests positive for drug use can be singled out for harsher punishment because of their medical condition:

The American Civil Liberties Union and the ACLU of Texas today filed a friend-of-the-court brief in a case involving the unfair incarceration of a pregnant woman who violated her probation. The ACLU asked the Texas Court of Criminal Appeals to affirm a lower court ruling that probation officers treated the woman, Amber Lovill, differently from others who violated probation but were not pregnant.

"Our criminal justice system cannot treat pregnant women more harshly than other people convicted of similar crimes simply because they are pregnant," said Diana Kasdan, a staff attorney with the ACLU Reproductive Freedom Project. "The lower court correctly concluded that the state's extreme treatment of Ms. Lovill constituted sex discrimination and was based on stereotypes of pregnant women."

In 2005, Ms. Lovill pled guilty to the crime of felony forgery and received a sentence of two years in a state jail, which the court suspended pending completion of three years in community supervision. In July 2007, during a routine report to her probation officer, Ms. Lovill took a required drug test and also informed the officer that she was pregnant. After she tested positive for drug use, the state moved to revoke her probation and incarcerated her for the duration of her pregnancy. According to the ACLU brief, at the revocation hearing, officers repeatedly admitted that if Ms. Lovill were not pregnant, less restrictive alternatives would have been the typical response to a positive drug screen.

"Not only was Ms. Lovill discriminated against because she was pregnant, but the state placed her in a facility that the government had already found unsanitary and unsafe, especially for pregnant women," said Lisa Graybill, Legal Director of the ACLU of Texas. "If the state had wanted to address Ms. Lovill's drug use, it could have enrolled her in a program that specializes in treating pregnant women. It deliberately chose a punitive and less effective alternative."

"Under the Texas Equal Rights Amendment, the state cannot justify subjecting pregnant women to more severe punishment and treating them differently from others based on gender stereotypes," said Ariela Migdal, staff attorney with the ACLU Women's Rights Project. "But that is precisely what the state did in this case and that is impermissible."

Here's a corresponding press release from the ACLU and a copy of the brief.

Corrections second behind Medicaid in sources of state budget growth

A new report (pdf) by the Vera Institute says 22 states have cut funding for corrections because of the current economic crisis. Here's the abstract:

States across the United States are facing the worst fiscal crisis in years. All but two states are dealing with budget deficits, and spending is being cut across the board. Second only to Medicaid, corrections has become the fastest growing general fund expenditure in the United States. Considered off limits for many years, corrections budgets are now subject to these same cuts. Based on a survey of enacted FY2010 state budgets and other recent sentencing and corrections legislation, this new report from Vera’s Center on Sentencing and Corrections found that at least 22 states have reversed the trend of recent decades and cut funding for corrections. This report examines the form of these cuts, including reductions in operational costs, reforms in release policy, and strategies for reducing recidivism, and it highlights some of the innovations that states are pursuing for long-term savings while also maintaining public safety.

The paper's introduction continues in this vein, predicting the need to find savings in corrections budgets won't just be a short-term issue:

Given that current state budget deficits are expected to continue and possibly increase over the coming years, states will need to continue to find ways to control corrections costs. Each year, the decisions will become more difficult. Management strategies may extend operating efficiencies, but the resulting cost savings are likely to fall short of what states will need to make ends meet. When deeper cuts are required, states will have to shift expenditures from costly prisons to far more economical investments in community corrections and confront controversial questions about which people really need to go to prison and how long they should stay. State governments are beginning to rise to the challenge of cutting corrections costs while maintaining or even boosting public safety. This paper highlights some of the innovative and creative ways they are doing so.

See the full report (pdf).

Bexar DA stepping into probation department urinalysis fiasco

I've been critical of Bexar County DA Susan Reed in the past, so I've got to give the devil her due. ;) According to Greg Harman writing the San Antonio Current

the DA’s office has stopped prosecuting probationers solely on the results of an initial dirty urinalysis. [ADA Cliff] Herberg said too many questions have been raised about Treatment Associates’ testing to trust the results. The District Attorney’s office is now investigating complaints that Treatment Associates employees accepted bribes for clean test results.

“We do not want somebody being arrested in a system we don’t have confidence in,” he said.

Good for the District Attorney, that was the right move. I'm quite relieved to learn Reed stopped prosecuting based solely on unconfirmed probationer UAs after the false positive problem emerged last year. The probation department and private contractor both refused to pay for more accurate, confirming tests, so IMO that was an appropriate and wise (if unpublicized) response.

And I'm doubly glad somebody in Bexar County officialdom is taking seriously allegations of bribe taking by employees of the urinalysis vendor - I was beginning to think everybody in SA just had bribery fatigue and nobody really gave a damn anymore.

In addition to investigating bribery allegations, the DA should investigate whether anybody over at the probation department knew about these alleged criminal activities who would have had an affirmative duty to report the crime because of their position as an officer of the court. It looks from the outside like there was a coverup, that officials in the probation department and/or other agents of the court likely knew about the alleged bribetaking and knowingly decided overlook it. If so, that falls squarely in the DA's purview, and it surely must be clear by now the Bexar probation department can not be relied upon to investigate itself.

The Current also renewed and updated allegations of union-busting by top management in the Bexar probation department:

it appears union-busting topped the to-do list for Chief Probation Officer Bill Fitzgerald and Director of Operations Kathy Cline.

According to former Bexar County probation IT Director Natalie Bynum, Cline kept a list of known and suspected union members she wanted out of the department. To weed them out and quash the union, she had Bynum meet her repeatedly during and after work to comb through employee email accounts.

“She wanted their computers monitored in order to find out if they were doing any union activities while on the job, also to see what was going on with the union,” said Bynum, who now lives in Arizona and spoke with the Current by phone. “We’d go to the bar and then we’d go back to work afterwards. It would be just us in the office, often-time.”

Bynum, a close confidant of Cline’s during her tenure, says she was motivated by curiosity since she was “not allowed” to speak with known members of the Central Texas Association of Public Employees, a division of the United Steelworkers. Cline and Bynum’s alleged searches weren’t limited to the “five to 10” employees targeted by Cline, either. Bynum told the Current this week that Cline also regularly tapped into her boss’s account to see if Fitzgerald was talking about her.

Neither Cline nor Fitzgerald returned repeated calls for comment.

That's a fascinating and telling anecdote right there about departmental culture, with Fitzgerald's #2 allegedly checking into not only union members' email contents but also her boss'! Ouch! Do you suppose Cline and her boss have some trust issues? I guess after the last #2 (Paul Kosierowski, now a plaintiff in litigation against the department) was unceremoniously bounced out, nobody atop the agency trusts anybody anymore. That's a lot of internal office drama taking up agency leaders time and attention, diverting focus, for example, from implementing programs to reduce probation revocations.

Thanks to the helpful reader who emailed links to the Current piece and a couple of other news stories on the topic.

New Harris DWI 'diversion' plan causes more problems than it solves

Harris County DA Pat Lykos yesterday rolled out a highly punitive and possibly illegal "diversion" program for first-time DWI cases, leaving the Houston-area legal blogosphere abuzz. See the actual plan (pdf) and initial analysis from criminal defense attorneys Mark Bennett, Paul Kennedy and Murray Newman; here's the Houston Chronicle's coverage.

Bottom line, all first time DWI defendants will be offered two options: 30 days in jail or two-years on probation in a newly created (and poorly named) "diversion" program, after which charges will be dismissed. The legal bloggers out of Houston are covering this well, but let me just make a few observations:

We were earlier told part of the purpose for this plan was to reduce jail overcrowding, but this proposal will significantly increase it at a time when the Harris Jail is overflowing and the Sheriff can't adequately staff the jail for the population they've got. How about a little acknowledgment of reality in these decisions?

This is deferred adjudication by another name and it's not allowed in Texas for DWI. I predict the appellate courts will end up overturning the arrangement the first time they try to violate somebody (who can afford a good lawyer) under one of these agreements.

Relatedly, is this a model that's been tried elsewhere or is the DA's office just pulling this out of its collective bureaucratic behind?

Thirty days in jail means somebody probably loses their job, if they have one. That's bad for the economy and public safety. Why not use intermediate sanctions for probation violations instead of needlessly filling up the jail with nonviolent offenders?

The stated conditions of probation are too onerous to induce plea bargainers to choose that option. They include a 10 p.m. weekend curfew, no alcohol at all (not just no driving), no going into places that serve alcohol, paying for an ignition interlock, counseling and regular urinalysis, needing prior permission to travel beyond contiguous counties, and allowing their P.O. and police officers into their home whenever they want, among quite a few others. For myself, faced with that choice, I'd just take the 30 days.

Lykos wants to require ignition interlocks from everyone (paid for by the defendant) but those are expensive and not really cost effective for first-time offenders. Murray Newman rightly asks, "Have you thought about the effect of indigency on your Pre-Trial Diversion customers? What if somebody can't afford the Interlock Device, or they don't have a car at all? Do they get their Diversion yanked?" I'm a strong supporter of requiring ignition interlocks for repeat offenders, but on the first offense it doesn't pass the cost-benefit test.

Finally, it's going to be a concern for some that, according to the Chronicle, "If they successfully complete the probation, [offenders'] records will not show a conviction for driving while intoxicated." But will the MADD folks be satisfied if somebody gets a second DWI three years hence but the sentence can't be enhanced because they were never "convicted"? Most first-time DWI offenders never commit a second offense, but if they ever do at least the first conviction is still on the books. Not under Lykos' new policy, though.

This seems like poorly conceived proposal that needs some more time back at the drawing board, but the DA plans to roll out its new plea policy on August 1.

MORE: See a discussion of the Harris DWI diversion plan on the user forum at the District and County Attorneys Association.

Texas shortchanged on COPS grant funding

Since Governor Perry has been disdainful of federal stimulus funds, one supposes he won't be too unhappy that Texas got stiffed on the Department of Justice's COPS hiring grants for new police officers. Though Texas makes up 7.87% of the population nationally, we received just 3.89% of total COPS grants representing 4.17% of all the officers awarded, according to this state-level fact sheet (pdf) from DOJ about the grants announced yesterday. See information on other states here.

I've got mixed feelings that this straight-up pork-barrel funding wasn't doled out somewhat closer to Texas' percentage of the population. Granted, I'm not a big fan of this program and don't think it's necessarily wise for cities to take the money, but when our tax dollars head off to Washington I'd generally prefer they come back downstream at least somewhat proportionally.

All told, Texas cities got 196 new officers out of 2,798 requested around the state, most of them (131) in three large cities: San Antonio and Dallas received grants for 50 officers apiece, with Arlington receiving 31. The only other large city to receive money was El Paso which got two (though the El Paso Sheriff's request for deputies was denied). Houston PD asked for 240 officers but they and the Harris County Sheriff were both notably snubbed, as were some other large departments around the country. The rest of Texas' COPS grants went to smaller jurisdictions, with the most officers among smaller towns going to Galveston PD and the Galveston County Sheriff, one assumes to make up for shortfalls in the wake of Hurricane Ike.

Looking at the applicant rankings by state on the DOJ website, we find a list of other Texas departments that applied but I haven't seen information about how many officers each of them asked for. Other Texas departments that applied for grants but received no new officers were Austin PD, the Travis County Sheriff, and police departments in Tyler, Abilene, Laredo, Del Rio, Bryan, Odessa, Killeen, Temple, Amarillo, Irving, Waco, Plano, Denton, Nacogdoches, and quite a few other smaller departments.

Here's some of the initial MSM coverage:

• Feds hand SA cash to hire 50 more cops, SA Express News
• Feds give Arlington millions to pay for officers, Fort Worth Star Telegram
• HPD staffing issue arises as aid denied, Houston Chronicle
• Federal stimulus to provide $9 million to fund 50 Dallas police officers, FrontBurner

RELATED: Do COPS hiring grants make sense in a lousy economy?

Neuroscience and the law, now and going forward

Via The Situationist, check out this excellent 10-minute interview with Stanford law prof Hank Greely regarding an issue that's increasingly interested me as a result working as Policy Director for the Innocence Project of Texas: The intersection between law and modern neuroscience.


This is one of the best, brief discussions I've heard of the current status on how modern neuroscience is being used in modern criminal and civil courtrooms and what may be possible in the future.

Greely calls "reckless at this point" (at least) two companies which are already out selling "lie detection" services as potetial expert witnesses using fmri's. But the evidence, he says, at this point does not justify anyone buying such services or admitting it in court.

Along with "pain detection" and "bias detection," however, lie detection is an area where current research is fervently looking for practical applications in the courtroom. Modern neuroscience might also change how courts view insanity defenses, said Greely, though he emphasized that available technology and science doesn't yet necessarily disturb these issues.

If the science is ever perfected, which he emphasizes is a big "if," Greely predicts many other bothersome but interesting Fourth and Fifth Amendment questions facing the courts as a result of evolving neuroscience technology. Good stuff - worth a listen.

MORE: See more on the subject from Baylor Law School's program on Neuroscience and the Law.

Are false confessions 'coerced' or persuaded?

A segment titled "Could Someone Make You Confess to a Crime You Didn't Commit?" by reporter Erin Moriarty on CBS News' 48-Hours Mystery last night featured two prominent Austin cases among other examples of false confessions, noting that "One quarter of those exonerated by DNA test results actually confessed to the crime of which they were convicted." The piece ended promising additional, future coverage to answer a "question for all of us to consider anew: Are we much more vulnerable to coercion than any of us believe?"

Considering this phrase "coercion," I was reminded of a recent post from Mind Hacks on "Hypnosis and criminal mind control in 1890s France" that said while research has proven hypnosis cannot coerce an unwilling person to commit a crime, a fervent belief in hypnosis is a not-uncommon claim among psychotics and "even today and your average inpatient psychiatric ward may well contain a patient or two who believe they are being 'controlled' or 'mesmerised' by hypnosis."

According to Mind Hacks, "The 19th century French neurologist Georges Gilles de la Tourette is best known for Tourette's Syndrome," but he also performed research on hypnosis and criminal behavior and was even "shot in the head by a delusional patient who believed that she had been hypnotised against her will."

I think the lesson from modern false confessions and Tourette's example from Mind Hacks may be not that we're vulnerable to "coercion" so much as that people sometimes accede to their own delusions, weakness or misconceptions when the right (or rather, wrong) psychological buttons are pushed. In most false confession cases I'm aware of, police don't typically "coerce" a false confession - at least not using overt intimidation or "third degree" torture tactics as was common in Tourette's time - but instead in the modern era use well-refined, intense and manipulative persuasion tactics that are often effective but heighten the risk of false confessions.

That's particularly true among youth, the mentally ill and other vulnerable groups, but depending on the circumstances, as Moriarty notes, false confessions can even happen with average adults. (More than 50 people falsely confessed to Austin's Yogurt Shop murders, for example, not including confessions by the current defendants.) Police interrogation tactics are designed to push precisely those psychological buttons, which is all well and good when they're interrogating the right person but sometimes can lead to false confessions when they've got the wrong one.

Tracking evidence-based probation practices in Travis County

Over the weekend I ran across this fine piece of journalism from the May/June issue of the Texas Association of Counties County magazine describing the details of Travis County's efforts to implement "evidence based" practices at its probation department. The county saw reductions in recidivism, probation revocations and incarceration costs for both state prisoners and the county jail. The National Institute of Corrections republished the story on their website, pairing it with an array of related documents about stronger probation systems. Here's a notable excerpt from the County magazine story:

The experiment achieved positive results: because of its four-year effort, the county’s overall one-year recidivism rates dropped from 29 to 24 percent.

More recidivism-related outcomes:

• Pre-experiment, 26 percent of low-risk offenders were re-arrested within one year; post-experiment, only 6 percent were re-arrested after one year. That is a 77 percent drop in low-risk offender recidivism.
• Pre-experiment, 26 percent of those offenders were re-arrested within one year; post-experiment, only 13 percent were re-arrested within one year of their original offense. That is a 50 percent drop in medium-risk offender recidivism.
• Pre-experiment, 34 percent of those offenders were re-arrested within one year; post-experiment, only 31 percent were re-arrested within one year. That is a 9 percent drop in high-risk offender recidivism.

Tony Fabelo, a criminal justice expert who worked closely with the department throughout the transition, said those numbers are significant at all levels.

“The biggest decline has been for the low and medium risk (offenders), which makes sense. The high-risk people are high risk.

They are very difficult to work with,” he said, adding that having fewer low- and medium-risk offenders on caseloads results in having more available resources geared toward offenders most likely to endanger public safety.

Recidivism wasn’t the only area in which the department saw beneficial results. The changes also resulted in the department reducing its overall felony revocations by almost 20 percent. Technical violations were reduced by 48 percent. According to the numbers:

• Pre-experiment, in 2005, the county had 1,052 felony revocations; post-experiment, in 2008, the county had 846 felony revocations.
• In 2005, the probation department filed 608 technical revocations; in 2008, that number dropped to just 318.
• Only 3.4 percent of its felony offenders had their probation revoked in 2008 because of a technical violation, compared to 5.9 percent in 2005.

Based on all those figures, the Legislative Budget Board concluded that Travis County potentially saved the state $4,881,881 over the course of three years, just by avoiding those 290 technical revocations. According to state data, about 67 percent of those technical revocations would have lead to the person being sent to prison for an average of 16 months. Another 29 percent of revocations would have lead to an average of 10 months in a state jail.

The other 4 percent would have spent time in the Travis County Jail. Nagy estimates that the county saved approximately $386,736 in 2008 in jail housing costs. The county calculated that savings by comparing the amount of time probationers spent in jail pre-experiment and post-experiment. That time decreased from a total of 111,339 days in jail in 2007 to 95,225 days in 2008, a 14.5 percent drop.

The experiment was carefully documented throughout its duration, which resulted in a series of reports that can be found on the Travis County Adult Probation Web site.

Stephen Colbert on Tazing Great Grandma

Stephen Colbert last night had an hilarious segment on the Travis County Deputy Constable who tazed a 72-year old great grandmother at a traffic stop. The whole piece is funny but the schtick about the Austin great grandmother kicks in about at about 2.5 minutes:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Current Events - Tasers
www.colbertnation.com
Colbert Report Full Episodes Political Humor Mark Sanford

From Time Out to Hard Time: Young Children in the Adult Criminal Justice System

The headline of this post is the title of a new study (pdf) by Michele Deitch and some of her students at the UT-Austin LBJ School about very young offenders (<13) published an editorial riffing off themes from the report. Here's how the op-ed opens:

The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty. Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.

The states have followed this logic in death penalty cases. But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.

Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year. To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system. These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.

The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.

This is terrible public policy. Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system.

Good job, to Michele and her collaborators. I'll look forward to reading the report.

UPDATE: I just received this email from Michele announcing publication of the study and giving some additional highlights:

Dear Friends and Colleagues,

I write to let you know about a new report entitled “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” released today by the LBJ School of Public Affairs at the University of Texas. The report provides the first-ever comprehensive look at how the nation treats pre-adolescent children (primarily those age 12 and under) who commit serious crimes. The report analyzes the available data with regard to the transfer of young children to adult criminal court, documents the extremely harsh and tragic consequences that follow when young children go into the adult criminal justice system, profiles practices in states with particularly severe outcomes for these young children, looks at international practices, and offers policy recommendations.

The report, which I co-authored with three of my students, finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as 7 can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences, and placement in adult prisons.

This issue, of course, has gained national attention recently with the cases of the 8-year old in Arizona and the 11-year old in Pennsylvania, both charged with murder, and in the case of Christopher Pittman, who was unsuccessful in his efforts last year to get the United States Supreme Court to hear his challenge to his mandatory sentence of 30-years without possibility of parole for the killing of his grandparents when he was 12 years old.

The report shows that the practice of trying young children in adult court contradicts the consensus of the most up-to-date scientific research, and details the many ways in which the adult criminal justice system is a poor and dangerous fit for these young children.

Other key findings include:

· Every year, nearly 80 children age 13 and younger are judicially transferred to adult court. Between 1985 and 2004, 703 children age 12 and under, and 961 children age 13 were judicially transferred to adult court. The total number of young children in adult criminal court actually is much higher than this, as the data does not include the number of children sent to the adult system through automatic transfer laws or laws allowing prosecutors to file cases directly in adult court.

· Many of these young children are being treated as adults for relatively minor offenses. There are almost as many youth treated as adults for property crimes as for crimes against persons. Determinations about when and whether a young child will be treated as an adult are marked by extreme arbitrariness, unpredictability and racial disparities.

· Four states—Florida, Michigan, Pennsylvania, and South Carolina—stand out as providing the worst possible outcomes for pre-adolescent offenders, given the combination of transfer policies and adult sentencing laws and practices in those states.

· On a single day in 2008, 7,703 children under age 18 were held in adult local jails and 3,650 in adult state prisons. In these adult facilities, the youth face vastly higher risks of physical and sexual assault and suicide than they would face in juvenile facilities. The youngest children are at particular risk.

· The United States is severely out of step with international law and practice. Most countries—including those Western nations most similar to the United States, countries in the developing world, Islamic nations, and even countries often considered to be human rights violators—repudiate the practice of trying young children as adults and giving them long sentences.

The report calls on national and state policymakers to keep young children in the juvenile justice system, to disallow mandatory sentencing of young children in adult court, and to always provide parole opportunities for young children transferred to adult court. We also urge that young children in the adult criminal justice system be housed in juvenile facilities, both while awaiting trial and after conviction. ...

I hope this report will be helpful to you in your work, and I would be grateful if you could help disseminate it widely to your contacts in the field. Thanks are to due to so many of you who were incredible resources to us throughout our research for this report.

All the best,

Michele

New public defender responsible for Texas capital writs

Though this blog doesn't focus much on death penalty issues, arguably the most significant achievement in the 81st Texas Legislature regarding indigent defense was the creation of a new Office of Capital Writs, described thusly in the Houston Chronicle by Lise Olsen ("State to handle capital appeals," July 27):

Texas, which executes more convicts than any other state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.

“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office. It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lacks a public defender to oversee key death row appeals known as state writs of habeas corpus.

The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently.

“Better late than never,” said Juan Castillo, one of four death row inmates whose state appeals were never filed by the San Antonio attorney assigned to represent them. “This is a start. There's a lot of cases” that have been screwed up. ...

The Houston Chronicle reported earlier this year that three attorneys had repeatedly blown state or federal appellate deadlines for their death row clients, effectively surrendering their clients' rights to appeal. The Court of Criminal Appeals recently found two attorneys in contempt of court for their shoddy work, including Castillo's lawyer, Suzanne Kramer, and referred them to the State Bar of Texas for possible disciplinary action.

Anything that adds some professionalism and accountability into Texas' capital appeals process, I'm all for. Having a dedicated set of appellate attorneys might even help the process move along a bit faster, avoiding situations where defendants spend decades on death row.

Ellis is right that our system has become an "international embarrassment," and it'll take more than platitudes and good intentions to restore some credibility to the system. This is a positive development, as was the creation of a trial-level capital public defender for West Texas counties last year. Inch by inch, Texas is taking the first steps toward actually improving its capital appeals system instead of just butting heads with SCOTUS over it.

RELATED: Defending the Damned on the Cheap.

Do COPS hiring grants make sense in a lousy economy?

According to The Crime Report, the Obama Administration is just about ready to roll out its 21st Century version of Bill Clinton's COPS program, where the feds subsidize local law enforcement payrolls in order to hire more officers, with local taxpayers picking up the tab after three years:

The Justice Department expects to announce within two weeks grants to hire about 5,000 local police officers nationwide under a $1 billion program in the new federal economic stimulus law, says Dave Buchanan, acting director of the federal COPS Office. Buchanan told criminal justice organizations at a meeting Friday in Washington, D.C., that the grants amount to only a small fraction of the $8.3 billion requested by law enforcement agencies nationwide. The Obama administration has pledged to seek funds for 50,000 officers.

Congress required that half of the new officers be in jurisdictions with under 150,000 population. In judging the requests, COPS officials looked at local economic conditions, crime rates, and applicants’ record in community policing, among other factors. To make sure that large departments didn’t get a disproportionate share of officers, no agency will be funded for more than 50 officers or more than 5 percent of the total, Buchanan said.

I wonder, though, if the COPS program makes as much sense in the current economic climate compared to when Bill Clinton backed the same idea in the 1990s?

Back then property values and local budgets were booming ever upward, but today many jurisdictions face a budget crisis that economists predict could stretch on for the next several years. So in the 1990s, it was easy for cities to project that, even if they couldn't afford more officers today, they could reasonably predict they'd have more revenue in a few years time. In the current economic climate, though, where future revenue in many jurisdictions is projected to decline, it could be problematic that, as a requirement of receiving the money, "At the conclusion of federal funding, grantees must retain all sworn officer positions awarded under the ... grant."

Using federal money to hire local officers is somewhat of a shift in priorities for the COPS program, which during the Bush era evolved away from direct hiring grants because conservatives viewed it as a violation of federalist principles. Instead, according to a recent program evaluation (pdf) by the US Office of Inspector General, "the focus of COPS grants in recent years shifted from increasing community policing personnel to meeting law enforcement agencies’ equipment needs and funding methamphetamine initiatives."

What's more, says OIG, it's an open question whether DOJ has remotely enough capacity to meet "the challenge of effectively monitoring thousands of new grants collectively worth billions of dollars with a limited staff" of just four people assigned to grant oversight. That's a troublesome shortcoming at a time when DOJ is expanding the number of COPS grants issued by orders of magnitude.

Compared with the Clinton years, I suspect jurisdictions are being much more careful about taking on long-run obligations in exchange for free money today, or at least they should be. That was Governor Rick Perry's reasoning for rejecting federal stimulus money for unemployment payments - he didn't want Texas to be on the hook for expanded eligibility after the federal money ran out - and the exact same analysis applies to hiring more police officers.

RELATED: Another part of Obama's stimulus the Governor should oppose?

BLOGVERSATION: From the LewRockwell.com Blog, "More federal police state stimulus," and from Drug War Rant, "Toward a National Police Force."

California must reduce inmate numbers to achieve budget savings

Proposals to cut prison costs in the face of a massive budget crisis generated blowback for California Gov. Arnold Schwarzenegger last week after he suggested releasing some inmates from the state's bloated lockups to save money and comply with federal court mandates.

So what was the solution? Cut the corrections budget total by $1.2 billion overall and put off decisions where to cut until lawmakers leave town.

Nobody without a crystal ball can know exactly how those $1.2 billion in cuts will be realized, but a glimpse at current official thinking may be had by reading a column on California's Flash Report by the Secretary of California's Department of Corrections and Rehabilitation, Matthew Cate. He believes his agency can "achieve our budget cut targets without the early release that the public has feared," suggesting a slew of proposals aimed at reducing inmate populations in the near term. According to Cate, these are the main suggestions for reducing prison costs being kicked around out west:

• Prioritizing resources to ensure that we can house serious, violent, and sex offenders and better supervise them on parole: We’re seeking to reduce our prison population by 5,300 over the next year by cutting down on the 70,000+ parole violators who cycle in and out of prison for technical and other violations. This will also allow us to focus resources on higher risk offenders and reduce parole agents’ caseloads for better supervision.
• Providing alternatives to prison for lower-level offenders who do not pose a serious risk: We intend to use technology to provide alternative custody options for low-risk offenders with less than 12 months to serve, as well as the elderly and infirmed, to reduce the prison population by 6,300. Rather than clogging up $48,000 per year prison beds, or $100,000+ prison treatment slots, these offenders would be placed on house arrest, or in a medical or treatment facility, and monitored by GPS. As an added benefit, the Feds through Medicare can help share the cost of their treatment if they’re outside the bricks and mortar walls of a prison.
• Adjusting property crime thresholds: We expect to have 5,600 fewer lower level property criminals in state prison for things like writing bad checks, petty theft with a prior, grand theft, and vehicle theft, by raising felony thresholds. These criminals won’t escape punishment, they just won’t be serving their sentence in extremely expensive state prison beds for property crimes where the dollar value stolen is less than $2,500.
• Shifting the burden of criminal alien felons onto federal authorities where it belongs: There are 19,000 criminal alien felons in California prisons, and we receive about 11 cents on the dollar for their custody and care. The Governor is going to review their files, starting with low-level non-serious, violent, or sex offenders, to determine which sentences can be commuted and turned over to the federal government for incarceration or deportation.
  
• Encouraging positive behavior through credit enhancements: Inmates who participate in and complete proven rehabilitation programs such as GED, college degrees, and vocational training, will be able to earn weeks or months off of their sentence, rewarding good behavior that will reduce recidivism. This is estimated to reduce the prison population by 1,600.
• Achieving operational savings to reduce costs and increase efficiencies: CDCR is streamlining, consolidating, and eliminating positions at headquarters, the division of juvenile justice, and in the field, to increase efficiency and reduce costs. This will be done in conjunction with the population reduction reforms in a way that will not only save money, but will also allow us to continue to carry out our core functions.

The political dynamic in California strikes me as very similar to that we've seen in Texas legislative debates over rising prison costs: Politicians see releasing current inmates as a political nonstarter, but find it more palatable to suggest reducing the number of new entrants to prison going forward.

Texas pursued some of these same strategies in recent years to reduce its prison growth rate, a result achieved primarily by reducing the number of probation revocations. That was done through greater use of "progressive sanctions" and intermediate penalties for those who violate terms of supervision instead of sending them straight to prison. Secretary Cate's proposal would apply that tactic to both probation parole. Key to making it work, though, to judge by Texas' experience, will be boosting supervision resources, either by spending more money to supervise offenders in the community or reducing the length of supervision so officers are watching fewer people. That tactic will surely save money compared to sending the same folks to prison, but as a practical matter it will require additional investments to strengthen community supervision.

Adjusting the property crime thresholds is a strategy Texas has not yet pursued but which is probably justified here as much as in the Golden State. In Texas, theft reaches felony thresholds when "the value of the property stolen is $1,500 or more but less than $20,000," so the same tactic could be applied here and would also reduce the number of new prison entrants. The $1,500 level was set in 1993 when the "state jail felony" category was created (essentially a fourth degree felony), and it's never been adjusted for inflation.

Supposed savings from reducing incarceration of illegal immigrants will likely prove ephemeral - they aren't that great a proportion of people who commit crimes and it makes little sense just to deport criminals who can fairly easily make their way back into the country. What I find most interesting though is the statement that the Governor will look to "commute" some sentences in order to facilitate quicker deportation. Modern governors are especially stingy with such commutation power and it'd be remarkable if the Governator decides to use his on such a large scale.

The suggestion that California will "Encourage positive behavior through credit enhancements," of course, is a proposal to release well-behaved inmates sooner, which belies the claim the state will avoid "early release" of current prisoners. It's ironic to me to see Cate using the bureaucratic euphemism "enhancement," which usually means increasing criminal penalties, to support shortening prison sentences. While it may seem a bit disingenuous, it's interesting to note the language Cate uses to frame the discussion.

The last bullet is simply an homage to ideological critiques of "government waste," but I seriously doubt much actual savings can be realized merely by increasing government "efficiency." Politicians have been hammering that theme for three decades and, for the most part, any alleged waste or inefficiency has been long ago eliminated. The main corrections costs don't stem from bureaucracy but from prisons' primary function. The only way to reduce incarceration costs, in the end, will be to reduce the number of people the state incarcerates. Everything else is window dressing.

Via California Corrections Crisis.

Madden to chair crimjust committee for National Conference of State Legislatures

This is a well-deserved honor, IMO, and puts state Rep. Jerry Madden, a prominent, mainstream Texas criminal justice reformer, in a nationally prominent spot where he both promote the approaches used in Texas more widely and learn more about what's being done in other states. From the Plano Star-Courier (July 26):

Speaker of the Texas House Joe Straus recently announced that the president of the National Conference of State Legislatures has invited Representative Jerry Madden (R-Plano) to be the chairman of the Law and Criminal Justice Committee in the conference year ahead.

Madden served the past year on the LCJC as vice chairman, and said his new position will allow him to have more coordination with the staff and be more involved in national meetings.

“This is a great honor,” Madden said. “I’m very pleased to accept.”

Madden said the national committee allows him to keep tabs on programs implemented in other states that benefit their prisons and take those ideas to benefit the Texas prison system.

Congrats Rep. Madden on the well-deserved recognition.

Should officers who use drugs, lie to investigators, remain on police force?

This is not a Texas case but the difficulties faced by the Boston PD in disciplining bad cops come up again and again in the Lone Star State, particularly in agencies whose employment policies are governed by Texas' civil service code. Here are the opening lines to a Boston Globe editorial about the local PD's weak response to an egregious corruption case ("Too easy on rogue cops," July 9):

BOSTON POLICE Commissioner Edward Davis sent a weak message on police misconduct last week -- all the more so because it was timed to generate minimal publicity. The disciplining of officers in a steroid-use scandal deserves greater scrutiny, especially given the city's recurring problems with rogue officers.

Davis parceled out punishments ranging from written reprimands to a 45-day unpaid suspension to 11 officers who were involved in steroid use or had frequented an afterhours club in Hyde Park where drugs, alcohol, and prostitutes were present. The punishments are a byproduct of a federal investigation in 2006 that culminated in the arrest and lengthy imprisonment of three former Boston Police officers for protecting a large shipment of cocaine arranged by federal agents posing as drug dealers. The head of that protection racket, former officer Roberto Pulido, was a steroid user who also guarded parties at the after-hours club frequented by police.

Davis acknowledges that termination, not suspensions, would have been a more "appropriate punishment" for some of the officers who not only used illegal drugs but also lied about such use to the department's anti-corruption investigators. But like his predecessors, Davis says he is handcuffed by an aggressive union, contractual language that metes out light punishment for first-time drug violations, and labor arbitrators who overturn long suspensions and terminations.

Going forward, officers who used drugs and lied to anti-corruption investigators are worthless to the department: Even if they continue to perform police work, they can never be called to testify in court because they'd be easily discredited. If they'd lie to official investigators, who doesn't believe they'd lie to a jury?

Cops deserve due process rights just like everybody else, but the public also needs to be protected from corrupt law enforcement. When a department determines officers lied to investigators and participated in illegal drug markets, it's a grave disservice to the public to keep them on the force just because management fears the union's political clout.

Falsifying jail records punished inconsistently by Nueces Sherff

Not every case of falsifying government documents is created equal, apparently. According to an investigation by the Corpus Christi Caller Times ("Sheriff's deputies disciplined," July 26):

Four guards were discovered to have falsified logs at the Nueces County Jail on Sept. 2 of last year. They were reprimanded. Two guards accused of the same offense in a different incident five days earlier were fired.

Only two of six guards who allegedly falsified jail logs were fired and prosecuted. For the others, though, "Letters of reprimand, the punishment meted out to the four deputies in the Sept. 2, 2008, incident, is among the mildest of disciplinary measures for jail guards."

This case shows why departments need a uniform disciplinary matrix to mete out punishments in a more predictable fashion instead of according to the whim of the Sheriff or supervisors. Why should four officers receive only a letter of reprimand while others who did the same thing are fired and prosecuted? Seems like the backstory behind those decisions might be worthy of further investigation by the Caller-Times. I'm not sure anybody caught falsifying jail records should be employed as a peace officer.

Stronger probation praised in drug court setting

An item in yesterday's SA Express News featured coverage of the most recent graduating class in a San Antonio drug court ("Drug court participants celebrate new sobriety," July 25):

Drug courts — intensive probation programs that focus on nonviolent offenders with addiction problems — have been in existence around the country for two decades and in Bexar County since 2001, said County Court-at-Law No. 1 Judge Al Alonso. In that time, he said, the programs have proved to be more effective than any other way of dealing with offenders.

“It changes lives, saves money and reduces crime,” he said. “We've got to get off the mindset that we can punish someone out of their addiction.”

I find it remarkable that drug court programs have taken off so quickly in the past few years and been embraced so enthusiastically by judges and prosecutors. What's more, the "stronger probation" techniques used to manage drug court offenders offer an important model for successfully managing other types offenders in the community.

Many parts of the drug court approach (e.g., using progressive sanctions for violators instead of automatically revoking them to prison) are replicable in more traditional courts or can be applied to other common subsets of defendants with specialized needs. For example, in El Paso County, CO (Colorado Springs) they've established a specialty court to provide stronger probation for returning veterans who run afoul of the law, recognizing that these defendants face particularized circumstances that weren't being addressed by the court system.

At the end of the day, such tailored approaches improve public safety by focusing on helping offenders succeed on probation instead of encouraging them to fail. True, many defendants assigned to such specialty courts don't make it; but for those who do drug courts reduce costs for taxpayers and increase the likelihood they won't commit more crimes in the future.

UA lab workers in Bexar allegedly took bribes but no one reported crimes

Apparently the private lab providing urinalysis services to the Bexar probation department has more problems than just a shocking number of false positives; a couple of lab workers have been accused of taking bribes in exchange for false negatives, but nobody thought to inform police or prosecutors about the corruption and fraud. Reports the SA Express News ("Alleged bribery never probed," July 26):

Two technicians at a local urinalysis lab were terminated earlier this year after being accused of taking bribes from Bexar County probationers in exchange for clean drug tests, officials confirmed.

But police, prosecutors and judges were not notified of either the terminations or the allegations, which came on the heels of other controversies involving Victoria-based Treatment Associates, a urine-testing facility used by the Bexar County Community Supervision and Corrections Department.

Sheri Simonelli, president of the Central Texas Association of Public Employees, the probation officers' union, said two female lab technicians were accused in November of trading clean urine tests for $20 each. The technicians, who were not identified, were fired four months later.

Simonelli said probation officers have complained that Chief Probation Officer Bill Fitzgerald and his deputy, Kathleen Cline, didn't inform law enforcement authorities of the allegations.

“There was enough evidence to prosecute,” said Simonelli, who has a wrongful termination lawsuit pending against Fitzgerald and Cline.

Simonelli was terminated last year, shortly after she publicly accused Fitzgerald of not addressing probation officers' concerns about faulty drug tests. Former deputy probation chief Paul Kosierowski last week filed a wrongful termination suit alleging, among other things, that he, too, was terminated for speaking out about the drug tests.

Between the false positives and allegedly corrupt lab workers, it's hard to understand why the Bexar Probation department hasn't terminated this contract many months ago, much less why they wouldn't report bribery allegations to the authorities.

What's more, this isn't the first time officials discovered alleged corruption at the same urinalysis firm: "In 2004, the Federal Bureau of Investigation investigated claims that a Treatment Associates lab technician gave clean urine tests to federal probationers in exchange for sex. Adrian Barrientos was convicted and sentenced the next year."

Apparently district judges in Bexar see nothing wrong with the probation department tolerating corruption among its vendors. District Judge Raymond Angelini told the paper “It wasn't up to [Bill Fitzgerald] to investigate” because “Treatment Associates was responsible for investigating its own employees.”

I don't buy that for a second, though! Who believes that if the probation department discovers that its vendor is engaging in bribe-taking and fraud, they have no obligation to report the crime? Next they'll tell us law enforcement shouldn't pursue charges against Barrio Azteca members because it's up to the gang leader to alert authorities of any wrongdoing.

Perhaps understandably, since they were the ones being left in the dark, the local DA's office has been the source of the most vociferous criticisms over this fiasco:

Because of Treatment Associates' troubled history, the union, some local judges and prosecutors said Bexar County should cease its contract with the company.

“They need to get a different company or confirm the samples or do something to show testing is reliable,” said First Assistant District Attorney Cliff Herberg.

The District Attorney's Office last year adopted a policy that prohibits prosecutors from filing motions to revoke probation based solely on a single dirty urine test. Prosecutors now require a second test to confirm the results.

Probation officials and prosecutors have yet to agree on who should pay for the follow-up tests.

“Basically,” Herberg said, “there hasn't been anything done by the probation department to alleviate the lack of trust in the testing system.”

Finally, arguably the most significant development mentioned in the story was Paul Kosierowski filing a wrongful termination lawsuit last week claiming he was fired for complaining about flaws in the urinalysis lab. Paul K was formerly the number two man under Bill Fitzgerald and was widely respected among his peers and others around the state in the probation profession. Lending his voice to substantive legal critiques of the director in court is an even more ominous development than the many other suits against the department.

A reader sent me a copy of Kosierowski's suit which I've yet to read, but when your former #2 decides to take you to court, there's clearly great cause for concern. Litigation by probation officers or the union is one thing, but Fitzgerald's former second in command is more likely to know details of top-level decisions and have a pretty good idea where most of the bodies are buried.

Note to readers from Bexar CSCD: I know these are emotional issues, but please refrain from name calling and ad hominem attacks, whether they're about co-workers or agency management. Try to discuss the issues, not personalities.

Dallas jail improved but still struggling

Kevin Krause at the Dallas News Crime Blog has a several informative blog posts (the first two based on internal, linked memos) that deserve attention from anyone watching the saga surrounding Dallas jail administration:

• Dallas County lawyers get majority of jail lawsuits thrown out
• Dallas County jail guards may have to stay on past their shifts
• Dallas County jail guard arrested for having sex with inmate
  

Can "czar" help Harris jail overcrowding?

In the wake of a harsh findings letter from the US Justice Department that could presage federal litigation, Harris County has created a jail "czar" position which will be held by former District Judge Caprice Cosper. But whatever she's able to accomplish won't stop the Harris Jail population from expanding in the near term, as evidenced by the county seeking more contract beds in Jefferson County (Beaumont).

From my perspective, the two biggest drivers at the Harris County Jail of both overcrowding and cost are excessive pretrial detention and the evolution of the jail into the county's main mental health treatment facility, both of which will require more than "coordination" by a "czar" to fix.

That said, the solutions, at least, are fairly clear: 1) Convincing judges to expand the use of personal bonds instead of requiring bail for low-level offenses, and 2) expanding outpatient mental health services, housing and specialized community supervision through the probation department (including making sure they take their meds) for mentally ill offenders, particularly those who are frequently in and out of the jail on low-level offenses.

The first is almost purely a political problem of convincing local elected judges to change their bail decisions; the second is mostly an issue of resources, with responsibility lying chiefly at the feet of the county commissioners court and the local MHMR authority to provide community-based alternatives to jail.

I've asked the Harris County Sheriff's PIO office for a copy of the consultant's study that recommended creating the "czar" position, so I'll have more on this subject after I finally review that document. The same consultant analyzed the Harris Jail four years ago and this Grits series adumbrated at that time many of the same recommendations about which the county is finally (apparently) getting serious now.

Forensic Science Commission to review Willingham, Moon cases

If this blog were a paid gig, I'd be headed off to Houston to attend the Texas Forensic Science Commission meeting first thing tomorrow morning, but after hemming and hawing over the cost I think I have to pass. Looks like an interesting agenda, though (see the opening meetings page at the Texas Register).

For starters, they're going to review the Cameron Willingham/Ernest Willis arson investigations and make decisions about next steps in the case. Those two men were convicted of arson based on identical (flawed) forensic testimony, but Willis was later exonerated while Willingham was sentenced to death and executed.

They'll also review the Brandon Moon case and consider whether to post a contract to investigate it in the Texas Register. This is another instance of flawed forensics, this time out of El Paso involving the Lubbock division of DPS crime labs. In that case, DPS and local prosecutors knew for eight years about the exculpatory evidence but nobody came forward to insist Brandon Moon be released. Brandon's a great guy who I've gotten to know through working with the Innocence Project, and I'm interested to learn what they're doing on his case.

The gathering will also receive a briefing on the "status of legislation involving (the) commission."

Hopefully some local reporter(s) will cover the event, or else perhaps some Grits reader who's able to make it can take detailed notes and let us all know what happens there.

Texas Monthly previews upcoming Sharon Keller ethics trial

In preparation for her upcoming trial beginning August 17 in San Antonio, Texas Monthly has put Michael Hall's August profile of Texas Court of Criminal Appeals Presiding Judge Sharon Keller on its public web site, featuring an indepth look at the circumstances surrounding what he calls "the most infamous phone call in recent Texas history"and the backlash that arose in response. Hall writes that Sharon:

Keller—long mocked by defense lawyers, judges, and state legislators as “Sharon Killer”—has brought negative publicity to the CCA before, but nothing like this. It will get worse when the trial begins, on August 17, in the San Antonio courtroom of district judge (and former CCA judge) David Berchelmann Jr. “It’s going to be a donnybrook,” said Cathy Cochran, one of Keller’s brethren on the CCA. Judge will testify against judge. The shroud of secrecy will be lifted—and not only from the court. Keller has been one of the more mysterious judges on the bench, a modest, private person not given to publicity (she declined to be interviewed for this story) who lets her conservative decisions do her talking.

Hall has much more in this long feature, as well as an update on the so-called Mineola Swingers Club cases--the next case has been rescheduled for August 3, after Judge Skeen completes a series of evidentiary hearings into several Brady issues. Both stories are worth checking out.

Expanding ranks of Texas lifers part of national trend

There's been lots of good discussion, some of it rounded up by Doc Berman here, of a new report from the Sentencing Project titled "No Exit: The Expanding Use of Life Sentences in America" (pdf), so I thought I'd pull out a few highlights and Texas specifics:

Texas has both life sentences which are eligible for parole (most of them) and also life without parole (LWOP). The latter in Texas is only a sentencing option in capital murder cases and as of 2008, just 71 Texans had received LWOP sentences, according to the report, while 8,558 offenders (6.1% of TDCJ's total inmate population) were serving life sentences in Texas adult prisons but will ultimately be eligible for parole. "However," as the Sentencing Project correctly notes, "eligibility does not equate to release and, owing to the reticence of review boards and governors, it has become increasingly difficult for persons serving a life sentence to be released on parole."

Six states and the federal government have only LWOP sentences, says the Sentencing Project. The total number of people nationally serving life sentences quadrupled in the last 25 years, with just 34,000 total prisoners serving life sentences in 1984 and more than 140,000 in 2008.

Among Texas lifers, 43.5% are black, according to the report, 33.8% are white, and 22.0% are Hispanic. There are 422 juveniles mixed into the totals for Texas lifers - about one in 20 out of all life sentences. Three of those juveniles are sentenced to life without parole, but going forward that penalty was abolished for juveniles by the 81st Texas Legislature. Out of those 422, thirteen juvenile girls are serving life sentences.

Notably, California uses life sentences much more liberally than Texas, particularly for juveniles but really for everybody. In a prison system just a little larger than ours (serving a population that's 60% greater, it should be added), a whopping 20% of all California prisoners are serving life sentences compared to just 6.1% in Texas. Of the more than 34,000 lifers in California, 10.8% are in for LWOP.

Does anyone wonder why California is cutting prisoners loose because it can't afford to incarcerate them all?

RELATED: Many states considering early release of prisoners.

MORE: Diane Jennings at the Dallas News Crime Blog offers up this helpful background:

In 1998, after Texas got "tough on crime," mandating minimum sentences of 30 years before becoming eligible for parole on a life sentence, and 40 years in capital murder cases, my colleague Bruce Tomaso and I wondered how many inmates had actually done that much flat time. We were startled to learn that Texas and other states had little experience with long term incarceration: At that time, 11 Texas inmates, out of a prison population of 143,000, had actually served 30 years flat, but the state was then sending 400 new lifers a year to prison.

Officers behaved "stupidly" but may have been trained that way

You know when the President of the United States calls a police officer's decision "stupid" in a primetime press conference that your department has had a particularly bad day, one that's going to reverberate in the national conversation about racial politics for quite a long time.

Obama was talking about the remarkable arrest of Harvard professor Henry Louis Gates in his Cambridge home for disorderly conduct after a neighbor called police thinking he was a burglar.

Having read several accounts of the incident, I think its root cause may or may not have been racial but was much more definitely the result of basic police training regarding how officers are taught to engage with the public. In this case, even after learning that Gates was in his own home and they'd been called out based on an error, officers still wanted to maintain a "command presence," in the policing lingo, and Professor Gates apparently was having none of it.

To be fair, Gates indulged his own frustrations and acted unwisely. The proper approach IMO would have been, after establishing he was in his own house, to repeat like a mantra, "Please get off my property, please get off my property ..." No need to argue or attempt to reason with police when his goal should be for them to leave.

Still, the "I'm in charge here" bluster by police heightened tension in a confrontational situation instead of defusing it and the end result was the President calling the cops "stupid" on national TV. To the extent it was "stupid," though, it's also worth remembering it's probably exactly how the officers were trained to behave, whether they're dealing with a black man caught breaking into his own home or some blogger who's babysitting while white.

Texas Tech will stop performing autopsies

Dozens of West Texas counties face a transition and possible vacuum regarding who will provide autopsy services for the region, with the Texas Tech Health Science Center backing out of the arrangement, according to a report in the Abilene Reporter-News ("Texas Tech to stop performing autopsies, July 22"). Lubbock County, at the end of the day, may wind up providing those services, but they're having trouble recruiting enough doctors to perform the task:

More than 80 counties have received a letter that Texas Tech University Medical Center will be getting out of the autopsy business by August 31, which means several counties throughout the Big Country will have to seek other providers.

The medical school is doing out of county autopsies until Sept. 1. Lubbock County officials say they are not prepared to take on all out-of-county autopsies just yet because more doctors must be hired.

“I sent out the letter and it was our intention to be able to pick up all of the out-of-county autopsies by Sept. 1,“ said Lubbock County Judge Tom Head. “But we have not had success in recruiting the doctors we need to provide the service.”

Head said three to four more doctors must be hired to handle the volume from out-of-county autopsies. ...

When UMC was handling all of the autopsies, between 750 and 900 were performed annually, including those for Lubbock County.

It's hard enough to draw doctors to West Texas to treat people, much less to perform autopsies, so it's no small dilemma if Lubbock can't find enough medical examiners to perform these tasks. In the meantime, some counties will have to use facilities in Dallas and Fort Worth or contract out to private labs.

At the tail end of the article, we get a little more backstory about why Texas Tech won't be performing autopsies anymore:

A Central Texas document investigator challenged the legality of the UMC office last spring.

State law describes medical examiners as licensed physicians employed by a county, but the office is not included in the Lubbock County budget. All counties needing forensic services contracted with Tech, rather than the county. Tech and county attorneys said the arrangement followed state law.

Health Sciences Center officials described the program last summer as an important chance to recruit and train rare specialists for high-quality work, but announced in early August that Tech would no longer handle the program.

Who was this mysterious "Central Texas document investigator," one wonders (and where can I get one of those "document investigator" jobs?). I'm surprised the Legislature wasn't asked to authorize the arrangement during the recent session; I doubt it would have been controversial.

In any event, maintaining sufficient capacity for high-quality, on-demand forensic services in sparsely populated areas is no easy task, and as evidenced by this example, it's not always clear exactly whose responsibility it is.

MORE: On the "mysterious document investigator," from a knowledgeable reader via email:

I'm fairly certain that the mysterious "Central Texas document investigator" is a guy named David Fisher, a professional expert witness who's made a specialty out of tearing apart autopsies for defense attorneys in murder cases -- usually by going after the qualifications of staff at the medical examiner's office. ...

From what I can tell, his underlying message is that the medical examiner's system in Texas is corrupted beyond belief and is too closely allied with the law enforcement community. Medical examiners are too poorly trained, too willing to go with whatever conclusions support the investigations of law enforcement, and too often left to operate with no one watching over them.

In addition to the stuff in Lubbock, he got the medical examiner in Hidalgo county booted a few years back because the guy didn't actually have a license. He's also made waves in the Bexar County and Travis County MEOs lately if I'm remembering correctly.

Proposed DPS rule would create new Indigence program for 'Driver Responsibility' surcharge

As I mentioned last week, the missus and I have been working on a little side project to propose changes to agency rules to the Public Safety Commission to establish an indigence program for Texas' Driver Responsibility surcharge. Today I sent out this letter to friends and allies among criminal justice reformers who may have an interest in supporting this proposal. Here's the text of that letter (edited slightly for context and to add hyperlinks). Anyone else interested in supporting this proposal can shoot me an email or leave a comment below.

Dear friends and compadres,

This quick note is a request for your support for a petition for rulemaking (see the petition) which will be filed with the Department of Public Safety next week to modify the rules that govern the so-called "Driver Responsibility Surcharge."

This surcharge is a civil penalty (that must be paid in three consecutive years) tacked on by the Legislature in 2003 in addition to criminal fines for certain traffic violations - most notably DWI, no-insurance, driving with a suspended license, and a lesser surcharge for drivers who accumulate a record of moving violations over time. (See more detail here.) The program has expanded until today the surcharge is owed by 6% of all Texas drivers, nearly 2/3 of whom cannot pay. The Legislature authorized an "indigency" program which DPS must implement by Sept. 1, 2011, but this proposal requests that DPS implement those changes immediately as well as create "amnesty" and "incentive" programs which were authorized in 2007 by SB 1723.

In particular, I'm looking for organizations and/or prominent individuals willing to endorse the proposed changes, as well as for folks in Austin who're interested in physically signing the petition for rulemaking. If after reading the draft amendments to the Texas Administrative Code proposed in this petition, anybody has significant suggestions or comments about the proposed rules (much of which tracks language in the recent DPS Sunset bill, but some of which is new), I'd certainly be happy to entertain them. I've little doubt these proposals may change, perhaps significantly, as they traverse through the rulemaking process - this petition merely aims to get the ball rolling.

If this issue doesn't interest you or seems outside your bailiwick, stop reading here and I apologize for wasting your time. For those who are interested, please indulge me just a moment to describe the Driver Responsibility Surcharge and the reasons for supporting these particular rule changes at this time to the Public Safety Commission. See also recent coverage from Grits for Breakfast. There's also a version of the draft rules posted online here.

Texas has assessed more than $1.5 billion in surcharges since 2003 but only successfully collected just over $400 million of that amount. The vendor takes 4% off the top. After that, by law 49.5% of net revenue from surcharges goes to Texas’ trauma center hospitals, 49.5% goes to state General Revenue, and DPS keeps 1% as an administration fee. While the number of Texas drivers getting these surcharges is high (about 6% of all drivers, at this point), collections rates are strikingly low (36% overall, according to the collections vendor).

The main problem in practice is that indigent people or low-income people just can’t afford all this money in addition to already steep fines and mandatory insurance coverage. People who don’t pay their surcharge lose their drivers license, inevitably continue to drive, and thus rack up more surcharges in addition to their traffic fines. An ultra-punitive approach set out in DPS rules for these surcharges exacerbates the problem with short payment periods and limited paths to get back on track. The Legislature gave DPS authority to fix the program in 2007 with the passage of SB 1723, which authorized but did not mandate "indigency," "amnesty," and "incentive" programs.

Slow to move on these ideas, the Public Safety Commission authorized but never implemented a very limited incentive program in the fall of 2008, just as lawmakers were returning for the new session. While claiming to be an amnesty and indigency rule, it is really just a minimalist "incentive" plan and does little to fix the underlying problems that result in high nonpayment rates.

So this 81st legislative session, lawmakers got serious (Sylvester Turner authored the relevant amendments) and did something very positive for low income people Texas drivers generally—IF the Department of Public Safety implements it properly, and soon. The Legislature mandated that DPS create an “Indigency” program and changed the minimum payment requirements to give people more time to pay. The new law (H.B. 2730) mandates the creation of the indigency program by September 1, 2009 [Sec. 6.10 of the bill] and mandates certain standards for the program by 2011 [Sections 15.01-15.08 of the bill].

At first, DPS' General Counsel said they needn't implement any indigency program for another two years, but most other observers including the District and County Attorneys Association interpret the Sunset bill's language in Section 6.10 to require some sort of indigency program go into effect at the beginning of the next fiscal year. By submitting this petition with 25 signatures, under state law the PSC is required to at least has to give the issue a hearing.

I realize it's a little unusual for a blogger to take the lead proposing changes to state agency rules - perhaps stretching the term "advocacy journalism" a tad further than its more typical and familiar usage. But I've been following these legislative changes closely and writing about the issue for years, so my better half Kathy Mitchell and I decided to develop this proposal ourselves and bring it forward independently, making the case for more consumer-friendly provisions in the rules directly to the Public Safety Commision.

To their credit, the PSC was genuinely receptive when I spoke to them on this topic last Thursday and the chair established a subcommittee of the board to work on the topic. Submitting this petition will require them to at least give the idea a hearing and let advocates make the case that the surcharge needs to be scaled back substantially.

Other things you can do to help even if you can’t physically sign the petition:

• Allow me to list you as an endorsing organization or individual, even if you do not formally sign the petition letter.
• Write individual or organizational letters of support to the Public Safety Commission before the public hearing.
• Comment on the rules when they are published in the Texas Register. I will notify everyone when rules are published for public comment.
• Use any email alerts, listservs or other means at your disposal to encourage your group's members to respectively, constructively voice their support to the PSC.
  
• Attend the public hearing and testify: I believe we will easily get the 25 signatures required for a public hearing. At that time (probably in September), I would love for you to come support the rules changes at the PSC.
• Help me identify other groups or individuals who might support this proposal and convince them to voice their support. I'm looking for support from across the political spectrum: to my mind this should be a nonpartisan issue.
• Contact the Governor in support of the proposal after the public hearing.
• Keep me in the loop about any communications by your group, etc., so I can promote this brief campaign on Grits for Breakfast and give credit to everyone who's supporting it.
  

I will send a final version of the attached letter to the Director of the Department of Public Safety along with the requisite 25 signatures early next week. That will launch formally a process that is likely to take at least 60 days and result in a public hearing over the proposal.

Thanks in advance for any support you can provide for what I hope will be a brief and productive mini-campaign over the next couple of months.

Sincerely,

Scott Henson

www.GritsForBreakfast.org

shenson@austin.rr.com

California will release older inmates to save medical costs

Via Doc Berman, the LA Times gives more detail about the final deal cut by lawmakers on slashing the California corrections budget, and I was interested to see they'd included an idea which drew a lively discussion on Grits yesterday about releasing older inmates to save money on medical expenses:

The prison plan would give state corrections officials authority to allow any inmate with 12 months or less on his or her sentence to serve the remaining time on home detention with electronic monitoring.

Inmates who are over 60 or medically incapacitated could also get home detention or be confined in a hospital. In addition, inmates who achieve milestones in rehabilitative programs, substance abuse treatment, vocational training or education could receive up to six weeks off their prison terms.

The plan includes Schwarzenegger's proposal to release and deport illegal immigrant felons, and a scaled-down version of another proposal of his to change some felonies to misdemeanors so inmates could be held in county jails instead of prisons. Sentences for property crimes also would be scaled back.

A "Parole Re-Entry Accountability Program" would reduce the state parole population by 46,000 -- more than a third of those now under supervision -- depending on their crimes and behavior. Those former prisoners convicted of the least serious crimes would not be subject to parole revocation that could return them to prison.

Texas' chief court administrator launches new blog

Let me refer readers to a new blog called "CourTex" authored by Carl Reynolds, head of the Texas state Office of Court Administration, a former Department of Criminal Justice General Counsel, and a truly knowledgeable insider on the politics and policy of the subjects he works on. This makes him easily the highest profile Texas state agency head to operate a blog related to the subject matter from his job.

Carl kicked things off by providing a number of links to critical information about Texas courts online, continuing with a Legislative Report, a discussion of strategic trends facing court administrators, and an informative, link-filled post about state-level "judicial commissions on children."

I've temporarily taken Grits' blogroll down to spend some time updating and revamping it this summer, but when it reappears, Courtex will be on there.

New Rule: Nobody making arrests for overdue library books gets to complain about jail overcrowding

In Wichita Falls, economic distress is boosting incarceration rates in the local jail because so many more petty defendants can't afford to post bond. According to the W-F Times-Record News ("Room scarce at jail," July 22)

The number of people coming into the jail every day essentially hasn’t changed, [Chief Deputy Derek] Meador said. What does seem to be different now, he and Sheriff David Duke said, is that in many cases, people are coming in and staying for longer periods.

People arrested for offenses such as unreturned library materials tend to post bond quickly and then leave.

“The persons who don’t fit in that group are staying longer,” Meador said. Some might take 10-12 days to gather the funds necessary to post bond when it might have taken a day or two before. In some other cases, people come in on felony charges and can’t make bond.

During the meeting, Duke gave the example of someone in jail on a drug-related charge — possession of certain chemicals with intent to manufacture a controlled substance — with bond set at $20,000.

A year ago, “They got out the next day,” he said. “Nowadays, they’re staying.”

First things first: Nobody who's arresting people for overdue library books gets to complain about jail overcrowding. Period. That part cracked me up. Tallying up the costs of using police and the jail that way, in short order it'd be cheaper to replace the books!

What's more, if there are large numbers of misdemeanants waiting 10-12 days to post bond, that's the fault of local judges for setting bails too high for petty offenses and not giving enough personal bonds where the offender is not a significant flight risk. At some point in a declining economy, elected officials must use some common sense and prioritize scarce resources based on public safety.

Regrettably, no mention was made of new tools given to law enforcement by the Legislature in 2007 to reduce jail overcrowding: Officers may now issue citations instead of making arrests, at their discretion, for a number of common, low-level nonviolent misdemeanors, though only a few agencies have used the new authority.

In the current budget environment, it wouldn't surprise me if that changed in the near term, as tight county budgets dominated by jail spending begin to trump the habitual "soft on crime" carping because it's too expensive to incarcerate every petty misdemeanant, and of course, recalcitrant local readers. At a minimum, it'd be nice to see local media making such options part of the conversation about jail overcrowding.

Lubbock taxpayers eating costs for overbuilt jail

In Lubbock County, a new jail that the commissioners court claimed would generate revenue and reduce burdens on taxpayers is gobbling up the county budget and squeezing out other priorities, the Lubbock Avalanche Journal reported ("County budget jailed," July 22):

With commissioners still days away from knowing how much tax revenue they may expect, employee raises, new hires to handle growth and long-planned projects seemed set to wait until next year.

"We're held hostage, more or less, by the jail," County Judge Tom Head said.

The budget process began this year with a letter from Head to elected officials and other department bosses asking for no increases in their budget requests for the next year.

Jail costs, as well as the county's newly created medical examiner's office, became priorities over the last year, he said.

The Texas Tech Health Sciences Center informed Lubbock County last August that they would stop providing medical examiner services by September of this year. The county had already taken over much of that work - a new, $1.7 million department appeared for the next fiscal year.

That paled next to the more than $20 million dedicated to the jail, amounting to nearly a third of the county's general fund.

Commissioners had expected the facility to generate its own revenue from federal and out-of-county inmates at this point. The county instead shipped prisoners to other jails at a cost of $250,000 a month and collected $4,500 a day from the contractor for each day work continued on the building beyond its planned opening date.

"We thought that when we were at this point, this year, we would have been in there and not upside down as we are with out-of-county inmates," Commissioner Patti Jones said.

This is another example of a county building excess jail capacity on a speculative basis hoping to profiteer off incarceration and produce revenue. Instead, perhaps predictably, at the first sign of economic downturn the strategy falls flat. Exacerbating the problem, the Texas Department of Criminal Justice has stopped leasing beds from county jails because of its own successful efforts to keep the state prison population under control.

Lubbock isn't the only county whose jail eats up an overwhelming portion of the county budget, but commissioners' desire to make money off incarceration instead of just building to meet local needs has now put local taxpayers in a position of paying for an expensive albatross with little benefit to public safety.

TDCJ: Paroling older offenders could save Texas $49 million per year

Thanks to the addition of billions in federal stimulus funds and a now-vanished revenue infusion from high oil prices last year, Texas was able to stave off the kind of serious state budget crunch in 2009 that's crippled California and put the pinch on dozens of other states. The effects on criminal justice in California have been extreme, from the Los Angeles Sheriff choosing not to pay DNA testing in rape cases to slashing prison guard salaries by ten percent, the Golden State is taking radical steps to stay within its budget.

By comparison, Texas prison guards got 3.5% raises this year in an effort to reduce understaffing and the state financed modest increases to diversion and treatment programs to keep from building more prisons. Looking forward, though, by 2011 most official estimates see Texas experiencing severe if delayed effects in the state budget from a slumping economy, meaning legislators will be faced with cutting the budget or dipping into the state's "Rainy Day Fund."

At that point, legislators will be looking for places to cut, and this morning I ran across a brief, two-page report (pdf) on the TDCJ publications page that tells them how to save $49 million per year right off the bat. (It was published in December but I hadn't seen it before now and the Lege didn't act on the information this session.) According to the analysis, performed in response to HB 429 passed in 2007, the:

aging of the offender population has a demonstrated impact on the resources of the health care system. Offenders age 55 and older access the health care delivery system at a much higher level and frequency than younger offenders. Encounter data indicates that offenders aged 55 and over had a documented encounter with medical staff almost three (3) times as often as those under age 55. In terms of hospitalization, the older offenders were utilizing health care resources at a rate of more than four (4) times higher than the younger offenders. The 55 and older offenders comprise about 6.8% of the overall service population and yet account for more than 30.5% of the hospitalizations.

TDCJ incarcerated more than 10,950 offenders over the age of 55 as of Aug. 1, 2008, the agency reported; about 5,000 of them are not serving time for so-called "3g" (violent) offenses. (More than 60% of offenders in TDCJ's institutional division are eligible for parole, according to the agency's annual statistical report - pdf, p. 15). Paroling those offenders, said the agency, would save the state more than $20 million annually in off-site medical costs, at a minimum, as well as reduce the burden on internal TDCJ medical systems.

In addition, paroling 5,000 offenders would save money by allowing the state reduce its reliance on private prison contractors:

Based on the most recent LBB offender population projections ... a reduction of 5,000 incarcerated offenders could eliminate the need for contracted temporary capacity, currently 1,899 beds, reducing current agency expenditures by approximately $29 million annually.

So when Texas legislators start talking about budget cuts, TDCJ has identified $49 million per year the state could cut from the prison budget that should be discussed well before anyone starts talking about reducing staff pay.

Texas Tribune will compete with public policy coverage, original reporting

Congrats to Texas Monthly publisher Evan Smith who recently announced he'll leave his current position to launch a nonprofit media venture, The Texas Tribune, as an online, state-level news organization competing for coverage with the dailies from an entirely Internet-based platform. According to the Austin Statesman:

Evan Smith will become CEO of the Texas Tribune, a venture he's been working on for several months with John Thornton, a general partner of the Austin Ventures venture capital firm.

The Texas Tribune is intended to be a nonprofit entity that will publish original reporting — to be made available for free on the Tribune's Web site — and organize conferences and other events.

Smith said there will be two coverage areas: state politics and public policy. He envisions the Texas Tribune pursuing "deep-dive reporting on the big issues that are affecting Texas," such as low voter turnout, border issues, education, energy and the environment.

They also got a nice writeup in the New York Times' Media Decoder blog. Emily Ramshaw of the Dallas News was the first MSM reporter to announce she's jumping ship and joining the new venture, as announced on their Facebook Page. (You can also sign up here for announcements about their launch.) Good luck to all! If anybody can pull this off, Evan's probably just the guy to do it.

Deputies allegedly in pocket of 'outlaw motorcycle gang'

Having yesterday highlighted the case of a federal probation officer allegedly providing intelligence to smugglers from a drug cartel, I should mention another case identified by Drug War Chronicle out of the Texas South Plains featuring similar allegations:

In Lubbock, Texas, two Hockley County sheriff's deputies were arrested last Friday as part of a 110-count federal indictment aimed at the Aces and Eights outlaw motorcycle gang for a methamphetamine trafficking conspiracy. Deputies Gordon Bohannon and Jose Quintanilla are accused of providing gang members with information that hurt efforts to shut down the conspiracy. They and the other 28 defendants are all charged with conspiracy to distribute and possess with intent to distribute 500 grams or more of meth, which carries a mandatory minimum 10 year prison sentence. Other defendants face additional charges.

The idea of deputies in rural Hockley County operating in league with an "outlaw motorcycle gang" reminds me of the plot of the TV show Sons of Anarchy.

Inevitably such incidents are treated in the press as isolated cases that aren't indicative of any broader problem, but taken together the string of corruption cases we've witnessed in Texas has been both remarkable and alarming.

MORE: Phone recordings reveal new details in Hockley County drug investigation, from KBCD News. Also:

Click on the following document links to read the prosecution's reason for warning [Chief Deputy] Gordon Bohannon locked up between now and his trial date.

• Bohannon Detention Proffer 1 of 6.pdf
• Bohannon Detention Proffer 2 of 6.pdf
• Bohannon Detention Proffer 3 of 6.pdf
• Bohannon Detention Proffer 4 of 6.pdf
• Bohannon Detention Proffer 5 of 6.pdf
• Bohannon Detention Proffer 6 of 6.pdf

Probation officer screened job applicants for drug cartel

Yet another bribery case has cropped up involving a criminal justice worker on the Texas border with the arrest of federal probation officer Armando Mora last week in McAllen. Reports the American Chronicle ("Federal probation officer charged with drug trafficking and bribery," July 20):

According to allegations in the criminal complaint, Mora received bribe payments from members of a drug trafficking organization to provide sensitive and confidential information from government records. It is alleged before the drug trafficking organization considered hiring drivers for their tractor-trailers to transport its drug loads, it would provide personal information - full name, commercial driver's license number and date of birth - to Mora, who in turn would obtained confidential and sensitive information from government sources about whether the prospective driver was on probation or supervised release or had any outstanding arrest warrants. If Mora reported no such warrants or supervision, the drivers would be hired. On the other hand, the complaint alleges that on at least two occasions in May and June 2009, Mora allegedly advised the drug organization not to hire three drivers telling a member of the drug trafficking organization that two of the drivers were undercover agents and the third was one of his own supervisees and and an FBI informant. In June 2009, Mora is alleged to have received $5,000 from a member of the drug trafficking organization for providing the confidential information regarding the third driver.

Obviously ratting out undercover officers puts federal agents at risk. I also have a big problem with using probationers as drug informants, for reasons identified earlier this year by Bobby Frederick at the South Carolina Criminal Defense Blog:

If a person is trying to get clean or stay clean, they cannot repeatedly go into houses and make drug deals - sooner or later they will use and their recovery will be blown to bits. Many narcotics officers do not care if you stay clean or not - you are a tool that they use to do their job for them. Many narcotics officers do not care that you are placing yourself in danger - again, you are a tool that they require to make drug arrests. Rachel Hoffman's death in Florida, although tragic, was representative of the ethics problems that narcotics officers often ignore in their work and thankfully brought national attention to the problem.

There is a fundamental contradiction between policy goals when a probationer is used as a drug informant. Putting someone on probation instead of sending them to prison implies both that the court viewed them as not dangerous enough to require incarceration and also that they're capable of possible rehabilitation. But if that person is sent back over and over into drug environments by the state, it's nigh on impossible to make the kind of clean break from reoffending and drug use that rehabilitation requires.

In this particular case, what kind of message does it send to learn that the FBI and federal probation officers knowingly encouraged an offender under federal supervision to apply for a job as a driver making drug shipments?

In the bigger public-policy picture, this example shows why anti-corruption efforts deserve greater priority in the enforcement battle against multinational drug cartels: One corrupt official can easily thwart the work of many, many others in the system, and too often that's exactly what happens. Americans tend to think of public corruption as more typically a Mexican problem, but we've seen far too many examples of corruption on the US-side of the border to take much comfort in such stereotypes.

Tulia Ten Years Later

The Amarillo Globe-News today has a feature commemorating the tenth anniversary of the Tulia drug stings ("Tulia drug busts: 10 years later," July 19), which informs us that, to this day:

Many Tulia residents and those associated with the July 23, 1999, raid by numerous law enforcement agencies shy away from talking publicly about the incident that catapulted the Swisher County town of about 5,000 into the spotlight and brought the discussion of small-town racism to the forefront. For some, including many of the 47 defendants arrested, the calamity of the investigation and the ensuing drama remains a wound that has not healed.

The episode began when dozens of people - most of them poor, African-American and with prior run-ins with the law - were hauled from their beds and paraded in front of local media on the morning of July 23.

The arrests were the culmination of a monthslong investigation by the Panhandle Regional Narcotics Trafficking Task Force, with much of the work conducted by undercover officer Tom Coleman. Many of the defendants were subsequently given long prison sentences by juries, and others accepted plea bargains.

But cases that first appeared solid began to collapse as Coleman's testimony drew greater and greater scrutiny. It was ultimately determined that Coleman was not credible after he gave conflicting testimony in court. Meanwhile, it was revealed that he had been arrested for theft, a charge for which he was never convicted. But his arrest was initially withheld from the defense, further eroding the credibility of the prosecution.

In the end, 35 defendants were pardoned by Gov. Rick Perry on Aug. 22, 2003, and taxpayers in 17 of the counties that participated in the regional task force paid them about $5.9 million as part of a settlement. The defendants split about $4 million, and attorneys were paid the rest.

Housing the incarcerated defendants was estimated to have cost Swisher County residents about $230,000, which translated to a 5.8 percent increase in county property taxes, according to the county in 2000. In April 2003, the county also agreed to pay $250,000 to the defendants in exchange for immunity from civil lawsuits.

In the end, all of Texas' drug task forces were ultimately consolidated under the Department of Public Safety and later disbanded by Governor Perry when other scandals kept cropping up in town after town across the state.

We tried after the Tulia scandals to convince the Texas Legislature to require corroboration of some sort in undercover drug buys like those Tom Coleman supposedly performed, but they extended that corroboration requirement only to informants, but not to peace officers. Thus now, ten years later, despite the fact that Tom Coleman was later convicted of perjury, the state can still obtain convictions based on the uncorroborated word of a single undercover officer.

That was actually the biggest lesson from the Tulia case for me: I took away no conclusions about racism or small-town bigotry, but instead gained a new understanding of what constitutes a fair trial. The Tulia cases were where I learned that, even though juries supposedly convict when they conclude someone is guilty "beyond a reasonable doubt," the law actually does not require the state to present sufficient evidence to reach that high threshold when testimony from a single person can convict. That's true even if that person is wearing a badge, and undercover drug stings aren't the only place in criminal law where that problem comes up.

See also a short video from the Globe-News featuring brief interviews with participants.

MORE: From Rev. Alan Bean at the Friends of Justice blog. As backgrond, Alan was a principal in the local Tulia organization, Friends of Justice, that formed to rally support around the case. Since then he's moved to the Metroplex and has been working on a variety of other civil rights cases including in Jena, Louisiana.

Texas sex offender registry includes kids as young as ten

In the Dallas News this morning, Diane Jennings has a story on Texas' policy of allowing judges to place juveniles as young as 10 years old on the sex offender registry ("Some say sex offender registry ruins a juvenile's 2nd chance," July 19). Here's how the article opens:

The faces of child sex offenders are startling – chubby cheeks, big eyes, a mop of hair, or wispy strands held back with barrettes. The descriptions on Texas' public registry are equally jolting: 4 feet tall, 65 pounds; 4 feet, 2 inches, 70 pounds.

"Those are not the people that we're walking around terrified of," says Michele Deitch, a University of Texas law professor.

The inclusion of children as young as 10 on the state's public sex offender registry is a little-known policy – even to juvenile justice experts such as Deitch.

"I'm absolutely a little bit shocked that kids that young can be on the list," says Deitch, who teaches juvenile justice policy at the LBJ School of Public Affairs.

She's stunned because public registration contradicts the purpose of juvenile justice: to give kids a second chance. In the case of some juvenile sex offenders, their criminal records are off limits, but information about their crime is easily accessible on the Internet.

"It is a terrible situation," Deitch says. "The juvenile justice system is designed to rehabilitate kids and to make sure that they can change."

According to the Texas Department of Public Safety, there is no minimum age for inclusion on the state list. But a child must be at least 10 to be handled by the state juvenile justice system, so a judge may order an offender that young to register.

Indeed, writes Jennings, "according to a Dallas Morning News analysis of the Texas sex offender registry, there are about 4,000 people on the registry who were younger than 18 at the time of their crime, including 1,004 younger than 14." Even folks over at the Texas Association Against Sexual Assault were "stunned" that children so young were required to register. I actually was aware (from reading the law) that it was possible for children that young to wind up on the registry, but I had no idea that one-quarter of the juveniles registered were under 14 when they committed their offense.

Fallible Fingerprints: The Dustup over Cognitive Bias

I just ran across a lengthy, excellent article on the sources and frequency of error in fingerprint forensics, published in the online magazine MillerMcCune.com last month: "Bias and the Big Fingerprint Dustup" (by Sue Russell, June 18). Here's how the story opens:

In 2004, cognitive neuroscientist Itiel Dror and Dave Charlton, a veteran fingerprint examiner and doctoral candidate, chatted over coffee in a Brighton hotel suite after a gala dinner at the U.K. Fingerprint Society's conference. Charlton was upset. Months earlier, Dror had designed a study to see if fingerprint examiners' decisions on matches might unconsciously be biased by information they received about a case.

Would examiners change their opinions about prints they'd called matches five years earlier, Dror wondered, if they viewed them again in a different context?

Charlton, supervisor of a U.K. police department's fingerprint lab, editor of the Fingerprint Society's journal Fingerprint Whorld and a true believer, was certain they would not. He urged Dror not to waste his time.

But Dror was insistent: "I said, 'Indulge me! Let's do it.'" And so, five international experts were put to the test covertly, re-examining matched prints from their own old cases while armed with different — and potentially biasing — "case information." They'd agreed to be tested, but they didn't know when — or even if — test prints would cross their desks.

That night in Brighton, the results were in. For Charlton, they were a jaw-dropper.

"Not only some, but most, of the fingerprint examiners changed their minds," said Dror, who was far less surprised by the flip-flopping. As an expert in human thought processes and the hidden power of cognitive bias — an array of distortions in the way humans perceive reality — he had a decided advantage.

Fingerprints have been accepted as unassailable evidence in courts for more than 100 years, but vaunted claims of their uniqueness and infallibility still lack scientific validation. By contrast, the existence of cognitive bias and the subjective nature of human judgment have been thoroughly established by hundreds of scientific studies going back decades.

What's more, the experiment was replicable with different fingerprint examiners using different fact scenarios:

In another study, [Dror's] team had six international experts each view eight latent prints that they'd each previously examined, but now they were accompanied with a new, mundane context — something like, "the suspect has confessed," or, "the suspect is in custody." More expert reversals followed. Four of the six reached different conclusions. One changed his mind three times.

Indeed, this isn't just a bias in experimental situations but occasionally in the real world:

in a landmark U.S. case, Stephan Cowans of Boston became the first person to be convicted on fingerprint evidence, then — after serving six years in prison for shooting a police officer — exonerated by DNA. Two prosecution experts and Cowans' two defense experts (formerly of the same fingerprint unit) had all verified the match. After his 2004 release, Cowans revealed his earlier certainty about fingerprints by saying that on the evidence presented in court, he would have voted to convict himself.

What can be done to reduce cognitive bias among fingerprint examiners and other forensic workers? Dror advocates removing forensics from the purview of law enforcement and severely limiting the amount of contextual information given to forensic workers about individual cases:

A key National Academy of Science report recommendation — to move crime labs out from under law enforcement's wing and create a new national institute of forensic sciences — would surely help impartiality. If lack of funding delays that, "so be it," Dror said. "But you can't have it both ways. If there's no reform, don't say, 'I am 100 percent objective, I make no mistakes, there is no problem.'"

In the interim, some steps can be taken. When further examiners are called on to verify the work of a first, they should always examine the evidence independently without knowing the earlier results.

Efficiency, scientific validity and objectivity could also be dramatically improved for a relatively small financial outlay by establishing and enforcing "best practices" in crime labs (another NAS report recommendation.) Best practices are formally documented standard operating procedures, processes and rules for how to do your work that are specifically designed to make it effective and efficient, and avoid error. Having best practices that all fingerprint examiners everywhere must adhere to would be a big step forward, Dror believes, but only if they are science-based and validated by experts in cognitive neuroscience, psychology and thought processes.

Today, guidelines are provided by Scientific Working Group on Friction Ridge Analysis, Study and Technology. However, these are only guidelines with no mechanism of enforcement. "What is more," Dror said, "none of the current guidelines really directly and adequately deals with confirmation bias and other cognitive issues." ...

He favors the immediate implementation of the practice of withholding all nonessential crime details from forensic scientists. Detectives, investigators, lawyers, judge and jury need to know if fingerprints are related to terrorism or bicycle theft, but for fingerprint examiners counting ridge characteristics, loops, whorls and other minutiae, such context is irrelevant.

"We're not going to send a fingerprint to Interpol if somebody stole a bike," Dror said. "But we need to make sure the fact that the examiner thinks it's a terrorist or the Madrid bomber doesn't cloud their judgment too much." To Dror, it's like his personal physician needing his medical history, while the lab technician counting his white blood cells for a blood test does not.

The issue of cognitive bias comes up again and again in discussions of forensic errors. While it seems like it should be the easiest problem to fix - managing who gets what information - the reaction to such suggestions from forensic workers tend to range from defensive to openly hostile, as this excellent Miller-McCune article demonstrates. In the wake of the National Academy of Sciences report, we're going to see a revamping in the near future of methodologies in many forensic fields, and removing sources of cognitive bias must surely be a key component of any such reforms.

New DPS Director

Will be Rick Perry's current Homeland Security chief Steve McCraw, reports the Statesman's Mike Ward.

Public Safety Commission plans to cancel contract with Driver Responsibility fee collections vendor

At a Texas Public Safety Commission meeting today, the vendor in charge of collections for the Orwellian-named "Driver Responsibility" surcharge faced a brutal reaction from commission members, who questioned the company's "ethics" and openly called for their contract to be terminated as soon as feasible. Department of Public Safety staff promised to prepare an agenda item to end the contract (which requires 90 days notice) at the next Commission meeting in August.

Chairman Allan Polunsky, in particular, was frustrated that a contract paying the vend0r $12 million per year over the last three years - up from $4 million the first full year it was issued - had been renewed recently for a five-year term without the PSC ever being notified or taking a formal vote. The vendor - an Austin-based company called MSB Government Services - takes 4% off the top from everything it collects, the company's President told the Commission. Polunsky stated in no uncertain terms that the process had been unacceptable and the contract should have - and would be - put out for bid.

Other commissioners and DPS' General Counsel were concerned with the company's use of DPS letterhead on its dunning letters, particularly those which are not form letters but are specifically tailored to individual cases.

Company officials had come prepared to suggest using more "assertive, collections-oriented verbiage" in letters and "daily" phone calls aimed at those who owe back surcharges. That development, if authorized, would make the use of DPS' name and letterhead even more problematic. Given that a whopping 6% of Texas drivers presently owe Driver Responsibility surcharges, that would put DPS' official imprimatur on some fairly harsh communications directed at a significant percentage of the public.

In the end, Commissioners cut off MSB's presentation in mid-stream and demanded that they (and DPS staff) return at their next meeting better prepared to answer their outstanding questions.

I attended to speak to the commission about the Driver Responsibility program 0during the public communications period to ensure that somebody had told the PSC face to face that they're required to implement an indigency program for the DRP sooner than later. I reminded them that the Driver Responsibility surcharge is tacked on in adddition to existing criminal penalties and was created explicitly as a revenue generation scheme - essentially a "tax by another name" - and that excessive civil fees can be as harmful to civic health as high taxes.

Staff discussions of the surcharge revealed some data I'd not seen before about the program. Since its inception DPS, has billed out $1,270,538,003 in surcharges but MSB has only been able to collect $468,774,222. There are four categories of offenses for which DPS collects the surcharge: "Points" accumulated on the driver license because of tickets, DWI convictions, no-insurance citations, and driving with a suspended license. Most fees are for lesser offenses, as demonstrated by this breakdown of the portion of fees assessed attributable to each category (compiled by the DPS Driver License division):

Points: 3%
DWI: 12%
No insurance: 57%
No driver license: 28%

The collections percentages also varied widely. Those whose surcharge is for "points" (the lowest surcharge fees) paid off their surcharge at a rate of 69%, compared to just 37% for DWI and 38% for those with no-insurance tickets.

Predictably, surcharges for offenders driving with a suspended license had the lowest collections rate (27%). That's because the penalty for not paying other types of surcharges includes suspension of your driver license, so many people in that category already owe surcharge fees they can't pay, which is why they were driving without a license in the first place. It's precisely that slippery slope that's most troubling to me about this fee because it creates a situation where surcharges snowball, harming public safety instead of improving it by making it more likely people will drive without a license or insurance.

The other piece of news coming out of these discussions (and I'll be providing readers' much more detail on this aspect of the story next week): I informed the Commission that they'd soon be receiving a formal petition for new rulemaking regarding the Driver Responsibility surcharge proposed on behalf of this blog.

This is something my wife Kathy Mitchell and I have been preparing as a little home-grown activist project. Under state law, agencies are required to give a petition for rulemaking a public hearing if it's accompanied by 25 signatures. The rules we plan to suggest would implement the Indigency, Amnesty and Incentive programs that were authorized by the Lege in 2007 but never actually established by the PSC.

More on this next week when we publicly release the formal petition for rulemaking and begin to solicit support and endorsements for the proposal.

Is budget crisis at Bexar probation real or an excuse to fire Bill Fitzgerald's enemies?

A story published yesterday in the San Antonio Express News announced that Bexar County's controversial probation director, Bill Fitzgerald, plans to fire nine employees ostensibly because of a reduction in their budget ("Bexar probation office eyes layoffs, furloughs," July 16):

Aimee Sharp, finance director of community supervision and corrections, said the department has seen a 28 percent drop in court fees since Bexar County courts-at-law judges restructured in May the way court fees are allocated.

The court fees that probationers pay now go first to the courts before any of the money is distributed to community supervision. If probationers don't pay the full amount of the court fees, community supervision may not get any of the allotment, according to Sharp.

She also said because judges are not inclined to require probationers to pay off probation fees at the completion of their program, community supervision is not receiving its share.

“We were really caught by surprise when this happened,” she said.

The probation department has been dipping into its fund balance — used for emergencies — to compensate for the loss of fees. In May, it had a fund balance of about $655,000, about 5 percent of its total budget.

The department receives half of its funding from the Texas Department of Criminal Justice, and court fees fund the remainder of the $13 million budget.

The state recently informed the Bexar County probation department that its state funding would decrease by 3.15 percent — or $170,762, which is the equivalent of four probation officers.

If the restructured fee collection continues, the department could expect a $700,000 decrease in its share of fees for an entire fiscal year, which runs from October to September.

The decrease was the unintended consequence of the judges' efforts to raise revenues and avoid layoffs in their courts, Fitzgerald said.

A couple of things strike me about this story. First, the decision by Bexar judges shows they're still utterly out of touch with what's going on at the probation department, worrying more about budgets for their own individual court staff more than providing supervision for convicted defendants they've allowed to stay in the community. That's a bad public safety decision. The judges serve as the board of the county probation department, but in Bexar the current crop of jurists has seldom behaved like people that understand they have a fiduciary responsibility toward the department, instead worrying only about their own feifdoms in each individual courtroom.

Also, I want to learn more about the assertion (which I'm not sure I believe) that "The state recently informed the Bexar County probation department that its state funding would decrease by 3.15 percent." All the data I'd seen from the recent legislative session said probation funding was increased overall statewide. According to the Texas Criminal Justice Coalition's budget analysis, during the 81st legislative session this spring:

• Approximately $11.1 million was allocated for projected community supervision population growth.
• $13.1 million was allocated for a 3.5% pay increase in FY 2010 and an additional 3.5% salary increase in FY 2011 for community supervision officers and direct care staff. A similar increase (about 3.5% in each year of the biennium) was also provided to correctional and parole officers. ...
• The "Community Supervision Officers and Direct Care Staff Salary Increases Rider" appropriates $13.1 million over FY 2010-2011 and specifies that “It is the intent of the legislature that community supervision officers and direct care staff receive a 3.5% salary increase in fiscal year 2010 and an additional 3.5% salary increase in fiscal year 2011.”

So with all those new resources allocated, how is it that the Bexar probation department is claiming their funds have been cut? Why haven't other departments seen their budgets cut, if that's the case? (Maybe they have - a lot of Grits readers work in the probation field so let me know if this is happening where you are.) Unless the Department of Criminal Justice is reducing Bexar's funds because they've flouted state diversion efforts - in which case the REAL story would be their gross failure to implement required diversion programs - the information being provided here doesn't sound correct to me.

A healthy dose of skepticism is required because of Bill Fitzgerald's well-earned reputation as a union-busting, retaliatory manager who's not above terminating or harassing employees who're whistleblowers or union sympathizers. Is there really a budget crisis at the Bexar probation department or is this just an excuse for Fitzgerald to get rid of more internal enemies? That's the unspoken question looming over this announcement, and it deserves an honest answer before any layoffs begin.

Jamming cell phones in prison debated at US Senate committee

A US Senate Committee yesterday heard testimony from Texas state Sen. John Whitmire, TDCJ Inspector General John Moriarty, and others regarding a proposed bill by Sen. Kay Bailey Hutchison that would change federal law to allow states to jam cell phones in prison.

Though Texas instituted a "zero tolerance" policy on cell phones last year after a death row inmate called Sen. Whitmire's office (leaving an open question what level of "tolerance" they operated under before), the senator told the committee that strategy cannot succeed, according to AP: "'Short of jamming and a complete shutting down of those phone signals, I don't think we can remedy the problem,' Whitmire told the Senate Committee on Commerce, Science and Transportation. 'It is a public safety problem.'"

Information Week provided good coverage from the hearing ("Senate mulls jamming cell phone signals in prison," July 15):

The proposed legislation seeks to have Congress revise a 1934 law that blocks the jamming of phone signals. The bill, which would permit jamming cell phone signals in prisons, has been sponsored by Senator Barbara Mikulski of Maryland, who noted that a prison inmate in Maryland used an illegally obtained cell phone to order the killing of a witness.

"Just more than two years ago, Carl Lackl, a young father of two in Maryland, was killed after an inmate used his cell phone to order a hit," Senator Mikulski said in a statement. "This is not an isolated incident and it must stop. All across the country, cell phones are being smuggled into prisons and being used by inmates to communicate with criminals on the outside."

The other side of the issue was presented in a letter to Commerce Committee members by several public interest organizations. According to Public Knowledge the letter maintained that there are ways better than jamming to deal with the illegal cell phones-in-prison problem.

"Jamming prison cell phones would jeopardize public safety because there is no way to jam only phones used by prisoners," said Public Knowledge's legal director Harold Feld in a statement. "All wireless communications could be shut down within a prison

"As spectrum experts have explained, jamming contraband cell phone signals without jamming authorized communications presents an extremely difficult engineering challenge. Cell phone signals use many bands, often proximate to or shared with public safety operations."

To alleviate the problem, Public Knowledge suggested that lowering the cost of legal calls in prisons -- currently costing as high as $300 for an inmate with family -- would help as would a stepped up effort to detect and stop the flow of unauthorized cell phones in prisons.

The flow of illegal mobile phone is eye-popping. California, for instance, confiscated more than 2,000 cellphones in 2008. Phones are sneaked into prisons by visitors and corrupt guards, or simply thrown over prison walls. In Brazil, where the problem has reached epidemic proportions, cell phones are delivered to prisoners by homing pigeons.

The part about the homing pigeons cracked me up. Prison smuggling often produces some surprisingly creative and resourceful schemes, when you pay attention to the details, but that one takes the cake! Guard corruption is still the principle culprit, though; TDCJ caught dozens of guards smuggling cell phones onto prison units after they instituted a lockdown last year.

Wireless companies also opposed the legislation, according to coverage in a Florida paper:

The cell phone lobby is fighting the prison officials. John Walls of CTIA - The Wireless Association (formerly known as the Cellular Telephone Industries Association) told the Chronicle that jamming technology "is imprecise. The problem with jamming technology is that's it's imprecise."

He added: "We're certainly not at odds on the intent. There's not one legitimate customer that we have behind bars, and shutting that off is as much of a concern to the industry as anybody else. … Where we think that perhaps we could do a better job ... is by looking at all the solutions available today and selecting the ones that protect legitimate use while still solving the problem, and that would be cell detection and managed access."

For more detail from critics of the idea, I've uploaded onto Google documents a copy of the letter to Sen. Hutchison from Public Knowledge and other interest groups critical of the jamming proposal.

MORE: Here's a little more detail about the bill from BroadbandConsensu.com that I hadn't seen published elsewhere: "While S. 251 does not call for an outright legalization of jamming technology, it allows for prisons to apply for a waiver from the ban and provides for Federal Communications Commission testing and certification of jamming technology."

See related Grits coverage:

• Hutchison seeks cell phone jamming authorization
  
• Texas prison cell phone scandal making national news
  
• Senate committee examines reasons for contraband smuggling
• FCC has no authority to approve cell phone jammers
• Chasing illegal cell phone use in TDCJ
• Cell phone trafficking in Texas prisons
• Guards and contraband smuggling in prisons and jails
• Texas prison guards smuggle cell phones to inmates
• Even death row not immune to contraband smuggling
• Has TDCJ learned the right lessons from death-row cell-phone scandal?
• Few prison guards fired, prosecuted for contraband smuggling
• New rules for TDCJ phone service approved

DPS wrong to delay indigency program for 'driver responsibility' surcharge

The General Counsel over at the Texas Department of Public Safety believes the agency isn't required to implement an "Indigency program" for the "Driver Responsibility" surcharge collected by the agency until September 1, 2011, according to their Public Information Officer Tela Mange. The Public Safety Commission meets tomorrow and Friday, when a discussion with the vendor is scheduled regarding low collection rates for the Driver Responsibility surcharge.

But according to a staffer working for state Rep. Sylvester Turner, whose amendment to the Sunset bill established the language in question, a separate section of the bill requires the agency to implement some sort if Indigency program by September 1 of this year, with more detailed specific requirements becoming mandatory in two years.

I'm certain this Grits post only contributed to the confusion, but after conversations with Mange and Turner's staff, I think I've cleared things up:

Rep. Turner amended the Sunset bill in two places, adding what became Sections 6 and 15 of the bill. Section 15 gives detailed specifications for an Indigency program, but that section of the bill specifically states it would not go into effect until Sept. 1, 2011. However, Section 6 of the bill takes effect September 1, 2009: That portion of the legislation changes a "may" to a "shall," requiring the agency implement some sort of indigency program this year. (See the full bill here - large pdf.)

As background, DPS originally was authorized in 2007 to create an Indgency program (along with "amnesty" and "incentive" programs) by SB 1723 authored by Sen. Steve Ogden in the 80th Texas Legislature. That bill said the agency "may" create such programs, but they never did so. As a result, this year Section 6 of the Sunset bill changed that to a "shall," effective September 1.

Turner's staffer said the delay in requiring Section 15 to be implemented was to give "flexibility" to the agency, but some version of an Indigency program must be in place when the Sunset bill takes effect. Thanks to SB 1723, the Public Safety Commission has full authority to implement the Section 15 requirements ASAP - they can delay, in other words, but nothing requires them to do so.

The Public Safety Commission has already put off creating an indigency program for too long, and for that matter they'd do well to create "amnesty" and "incentive" programs to help ameliorate the gaping flaws in Texas' surcharge scheme. This program is not working properly and the PSC should use its authority to fix the problem instead of putting off changes until they're absolutely forced to make them.

In any event, the law requires them to implement an Indigency program of some sort sooner than later.

UPDATE: In the comment section, Shannon Edmonds of the Texas District and County Attorneys Association helpfully informs us that, "While I don't claim it to be authoritative, I'll volunteer that our 2009 Legislative Update book (available for order by calling 512.474.2436 or attending one of our legislative update seminars) interprets HB 2730 the same way that you and Rep. Turner's office do."

RELATED:

• Department of "Public Safety" or "Collections"?
• Indigency program mandated for 'driver responsibility' fees?
• Senate would let judges reduce misnamed 'driver responsibility' fee
  
• 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

New report on prison nurseries

Via Corrections.com:

The Women’s Prison Association (WPA) has released the first-ever national report on prison nursery programs. The report examines the expansion of prison nursery programs across the U.S. These programs allow incarcerated women to keep their newborns with them in prison for a finite period of time. The report also looks at community-based residential parenting programs, which allow women to serve criminal justice sentences with their infants in a non-prison setting.

The report finds that the number of prison-based nursery programs is growing, but that such programs are still relatively rare. Though every state has seen a dramatic rise in its women’s prison population over the past three decades, only nine states have prison nursery programs in operation or under development. Of the nine prison nursery programs existing or in development, four were created within the last five years. ...

The report (pdf), Mothers, Infants and Imprisonment: A National Look at Prison Nurseries and Community–Based Alternatives, is available online at www.wpaonline.org.

Texas was not listed as one of the states with prison nurseries (which were California, Illinois, Indiana, Ohio, Nebraska, New York, South Dakota, Washington, and West Virginia). Does anybody know what happens here with incarcerated mothers and young babies? It's a question I've never thought to ask. Texas passed legislation this year limiting authority to shackle pregnant inmates during labor, but I don't know what happens with the babies after they're born.

MORE: A quick search of TDCJ's website on the topic revealed this story from the Galveston Daily News about the birthing center for pregnant mothers at TDCJ's Carole Young medical unit in Texas City:

The minimum-security unit has helped female offenders with medical needs since 1996. It serves both state jail and Texas Department of Criminal Justice offenders. The University of Texas Medical Branch at Galveston provides the medical care. ...

Between 80 and 100 of the patients at any time are pregnant; inmates assigned to the facility because of its obstetrical clinic typically make up the largest patient group.

After delivery, new mothers on the unit who have permission from the warden participate in the Love Me Tender baby-bonding program, in which they can see their babies not only during scheduled weekend visitation hours, but also for any two-hour period weekdays from 8 a.m. to 5 p.m.

The babies are not housed at the unit, but state Rep. Rick Noriega of Houston has filed a bill, HB 1770, which, if passed [ed note: it failed], would provide housing for infants up to 1-year-old.

After one year, Simpson noted, another Texas Department of Criminal Justice program allows extended visitation with children up to 16 years old, so inmates “roll from one program right into another.”

Though this tells me about where pregnant inmates give birth and visitation policies for infants and young mothers, it doesn't provide a clear picture of what exactly happens to young infants after they're born in Texas prisons. Perhaps readers have more information on the subject.

Melendez-Diaz not as scary as the Washington Post thinks

The Washington Post today published a "sky is falling" critique of the Supreme Court's decision in Melendez-Diaz that the Confrontation Clause in the Sixth Amendment requires an opportunity to cross-examine crime lab workers who prepare reports for trial. According to the Post ("Lab analyst decision complicates prosecutions, July 15):

"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

Scott Burns, executive director of the National District Attorneys Association, was a prosecutor in Utah for 16 years. "Sometimes it's the game within the game," he said. With less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system," Burns said.

In Prince George's County, lab analysts testify regularly, but the volume of cases is so great that "we still are not able to process all the drug cases," State's Attorney Glenn F. Ivey said. "There's a triage going on in court cases. Some marijuana cases don't get tested, and we end up throwing them out."

Then there are the big rural states, where crime labs are hours away from many county courthouses. "It'll have a huge impact," said Ladd Erickson, state's attorney in McLean County, N.D. "It's not volume as much as it is distance. For some counties, round trip is going to be 10 to 12 hours to testify" for the lab analyst to travel to court.

Burns said 42 states and the District are affected by the Supreme Court case, Melendez-Diaz v. Massachusetts.

From my perspective, though, such concerns seem quite overblown. Given that Texas law adequately complies with the new SCOTUS ruling and we lock up more people per capita than the rest of the country, I just don't buy the argument that the criminal justice system can't function under these restrictions. We also have the problem identified of rural areas needing to use crime labs hudreds of miles away, but Texas hasn't had any trouble filling up our prisons under such strictures.

Texas law (CCP 38.41), which Antonin Scalia approved of specifically in the majority opinion, already requires "notice and demand" regarding testimony by lab workers, where prosecutors must give notice that they intend to use lab evidence and the defense has an opportunity to demand cross-examination if they give ten days' notice. Poof! Problem solved!

So what's the big deal? While there may be some cases dismissed in transition as states change their laws to accomodate the court's opinion, Texas' example shows that it's possible to comply with confrontation requirements in a high-volume, big-state system.

I also don't find it compelling that the criminal justice system may be forced to prioritize cases in order to shepherd scarce resources, which is a fundamental dilemma confronting everyone who must live within a budget. If because of Melendez-Diaz, "Some marijuana cases don't get tested, and we end up throwing them out," would anyone out there really shed a tear?

A much more intriguing set of arguments about Meldendez-Diaz and its effect on federal immigration law can be found on the Fifth Circuit Blog authored by Brad Brogan, who argues persuasively that "the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases."

According to Brogan's reading, Melendez-Diaz eviscerated the Fifth Circuit's ruling in Rueda-Rivera, declaring after poring over the details that "There is simply no room left to argue that CNRs are not testimonial after Melendez-Diaz. The CNR's are ex parte affidavits prepared solely for use at trial, and "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." That's an implication of the case I hadn't heard mentioned previously, but Brogan's right that Scalia's opinion speaks directly to the matter:

Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer in the regular course of his official duties—and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation [under common law].

It'll be interesting to watch these confrontation issues play out in that unlikely venue.

The other major implication for Texas I'd already mentioned here: Melendez-Diaz likely overturns the Texas Court of Criminal Appeals' position that "parole revocation certificates" are "business records," since they are documents specifically prepared for use in court. In this instance, too, I don't see requiring confrontation as a major concern, though next session the Lege may need to enact "notice and demand" provisions similar to those in place for crime lab workers to allow confrontation in parole revocation hearings.

See related Grits posts:

• Will Melendez-Diaz compel confrontation for parole revocation certificates?
  
• Real splits on criminal justice not liberal-conservative
• SCOTUS: Forensic reports require cross-examination of analysts
• Pragmatism vs. Confrontation frames SCOTUS' lab report debate
  
• Scotus to hear debate on whether lab reports are objective or testimonial
• Pending SCOTUS case could moot proposal to admit DWI breath tests without cross examination
• Are crime lab reports 'testimonial' documents? SCOTUS will decide

TCJC issues legislative wrapup

The Texas Criminal Justice Coalition has published its summer newsletter (pdf) including a wrap-up detailing criminal justice bills from the 81st Texas Legislature and a description of TCJC's work plans for the interim. Supplementing the newsletter, on its website TCJC has posted these issue-by-issue updates from the 81st session:

• Protect Youth and Communities by Improving Juvenile Justice
• Rebuild Confidence in the Criminal Justice System & Ensure Innocent Individuals Are Not Sent to Prison
• Save Money by Providing Alternatives to Incarceration & Increase Public Safety Through Policy Reform
• Strengthen Criminal Justice Practices
• Encourage Economic and Workforce Development by Reducing Re-Entry Barriers
• Appropriations
• Special Mention: Honoring Individuals Who Pursued Smart-On-Crime Policies

Jefferson recalls liberation of Bastille prisoners

Today France celebrates the 220th anniversary of the storming of the Bastille, perhaps the only national holiday I'm aware of in any country celebrating a prison break. (Really, the mob was after gunpowder stored in the garrison and releasing the prisoners was an afterthought, but that's the popular portrayal.) As Thomas Jefferson described the spectacle in a letter to John Jay:

The mob, now openly joined by the French guards, force the prisons of St. Larare, release all the prisoners, and take a great store of corn, which they carry to the corn market. Here they get some arms, & the French guards begin to to form & train them. ...

“[At the Bastille] They took all the arms, discharged the prisoners & such of the garrison as were not killed in the first moment of fury, carried the Governor & Lieutenant governor to the Greve (the place of public execution) cut off their heads, & sent them through the city in triumph to the Palais royal.”

As Jefferson himself wrote after recounting the episode, Vive la revolucion! For more background see novelist Catherine Delors' blog post from last year's Bastille Day titled, "The 14th of July 1789: What really happened on Bastille Day?"

Texas praised for prison pop reduction efforts

Texas' efforts to reduce prison population growth through drug diversion programs and probation reforms were highlighted in a Washington Post feature yesterday titled, "States seek less costly substitutes for prison" (July 13). According to reporter Keith Richburg:

what is striking, experts say, is how some states with reputations for being tough on crime are most rapidly embracing these policies, which might have once been dismissed as the product of liberal think tanks and soft-on-crime leniency.

Texas is a case in point. From 1978 to 2004, the inmate population rose 573 percent and the state's population increased 67 percent. [Ed. note: I wonder where that data came from?] With hard sentencing laws and some conservative judges, Texas built a "lock 'em up" reputation. The state has more than 155,00 inmates and leads the nation in putting prisoners to death.

But two years ago, Texas officials were faced with an alarming projection: By 2012, the state would need 17,000 more beds, which would mean building eight prisons at a cost of nearly $1 billion.

State Rep. Jerry Madden, a self-described conservative Republican, had just taken over as chairman of the Texas House committee on corrections. "I started asking questions," he said in a phone interview. To avoid building more beds for more prisoners, Madden said, "You either got to slow 'em going in, or speed 'em going out. And Texas is not a state that says, 'Speed 'em up going out.' "

Madden said he pulled together experts from conservative and liberal think tanks. "When it came to prison ideas that work, they all agreed," he said.

The changes, implemented in the 2007 legislative session, included more funding for drug and DWI courts. New rules shortened the average probation time from 10 years to five. With about 445,000 people on probation, the system had become "the Number One feeder to the prison system," said Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, a progressive group.

The state also ordered the parole board to raise its parole rate to an earlier number of 31 percent; the proportion of eligible inmates granted parole had slipped to 26 percent.

With those changes in place, prison population growth slowed to a trickle. From January 2007 until December 2008, Texas added 529 inmates to its total, a tenth of what was projected.

C. West Huddleston, chief executive of the Alexandria-based National Association of Drug Court Professionals, said Texas may have been in a better position than other states to make such dramatic changes because its prison growth was so much worse.

"Texas is a remarkable example of how to take control of an explosive prison population," he said. "If Texas can do it, any state can do it."

Via Doc Berman.

Hutchison seeks cell phone jamming authorization

The US Senate Committee on Commerce, Science, and Transportation this week is taking up a bill by Sen. Kay Bailey Hutchison to allow cell phone jamming in state prisons, according to a press release received via email from state Sen. John Whitmire's office:

At the request of U.S. Senator Kay Bailey Hutchison, State Senator John Whitmire (D-Houston) will be in Washington, D.C. this week to express his support of Senator Hutchison's legislation allowing the jamming of cell phone signals within prison facilities.

In October, 2008, Senator Whitmire received numerous calls from a Texas death row inmate. The inmate had access to a cell phone which was shared with other inmates and used to make over 2,800 calls in less than a month. The following investigation resulted in a statewide prison lock-down, the discovery of hundreds of cell phones, and the indictment of the inmate and his mother and sister who helped provide the phone.

"Unfortunately, it took a death row inmate calling a State Senator to bring the issue to light and to force the prison system in Texas to recognize and begin to address the problem of contraband in our prisons," stated Senator Whitmire.

Senator Whitmire is scheduled to appear at 10:00 a.m., Wednesday, July 15th before the U.S. Senate Committee on Commerce, Science, and Transportation chaired by Senator Rockefeller. Also invited to testify are Steve Largent, head of the CTIA Wireless Association; Gary Maynard, Secretary of the Maryland Department of Public Safety and Correctional Services; and John Moriarty, Inspector General of the Texas Department of Criminal Justice.

MORE: See a blog post critical of the cell phone jamming bill, and also a letter to Senators Hutchison and Rockefeller opposing the bill from the public interest group Public Knowledge. PK makes the argument that public safety responders could be affected, and also suggests jamming signals in prison may lead to a slippery slope: "The introduction of legal cell phone jamming places this entire system at risk. History has shown that permitting the legal manufacture and sale of devices even for limited purposes will inevitably result in their becoming available on a mass consumer basis. For example, the use of wireless microphones in the broadcast bands is limited by FCC rule to a small number of licensed users and – in theory – strictly controlled to avoid possible interference with television viewing and other uses of the band."

AND MORE: See coverage from the Houston Chronicle.

Odds and Ends

While I'm distracted today by a family tragedy piled on top of other scheduled duties, I wanted to point out a few recent news stories that deserve Grits readers' attention which might merit further commentary if I had more time or ability to focus:

Harris County Jail commentary
The Harris County Sheriff has a column in the Houston Chronicle today that's filled with catch phrases and feel-good commentary, but for the life of me I can't tell what position Sheriff Adrian Garcia is trying to take. The piece is full of odd statements like, "Programs to release inmates early must provide for the ability to monitor them to the end of their sentences," even though the Harris Jail's overcrowding problem stems primarily from pretrial detention, not sentenced offenders. He also failed to suggest solutions to increased jail overcrowding caused by expanded immigration detention.

Scarce little of what Garcia had to say suggested solutions for the main causes of overcrowding at the Harris Jail - too many inmates awaiting trial and too few guards to watch them. A recent Forbes magazine article on "America's Jail Crisis" points out that, "A stunning 25% of Harris County's annual $1.5 billion budget goes to law enforcement, with more than $750,000 a day spent on detainees. A shortage of guards means the jail shells out $35 million a year on overtime; some guards are topping out at $100,000 a year in total pay." Garcia called for seeking a "new consensus" on pretrial detention for nonviolent offenders, but his suggestions to solve the problem via "monitoring technology for ankle bracelets" would require substantial increased staffing the Sheriff doesn't have.

GOP won't go after Craig Watkins
Reporting on a conversation with the Dallas County GOP party chair, Dallas News columnist Gromer Jeffers says that "unless Ronald Reagan rises from the grave, Republicans won't recruit a candidate to run against District Attorney Craig Watkins ."

Webcams a waste on Mexican border
Governor Perry's much-ballyhooed webcam project on the Texas border has been a colossal flop, reported the El Paso Times:

In its first full year, the camera Web site drew more than 39 million hits and caught the attention of national and international media.

But interviews and reports the El Paso Times obtained indicate the nearly 125,000 "virtual Texas deputies" registered on the site led law enforcement to just eight drug busts and 11 arrests.

Feds fund reentry project for returning TYC youth in San Antonio
According to the San Antonio Business Journal:

The U.S. Department of Labor has awarded a $2.9 million grant to the Texas Youth Commission on a new initiative that will provide support services to 450 youth returning home from correctional facilities.

The new program will create what organizers are calling a “one-stop shop” for juvenile offenders, who will receive job counseling, education support, life-skills classes, mentors and community service opportunities.

The Texas Youth Commission is joining the Bexar County Juvenile Probation Department, the Texas Juvenile Probation Commission and San Antonio-based BCFS on this partnership. The grant will establish the program for 18 months with an opportunity to renew. BCFS will hire 31 new staff to work closely with the youth and oversee the curriculum.

These services will be offered at a downtown Youth Transition Center operated by BCFS. The center will house all transitional services including, employment strategies, case management, classes to help students earn their high school diploma or GED as well as training courses on non-violent methods for conflict resolution.

How accurate is visual memory?
CBS' 60 Minutes updated a story from March on the question of "How accurate is visual memory?" Those who make it all the way through the lengthy piece will be rewarded with excellent accounts of experiments by leading national experts exposing flaws with traditional police lineup procedures.

Improving forensic science
Peter Neufeld of the national Innocence Project argues in the Tennessean that a national forensic science institute is needed that would "stimulate research, develop best practices and set national standards for forensic work; help secure funding for forensic science programs; and provide guidance on how forensic test results should be conveyed to police, prosecutors, judges and juries."

Prisoners training psych service dogs
Prison programs have trained dogs for the blind and disabled, but according to the Wall Street Journal, now some military vets are benefiting from prison-trained "so-called psychiatric-service dog[s], a new generation of animals trained to help people whose suffering is not physical, but emotional."

Scent lineups by dogs don't pass the smell test

In the wake of a report this spring by the National Academy of Sciences, more scrutiny than ever has been focused on untested and unproven forensic techniques. In that vein, yesterday, the Victoria Advocate ran a terrific story by reporter Leslie Wilber ("Does it pass the smell test," July 12) about the use of "scent lineups," a highly dubious forensic technique which, in Texas, is performed by just one man - Fort Bend Sheriff's Deputy Keith Pikett and his three bloodhounds. Wilber examines the technique closely and finds that it doesn't even enjoy national acceptance among police dog handlers:

The National Police Bloodhound Association quit endorsing the technique years ago, calling scent lineups unreliable.

"We don't even want to take a chance on that," said Doug Lowry, the group's president and a chief instructor.

Kevin Kocher, president of the National Bloodhound Training Institute, said he doesn't run lineups and finds them hard to defend.

Critics list several potential weaknesses of scent identification:

Handler or observer influence. Dogs are eager to please and can pick up subtle cues, especially if lineups are conducted on leash, said Steven Nicely, a police-dog handler-turned-defense witness. Handlers can read observers and unintentionally relay that information to the dogs.

"They learn about the pressure on the leash and the way you stand," Nicely said.

Sample contamination. Lineups typically include a suspect's scent and scents from five other people. The samples should all be fresh and about the same age because scent fades over time.

The pads should be handled carefully, to avoid contamination, and lineups should be conducted in clean rooms, without distracting smells. Human scent is best stored in glass jars at room temperature and out of direct light, Fulton said.

Handler reliability. Dogs can't talk, so handlers are their voice in the courtroom. Affidavits should be precise. Records should be detailed, showing errors and successes.

"As a dog handler, you'd better be acting as a scientist," Nicely said. "Otherwise, you're acting on myth and folklore."

And in what forensic lab does Pikett perform his procedures? He still "performs scent lineups daily in the parking lot of Pilgrim Journey Baptist Church in Rosenberg." Definitely no risk of evidence contamination in a church parking lot, huh?

One academic claimed that "The best-run scent lineups can provide results as accurate as witness identification lineups," but given how unreliable eyewitness identification can be, perhaps that's damning with faint praise.

Civil litigation in Victoria may soon subject scent lineups to much greater scrutiny than Texas criminal courts have ever afforded the technique. For example:

In one motion, [attorney Rex] Easley wrote Pikett's lineup was "so recklessly flawed that it violated the constitutional rights of the plaintiff. First, the dogs were leashed during the lineup, which fails to exclude handler input. Second, the site, the pads and the cans were contaminated with countless other scents so as to render it unreliable and impermissible to base a warrant upon."

Easley hired Bob Coote, who led a police-dog force in the United Kingdom and worked with scent dogs guarding the British border, to review Pikett's work in Buchanek's case. The lineup was "the most primitive evidential police procedure I have ever witnessed. If it was not for the fact that this is a serious matter, I could have been watching a comedy," Coote wrote.

Jeff Blackburn, chief counsel for the Innocence Project of Texas (and for a couple of more weeks, my boss), summed up my own view of Pikett's scent evidence with this pithy one-liner: "This is junk science. This isn't even science. This is just junk."

Pikett claims to have used his dogs in more than 2,000 criminal cases, which makes me wonder how many more false convictions are out there based on this type of unreliable pseudo-evidence?

MORE: See another excellent Victoria Advocate article giving lots more background on Pikett's career and techniques as a dog handler, which began as a hobby undertaken with his wife while he was a high-school teacher. Leslie Wilber is providing top-flight coverage on this story for a small-town paper.

See prior Grits coverage:

• A 'scent lineup'? Rover in the witness box
• DNA exoneration indicts Rover in the witness box
• 'Scent lineups stink to critics'
• 3 false convictions relied on dog-based scent lineups in Florida
  

Unlikely Voices: Families of sex offender registrants organizing

I was pleased yesterday to get to spend a little time with Mary Sue Molnar and the folks at Texas Voices (a group made up of families of registered sex offenders) at their statewide conference here in Austin. By the time I showed up in the late morning there were perhaps 60-70 folks there; I walked in just in time to hear most of their legislative update.

They were, of course, all devastated at Governor Perry's veto of legislation to allow defendants to petition judges in Romeo and Juliet cases to be taken off the registry. But this was the first legislative session they'd even been involved as a newly formed group and that same bill could probably pass again whenever it's somebody else's turn to be Governor. In the meantime, about 100 new people per month are being placed on Texas' sex offender registry, Molnar reported to the group.

I enjoyed meeting quite a few readers and appreciated the invitation.

For a variety of reasons, despite the fact that they theoretically represent a lot of folks, inmate family groups have enjoyed notoriously little success pushing their interests at the Texas state capitol, much less families of sex offenders. But Texas sex offender registration laws are now so over the top - to the point where a registered sex offender can't legally drive across town for fear of passing a school or community center and violating parole - that I sense a growing bipartisan consensus at the Legislature that this is an area ripe for reform.

Though being tuff on sex offenders is all the rage among politicians at election time, a lot of folks around the Texas capitol from both parties will agree with you in private that the registry fails to adequately distinguish between dangerous rapists and pedophiles and people who committed less serious offenses. Indeed, this year's vetoed legislation to allow judges to approve de-registration in Romeo and Juliet cases was filed by Republican Todd Smith, an indication that concerns about overreach in this area don't necessarily fall along party lines.

The group at Texas Voices have a tough row to hoe, and for the family members it's not one they've chosen. I'm glad to see them getting organized. Nobody else is going to fight these battles for them and the issue deserves more focused advocacy than its heretofore received.

Rapid cleanup best graffiti antidote

I wanted to point readers to several interesting, recent news stories related to graffiti, particularly regarding the issue of rapid cleanup, which I've long believed is the single most effective strategy a city can undertake to combat graffiti:

Rapid cleanup best graffiti antidote
Here's an interesting little profile of a code enforcement employee in Chandler, AZ, a Phoenix suburb, whose full-time job is cleaning up graffiti, which he is usually able to remove within 24 hours of a new report. The stats jumped out at me: In 2008, this one man erased graffiti at 1,847 different spots. Do you think Chandler police made even 1% as many arrests? Probably less. Harsh penalties may make grant the public a cathartic moment of gloating satisfaction when punishing the small handful of taggers who are caught, but rapid cleanup actually provides redress to victims of vandalism and is a greater deterrent to graffiti than a one in a thousand chance at being arrested.

There's an app for that
Boston has proposed a cool idea, allowing citizens to report graffiti and potholes directly from their iPhone. From the Christian Science Monitor:

Soon the City of Boston will adopt the first iPhone app in the nation that will allow residents to voice municipal complaints and concerns via iPhone. Rather than calling a 24-hour hotline, Bostonians will be able to snap photos of potholes or graffiti in their neighborhood and send it directly to Boston’s City Hall. The app, Citizen Connect, which was dreamed up by mayoral aid Nigel Jacob, will use the iPhone’s global positioning system function (GPS) to identify a citizen’s exact location when they submit a complaint. It can be downloaded for free once it’s released in the iTunes App Store, and will also provide users with a tracking number so they can keep tabs on their complaint’s status.

NYC would shift graffiti cleanup burden to city
New York City has done a tremendous job with graffiti reduction compared to, say, Los Angeles, even though, for some reason, L.A.'s draconian git-tuff tactics have been more popular with anti-graffiti agitators in the flyover states. New York's main focus has been rapid cleanup and this report lets us knonw about a new proposal to streamline how quickly graff can be removed from private property. According to AP, "The new legislation would give the city authority to remove graffiti unless a property owner says otherwise. Officials say the change allows property owners to keep graffiti they consider artwork, and speeds up the removal of vandalism."

Their graffiti problem in NYC is a little bigger than in Chandler, AZ: "So far in 2009, Bloomberg's graffiti removal team has cleaned an estimated 2.5 million square feet of space at nearly 4,000 sites. Other city agencies have also cleaned graffiti, for a total of 6 million square feet removed to date in 2009."

Arrest him before he inspires again
Unrelated to the rapid cleanup theme, but I thought this was an ironic example of prosecuting someone purely because of their celebrity. Reports Reuters:

Shepard Fairey, a Los Angeles artist whose "Hope" image of Obama hangs in the National Portrait Gallery in Washington, was arrested in February while traveling to Boston's Institute of Contemporary Art to kickoff his first solo exhibition. ...

Fairey pleaded guilty to one count of defacing property for placing a poster on an electrical box in 2000 and to two counts of destruction of property in 2009 for placing a sticker on a traffic sign and affixing a poster to a condominium.

It's one thing to pursue Fairey for recent acts of vandalism, but a graffiti charge for "placing a poster on an electrical box in 2000"? How is it remotely possible the statute of limitations hasn't long ago run out on that offense? And is there any reason to prosecute him for it besides pure spite? The ironic part is that Boston officials hope to punish Fairey, but there's little doubt the more significiant function of this spectacle will be to garner Fairey more publicity and boost his art career.

Who do you think has done more to reduce graffiti? The lone guy in a pickup in Chandler or all the cops, jailers, prosecutors, clerks, bailiffs, the judge, etc., in Boston whose taxpayer-funded time was spent processing Shepard Fairey through the justice system? Which tactic reduced graffiti more and gave taxpayers more bang for the buck?

Geo Group secretly snagged forensic psych hospital contract in budget conference committee

Amazing! Emily Ramshaw at the Dallas News reports that legislators inserted a provision into the state budget in conference committee to pay for a privately-run psych prison in Montgomery County to be run by the Geo Group, even though no state agency requested it and the idea didn't make it through the budget process in either chamber. According to Ramshaw ("Troubled prison firm's deal for new psychiatric hospital raises questions," July 11):

Lawmakers inserted an earmark into the state budget to fund the future Montgomery County facility starting in 2011. But they said they didn't know until this week that the county had selected the GEO Group to operate it, although GEO lobbyists were pushing for it as early as February.

The new facility came as a post-session shock to mental health advocates, who acknowledge the need for it. But they say they weren't informed about it and never would have signed off if they knew Florida-based GEO was operating it.

This is a complete surprise to me, and I'm sure to many others who watched Texas' legislative process closely. That said, I've been calling for years on this blog for the state to invest more money in competency restoration so mentally ill inmates don't sit around for months in the jail waiting for state hospital beds to open up. But the Department of State Health Services had chosen to address that problem by funding and promoting outpatient competency restoration, not building more inpatient beds, and they didn't ask for this facility. Again from Ramshaw:

state lawmakers say the psychiatric facility, which by 2011 is expected to house more than 100 criminal offenders awaiting trials or competency findings, will solve a major backlog. The Montgomery County jail has hundreds of inmates awaiting mental health treatment. The nearest state forensic mental hospital is more than 100 miles away, and when a bed opens up, it takes at least two deputies to take an offender there.

"It's a problem we sorely need to address, instead of leaving people who need mental health care in prison," said Sen. Bob Deuell, R-Greenville, one of the Senate's budget writers.

But the budgeting process and the choice of contractor have raised some eyebrows.

Department of State Health Services officials, who oversee psychiatric care in Texas, say the Montgomery County facility was not something they requested funding for in the budget. It was added to the budget in conference committee.

Mental health advocates, who track psychiatric hospital legislation closely, say they never heard any public discussion about it.

Me either! Much of Ramshaw's story details unfortunate incidents in the Geo Group's recent Texas past, several of which are listed in this sidebar accompanying the story, and it's true there's a long list of problems.

Particularly worrisome, in some instances Geo allegedly hasn't provided all the services its contracted for, which would be especially troublesome in a mental health environment. According to a DOJ report last year, in general "private prisons appear to do a poorer job at providing meaningful programming for prisoners than state run facilities."

Equally concerning, guards at Geo units are less well trained than at TDCJ. According to the company's 10-K, Geo guards receive just 160 hours of training before being assigned to a facility compared to 300 hours for state prison guards. That makes me wonder whether COs at the Montgomery County mental health facility would receive adequate training for what's sure to be an exceptionally challenging gig.

Interestingly, legislators all over the state this week are being asked questions about the Geo Group for which they find themselves lacking good answers. In South Texas, Geo was accused in court this week of misleading shareholders about whether it was "exonerated" for an ugly 2001 murder of an inmate for which the company lost a major civil suit. Geo's counsel in the case is the law partner of a Texas state legislator, according to the Brownsville Herald ("Sanctions against the Geo Group sought," July 6):

The family of the late Gregorio de la Rosa Jr., killed by two inmates in 2001 in a jail facility then-operated and managed by Wackenhut in Raymondville under contract with the state, is seeking the sanctions from the Thirteenth Court of Appeals.

The family claims in court records that GEO "continues its disgusting display of disrespect for Texas' civil justice system," by lying to the government, investors and the business community in an April 30 report filed with the U.S. Securities and Exchange Commission (SEC).

State Rep. Rene O. Oliveira's firm, Roerig, Oliveira & Fisher LLP of Brownsville and McAllen, represents The GEO Group.

Asked if the prison group lied and to comment about the claims, Oliveira, D-Brownsville, said, "I'm not qualified to answer that question. I have never done one minute of legal work for them."

"I am not even familiar with the case. It is being handled by my partner, David Oliveira; nor am I familiar with the allegations. ... David Oliveira was not available for comment.

Geo is clearly a well-connected company - getting your project inserted into the conference committee on the budget when neither chamber nor the contracting state agency wanted it is no mean feat, and it's not everybody who finds a state legislator dodging questions about your company's alleged misconduct in the newspaper.

At least the Montgomery County facility won't open immediately and there may still be time for belatedly vetting the proposal before the system actually comes online.

UPDATE: A commenter points out that Montgomery County commissioners last year made a conscious decision to substantially overbuild their jail beyond current needs on the assumption that the facility, to be run by the Geo Group, would make enough profit from immigration detention to "spare taxpayers additional costs." One supposes that immigration detention is no longer paying the bills if the county and Geo are seeking to use the Montgomery County Jail for competency restoration beds! I wonder if that's the facility they're talking about?

See other Grits posts related to the Geo Group:

• Massive judgment upheld against private prison over inmate murder
  
• Pecos prison dreams up in smoke
• Whistleblower alleges document fraud at Geo-run federal prison
• Revolving door at TDCJ: Give a contract, get a cushy job
• Geo lobby pressure inspires hearing on private prisons; what should they discuss?
  
• Idaho inmates housed in squalid conditions in Texas at Geo facility
• Scandals involving Idaho inmates in Texas Geo prisons
• Suicide aftermath reveals squalor at private rural Texas prison
• Mother of deceased inmate sues over Texas Geo unit conditions
• Rosy financial outlook for Geo, or will debt and scandals be its undoing?
  
• Meet the Geo Group: Texas' largest private prison contractor

'Legislative report says Perry can issue posthumous pardons'

The title of this post is also the headline of a Fort Worth Star-Telegram story in which we learn that the Texas Legislative Council thinks Governor Perry has authority to issue a posthumous pardon to Timothy Cole, who died in prison before DNA testing could finally exonerate him last year, without passing a constitutional amendment. Reported the Startlegram:

A new state legislative review says Gov. Rick Perry has the power to issue posthumous pardons — and should issue one in the case of Fort Worth’s Tim Cole.

This year, a state judge exonerated Cole, who died in prison in 1999, of raping a Texas Tech student. DNA tests cleared him of the crime, and his family wants the governor to formally pardon him.

State Sen. Rodney Ellis, D-Houston, said Wednesday that a new report from the Texas Legislative Council shows that the governor has power to issue that posthumous pardon.

Perry, who has supported the family’s effort to get a pardon, has maintained that an old state attorney general’s ruling dictates that he must first have authority from Texans — through a constitutional amendment — to sign off on such a document.

My take on this is simple. Lege Council has given Governor Perry plenty of cover to say it's legal to issue Tim Cole a posthumous pardon and go ahead and do so.

The very worst that could happen is that, if somebody sued (and in this case, no one with standing has threatened to sue or has any reason to do so) sometime down the line, perhaps years from now when he's not even in office, the courts could later say "no." If all that happens and some future court disagrees with the Lege Council's interpretation, so be it. By that time the full Legislature will meet again and they can pass a constitutional amendment all nice and formal like.

It's the right thing to do, it will give the family solace, and it will show that Texas cares about the reputation of the innocent people it has exonerated.

Governor Perry, Pardon Timothy Cole!

Oversight: Why so little MSM coverage after Texas abolished LWOP for juveniles?

Doug Berman at the Sentencing Law & Policy blog made an observation on Wednesday which hadn't occurred to me about the surprising lack of media coverage that resulted after Texas abolished "life without parole" for juveniles convicted of capital murder. (The bill was SB 839 by Hinojosa/McReynolds, signed into law by Gov. Perry on June 19.) Berman writes:

In addition to being quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers, I was troubled that I had completely missed this interesting and important story about a change to Texas justice.

I then spent some time this morning looking for press reports about this new legislation and/or materials about this notable Texas reform from various public policy groups that focus on juvenile justice issues. Disappointingly and aggravatingly, I could not find ANY significant media coverage or materials from public policy groups about this reform to Texas justice. (Grits had a few helpful posts on bill here and here and here, but these posts only confirmed my sense that this Texas story deserves a lot more attention.)

The troublesome silence about the Texas reform is especially notable because many folks are now focused on juve LWOP issues because of the Supreme Court's decision to consider the constitutionality of two non-murder) juve LWOP cases from Florida. And, as death penalty fans know, state legislative developments are central to the Supreme Court's modern Eighth Amendment jurisprudence. I sure hope that folks writing briefs in the SCOTUS cases of Graham and Sullivan are aware of this recent important reform in Texas justice even though it has been overlooked and ignored by the media and public policy groups.

I responded in the comments to add more background about the bill's passage, so check SL&P's post for more details. (I also gloated a bit that even if the MSM hadn't covered it, "Grits readers knew about it.")

Doug's right, though, that there appears to have been little or no MSM coverage of this bill, even though, as I wrote here, it probably had "the most significant national implications" of all Texas' criminal justice reform legislation passed this session. (If you've seen coverage I'm unaware of, please provide the URL via email or the comments.)

Even among advocacy groups, like Doug I could find hardly anything published about SB 839 on the web except this written testimony (pdf) from the Texas Criminal Justice Coalition. At the committee hearings in both chambers, representatives from TCJC, ACLU and the Texas Criminal Defense Lawyers Association were the only speakers in favor. It seems like now that the death penalty has been off the table a few years for juveniles, all those who might normally show up to engage in "culture war" tinged shouting matches didn't bother anymore, one way or another.

IMO, the bill passed for two reasons: The legislative skill of its sponsors and a split among those who would typically be its strongest opponents. The Harris County DA's lobbyist spoke in opposition to SB 839 on the Senate side, but they backed off the bill in the House after Williamson County DA John Bradley endorsed Hinojosa's proposal. As I wrote in SL&P's comments, "the lack of strong DA opposition combined with unlikely support from a typically-tuff DA was what made the bill sail through. That seemed to be the interest group whose support was most critical for passage."

Once John Bradley gave legislators cover from their "tuff on crime" flank, they were free politically to vote their conscience and the vast majority didn't think LWOP for juveniles was the right thing to do. That wouldn't have been enough if there'd been anyone actively opposing the bill, but without any formal opposition, SB 839 never became the flashpoint of confrontation one might have expected. (The bill passed unanimously in the Senate and 101-37 in the House.) SB 839 also enjoyed just a bit of luck, since many other Senate bills died in the House when it melted down at the end of session over voter ID.

That explains why (I think) SB 839 passed, but it doesn't explain why the mainstream media hasn't covered the story with more vigor. Maybe it's because there was no conflict. Or perhaps the reason, simply, is the overall decline in the number of reporters covering the capitol. There are only about half as many as there were a couple of decades ago, many of those are part-tme, and a lot of stuff just doesn't get covered. Perhaps readers have other theories. With the Supreme Court poised to issue a national decision on the constitutionality of juvie LWOP, the story has implications that reverberate well beyond Texas' borders.

In any event, don't forget: You read it here first.

SA jail shrink: Free-world services for mentally ill a must

The San Antonio Express-News ran a lengthy and informative profile this week of Dr. Sally Taylor, head of psychiatric services at the Bexar County Jail ("Doc puts inmates mental health first," July 5). In particular the reporter (whose name I could only guess at pronouncing) highlights Taylor's role in passing new legislation to allow jails to force mentally ill patients to take their psych meds. The article opens:

It's become a given among mental health professionals that jails are now the largest psychiatric hospitals in the country. In Bexar County, as in others around the nation, roughly one out of four inmates suffers from some kind of mental illness.

That translates into some 800 inmates at the county jail being treated for a psychiatric disorder — hundreds more than patients being cared for at the San Antonio State Hospital.

Dr. Sally Taylor, administrator of psychiatric services at Bexar County Jail, has been on the front lines of the struggle to treat and rehabilitate mentally ill prisoners. ...

By all accounts, Taylor has been a tireless advocate for the mentally ill in San Antonio, working with local advocacy groups to reduce stigma about mental illness, encourage churches to address mental disorders and promote education and community awareness about mental disease.

Recently, she worked with other mental health groups on legislation to compel mentally ill prisoners to take their medication.

This is important for those who have been found incompetent to stand trail and are in jail awaiting transfer to an inpatient competency restoration program.

This will allow treatment for those with severe mental illness who are a danger to self or others or who lack the capacity to understand the risk of refusing treatment, and who have been excluded from court ordered treatment simply because they are located in jail.

It might even help some inmates enough that they could enter outpatient competency restoration.

The bill was signed into law by Gov. Rick Perry.

Taylor bottom-lines the problem of mentally ill offenders at the jail for the Express-News, arguing that only expanded free-world services can solve it. She told the paper that:

much more needs to be done with regard to the long-term needs of mentally ill lawbreakers.

“We do a great job recognizing the (mentally ill) at the front door, but the problem is the back door,” she said. “Bexar County is one of the lowest counties in per capita funding for mental health in Texas, and Texas is 48th or 49th out of the 50 states in terms of funding for mental health.

“You can do all the screening and all the jail diversion that is possible, and I'm completely in favor of that, but you've got to have services for people when you send them out in the world.”

Too often, she said, released mentally ill inmates confront a host of obstacles on the outside that hobble them in being compliant with their medical care. And then they re-offend.

“If somebody comes to the jail because it's a place to sleep and eat, you want to be able to provide that on the outside,” she said. “We don't have enough residential units, we don't have enough housing, we don't have enough supported employment, we don't have support services, we don't have intensive case management. So we drop the ball.”

Cameras in patrol cars benefit no one if not filming

Austin police have cameras in most patrol cars which have frequently proven to be an invaluable boon, but now the department is struggling to ensure its officers routinely use them. According to an editorial in today's Austin Statesman ("Value of getting it on the record, July 10"):

This is a very good time for Austin police officials to review the department's patrol car camera policies to determine whether they need to be strengthened, clarified or revised.

After several tragic incidents, this community and police officers have learned the value of video cameras in police work, and we're glad that most officers have become comfortable with them.

Video cameras have vindicated any number of officers wrongly accused of bad behavior. And they also have helped the department identify officers who are abusing their authority. But one thing we learned this week from Austin Assistant Police Chief David Carter is that cameras also are helpful as a training tool. Officers can view themselves in action and make improvements in how they deal with the public. That's an added benefit.

As in the past, the review of the camera policy was triggered by tragedy. The effort comes about two months after the fatal shooting of Nathaniel Sanders II by senior officer Leonardo Quintana, whose patrol car camera had not been turned on when he shot Sanders. One of two backup officers arriving at the scene in the parking lot of the Walnut Creek Apartments on Springdale Road also had not activated his camera. ... It was the third lethal-force incident in recent years that had not been captured on patrol car cameras.

Most Texas cities installed cameras in their patrol cars after the passage of Texas' racial profiling statute in 2001 which allowed them to gather fewer data elements at traffic stops if cameras were installed. But "installed" isn't the same as "turned on when I shot the guy." (City officials say they can't afford equipment upgrades that would make filming during encounters more automatic.)

I'm glad to see Chief Acevedo belatedly reviewing the policy and hope he decides to require officers to record encounters more comprehensively, establishing swift and sure punishments when they fail to do so - even on routine patrol, not just after critical incidents. "The camera was turned off" has become a too-routine excuse after high-profile APD shooting incidents, and for too long Austin PD seems to have tolerated a departmental culture where many officers turn their cameras off in situations where confrontations or violence may occur. But that's exactly when the cameras should be on.

Tracking new federal stimulus money for Texas law enforcement

I was scanning the Texas Register today, which is something I don't do often enough (lots of blog fodder), and ran across an interesting pattern: Several regional COGs (Councils of Government) have been meeting this week, many of them yesterday, to evaluate recommendations for spending the enlarged Byrne grant fund that was part of the federal stimulus package.

A helpful gal from from the Deep East Texas Council of Goverments filled me in on what was happening with the federal criminal stimulus money from a local perspective. The process began, she said, with eligible agencies - police, sheriffs, juvenile probation departments, etc. - sending proposals directly to the Governor's Criminal Justice Division. The governor's office then forwarded all proposals from their region to the appropriate COG and asked them to prioritize them (the Deep Easts Texas COG will receive $870,796.12, she meticulously informed me.)

For many years, virtually all federal Byrne grants in Texas went to pay for regional drug task forces like the one in the infamous Tulia drug stings or the Hearne task force whose drug sweep in a black neighborhood inspired the movie American Violet. Now, though, the money is much more widely dispersed, with 46 drug courts receiving funding in 2008 according to the annual report (pdf) from the Governor's Criminal Justice division. The Governor's office received just more than $7.5 mllion in federal Byrne grants to distribute in 2008, an amount that had declined every year under President Bush, who opposed the program.

I asked around and was told the practice of vetting Byrne grant proposals through the COGs is a new, one-time mechanism for deciding how to spend the criminal-justice related stimulus grants. In years past, Byrne spending has been exclusively the Governor's prerogative. After the regional drug task forces were gone, some Byrne money went to projects like drug courts and diversion programs while a bunch of it went for the Governor's much-ballyhooed border security grants.

Now, though, we're talking about a whole lot more money. Last year, the Governor only handed out $7,569,174 in Byrne money. This year, on top of that usual amount, the Governor received $90,295,777 in federal Byrne Justice Assistance Grant money. Of that, Perry is distributing $40 million through the COGs and will decide how to spend the remainder through his own Criminal Justice Division. Which raises a sticky political question:

Should the Governor allow COGS do decide how all the extra Byrne stimulus money will be spent, or was Perry right to hold back the majority of criminal justice stimulus funds for spending on his own priorities? That's certainly his prerogative, but I'm not sure he has a better plan than the locals for how to spend that money.

I sent requests via email to several of the COGS for examples of what's being requested, and also emailed an open records request to the Governor for a master list of Texas projects seeking Byrne grant funds. I'll keep tracking this process as it moves forward. That's a lot of new pork to distribute and I hope the Governor spends it wisely.

Wednesday Morning Link Dump

Here's some good stuff to read on Grits' usual topics while I'm focused elsehwere this a.m.:

For starters, check out "Public Intoxication = Police Brutality?," a meditation on the Rainbow Lounge raid and Texas PI statutes from Robert Guest at the Dallas Criminal Defense Lawyer's Blog. Robert can also tell you "How much does marijuana cost in Terrell?"

Doug Berman at Sentencing Law & Policy says Judge Sonia Sotomayor will be a "moderate" on criminal justice and more pro-prosecution than Justice Souter who she will replace. He's also impressed that Texas eliminated life without parole for juveniles. See also from SL&P: "In prisoners wake, a tide of troubled kids." He also turns us on to "Are humans too cruel to be kind?," at the magazine New Scientist, a fascinating piece about which I may have more to say later.

Here are three more posts I'd recommend, a couple of which are also SL&P references:

• "Mass Imprisonment: Birth of a social problem," PrawfsBlawg
• "The 5-4 Cases in Crim. Law," Crime & Consequences
• "Courting Confrontation," Simple Justice

In a link roundup this morning, Radley Balko included the following short item about using Tasers for noncompliance instead of self-defense:

Police chief tasers 14-year-old girl in the head after she ran from her mother. The kid hadn’t committed any crime. The chief told a local news station, “he does not regret his actions. He adds he warned her several times and had no other choice when she did not listen to him.” So you shoot electrically-charged barbs into her head? God help this guy’s kids.

I clicked on the link literally thinking to myself, "Don't be Texas, don't be Texas, don't be Texas , and ... Whew! Nope! Just across the border in Tucumcari, New Mexico! That's a relief, I guess. ;) I've met many Texas police chiefs I respect, and also a few who perhaps weren't the brightest bulbs in the room, but none who ever struck me at that aggressively stupid.

And finally, the Dallas News quoted some highly dubious "expert" in a story this morning about two court settlements approved by the commissioners court over inadequate healthcare in the Dallas county jail:

"They're definitely acknowledging that there was a problem. They'll settle when they think they'd get a worse outcome when they go to court," said Scott Henson, a criminal justice expert.

Hmmmmm ... would it kill you to publish the URL? I link to those guys all the time! ;)

Steep decline in ex-offenders' probability of re-offending

After about 7.7 years after their last offense, if new Justice Department-funded research is correct, people with robbery convictions not only are much less likely to commit a new offense but thereafter are statistically less likely than the general population to commit new crimes. (Click on the chart to enlarge.) For burglars and those convicted of aggravated assault, the thresholds are even earlier (3.8 and 4.3 years, respectively).

This from a new reentry study focused on post-conviction employment I noticed via Doc Berman and Ted Gest. According to USA Today ("Study could ease concern over hiring ex-offenders," July 1):

A study funded by the Justice Department concludes that over time accused robbers, burglars and batterers pose no greater risk to employers than job candidates in the general population.

In a review of 88,000 arrestees in New York state, Carnegie Mellon University investigators found, for example, that after about 7 1/2 years the "hazard rate" for an 18-year-old first-time arrestee for robbery declined to the same rate as an 18-year-old in the general population. For 18-year-olds arrested for aggravated assault, it took about four years to reduce the risk.

Hazard rates are calculated based on the time the suspect remains free from re-arrest. The calculation also accounts for the fact that risk of arrest generally declines with age.

"We believe that our analysis provides the criminal justice community with the first scientific method for estimating how long is long enough for someone with a prior record" to no longer be considered a special risk, according to the study authored by Carnegie Mellon criminologist Alfred Blumstein. ...

The study focused on three offenses — robbery, burglary and aggravated assault — because they represented some of the largest sample numbers.

According to the National Institute of Justice, which created the graphic at the top of this post with data from Blumstein's study:

The probability of new arrests for first offenders declines with time from first arrest and eventually becomes lower than that of the general population. For those in the general population who were first arrested in 1980, the probability of being re-arrested decreased steadily the longer they stayed clean of further involvement with the criminal justice system. They can be compared to the general population, which mostly includes people never before arrested, as well as to those recently released from prison, who have a high risk of re-arrest. The probability of re-arrest of the 1980 arrestees who stayed clean eventually dropped below that of other people of the same age. For those first arrested for burglary at age 18 years, in 1980, the crossover occurred 3.8 years later at age 21.8. If their first arrest was for aggravated assault, crossover occurred 4.3 years later at age 22.3, and if the arrest was for robbery, it was 7.7 years later at age 25.7. The probability of re-arrest at each of these crossover points was slightly less than 10 percent.

Accidents mount in face of Dallas constables', sheriff's outdated pursuit policies

Tanya Eiserer at the Dallas News is arguably the best crime-beat reporter in the Lone Star State, and a well-researched article last week about pursuit policies at the Dallas Sheriff and constables' offices is a good example why I say that.

After "Dallas County constables [were] involved in two of three police pursuits that occurred in the span of two days, including Monday's 90-minute chase that ended in a T-bone crash in Garland," Eiserer followed up with a story comparing pursuit policies acquired under the open records act for all the other constables' offices and large law enforcement agencies ("In Dallas County, sheriff's department and constables have wide latitude for pursing suspects," July 2). Here's an excerpt:

All five of the constable offices and the sheriff's department allow officers to chase fleeing motorists for any type of criminal infraction, including traffic violations.

Many other area enforcement agencies also allow officers to chase for traffic violations.

The sheriff's department's policy states that deputies should stop pursuing a fleeing motorist wanted on a traffic violation or some other Class C misdemeanor "when it becomes apparent that the violator will do whatever is necessary to evade the deputy."

The Dallas Police Department, the county's largest law enforcement agency, strictly limited police pursuits in 2006, allowing officers to chase only violent felony suspects.

Police have credited the policy with a sharp reduction in accidents, deaths and injuries. They also say they have found no evidence that criminals are more likely to flee as a result of the policy.

The constables and sheriff's department generally have similar limitations on what their officers cannot do, including driving the wrong way down a street, ramming a fleeing vehicle to force it off the road and setting up roadblocks.

Some set limitations on how many squad cars can be directly involved in the chase.

She's also not afraid to call "bullshit," politely, of course, when elected officials promote fallacious arguments:

The general consensus among elected county law enforcement agencies is that restricting when their officers could pursue would lead to a spike in lawlessness.

"The day that we make it known that we are not going to chase, more criminals are going to run from us and the likelihood of more accidents occurring is going to be higher," Dallas County Constable Jaime Cortes.

Geoffrey Alpert, a University of South Carolina criminologist who studies police pursuits, said that's a prevalent myth among officers and that research has shown that offenders are no more likely to flee after a department places restrictions on vehicle pursuits.

"Most people are fleeing for stupid reasons," Alpert said. "Police pursuits should be limited to violent crimes."

What makes Tanya's reporting special is that she doesn't stop at the obvious story - three crashes related to pursuits in two days, two by constables' deputies - but goes on to examine the institutional issue of whether their policies may have contributed to this unhappy confluence of events. And she does it routinely. Well done, as usual.

Would Wii graffiti app promote or reduce real-world graff?

I've been advocating on Grits for mainstreaming graffiti as much as possible, and this idea - a proposed-but-not-yet-marketed graffiti app for the Nintendo Wii - might take graffiti about as mainstream as it could get.

The idea immediately made me think of the exhibition by the Liberty Science Center in New Jersey that drew criticism for a popular museum installation that let young kids do graffiti on an electronic, erasable tableau, a concept also being explored in a variety of environments by Graffiti Research Labs. But a Nintendo Wii application would take these ideas from the rarified realm of museums and researchers and put them in the hands of potentially every teenager with a gaming system. Here's the account from Gamespot's System Update blog:

At last month's Electronic Entertainment Expo, Microsoft showed off a painting program for its forthcoming motion-sensing add-on, Project Natal. Now, two German graduate students have won a prestigious award for a more streetwise painting application for an existing motion-sensing platform--the Nintendo Wii.

On July 4, German design firm International Forum Design awarded its annual prizes to promising artists in the European country. One of the winners of the iF Communication Design Award was WiiSpray, an art application which turns the Wii remote into a virtual spray can. The software remains in the experimental stage, and has not been approved to be part of any retail product by Nintendo.

Conceived in 2007 by Bauhaus University students Martin Lihs and Frank Matuse after the former collaborated with a Portugeuse graffiti artist, Wii Spray is based on an Adobe Flash-based application called WiiFlash and standard Wii technology. The latest version actually lets users snap the Wii remote into an artificial spray can which can apparently recognize actual different types of nozzles and caps. The app also allows users to combine up to 128 colors via radial on-screen palette, and has none of the chemical mess and legal complications of real grafitti--although it does require a video projector or very large television to be practical.

Whaddya think? I'm sorta aged out of the whole video game era and have no opinion on whether significant numbers of youth might spend their time that way. I suspect they might, though given that the technology requires a projector or big-screen TV, it's quite possible there'd be little crossover between Wii graff writers and the ones painting on buildings and underpasses.

But the technology raises a number of interesting questions from the perspective of public policy debates around graffiti:

If a Wii graffiti app were marketed and widely popularized, would it encourage illegal graffiti in the real world, or supplant it by giving bored teens another outlet? Or might it just give graff writers means to practice at home, perhaps improving the quality of the street product? (For an example of what graff writers can do with a little more practice, check out the pool photos at Graffiti Research Labs' Flickr site.)

Relatedly, if the new app did become popular and commonly available, how might that influence attitudes toward graffiti by those who play it as compared to non-gamers?

Finally, in an era where "Grand Theft Auto" is a popular video game for youth but overall crime rates are declining, is there any reason to believe making a video game of graffiti will increase street graff in the real world?

Here's a YouTube promo for the as-yet-unreleased app:

Praise for PEP

There's a nice column in the Houston Chronicle about a visit by a group of businesspeople to Catherine Rohr's much acclaimed Prison Entrepreneurship Program ("What can we learn from prisoners?," June 7), which apparently made quite an impression:

In five years, 440 prisoners have graduated from the four-month Prison Entrepreneurship Program (PEP). The majority have landed good, honest jobs within the first month of release. Fifty-eight have started their own business, ranging from landscaping to software development. PEP´s volunteers number more than 450 MBA students and more than 1,000 business executives. ...

While first-time volunteers may have entered with an “It’ll feel good to help these less fortunate souls” attitude, we were all shocked to be learning from them.

The men were so polite and eager to learn, we couldn’t help but open our hearts. You’ve heard before that we have something to learn from everyone. I sincerely think that often, but am seldom able to consistently maintain that view. That day, I went with the attitude of looking forward to sharing my business knowledge. What was I, a business professional, going to learn from a murderer?

PEP is largely about building character. It’s making men act like real responsible men. Participants take classes on etiquette, substance abuse, relationships and fatherhood.

The businesspeople visiting gushed over the program:

The theme from the business leaders was summed up by one volunteer, “I came here in fear for my life, and I leave here dumbfounded at my misconception. Outside these walls are people that are so fearful of everything, especially in this economic condition — and the most joy, love and happiness I have seen in years is within this room. Thank you for your inspiration.”

From everything I've heard PEP is a wonderful but small program with a long waiting list. Particularly given the level of support Rohr has been able to garner from the business community, TDCJ would probably get a lot of anti-recidivism bang for the buck by investing state resources to expand it.

Does a receptive climate toward immigrants reduce crime?

Radley Balko at Reason thinks he has an answer for why El Paso ranks among the safest large cities in America:

"If you want to find a safe city, first determine the size of the immigrant population," says Jack Levin, a criminologist at Northeastern University in Massachusetts. "If the immigrant community represents a large proportion of the population, you're likely in one of the country's safer cities. San Diego, Laredo, El Paso—these cities are teeming with immigrants, and they're some of the safest places in the country." ...

What's happening with Latinos is true of most immigrant groups throughout U.S. history. "Overall, immigrants have a stake in this country, and they recognize it," Northeastern University's Levin says. "They're really an exceptional sort of American. They come here having left their family and friends back home. They come at some cost to themselves in terms of security and social relationships. They are extremely success-oriented, and adjust very well to the competitive circumstances in the United States." Economists Kristin Butcher and Anne Morrison Piehl argue that the very process of migration tends to select for people with a low potential for criminality.

Indeed, Balko argues that:

An immigrant group's propensity for criminality may be partly determined by how they're received in their new country.

"Look at Arab-Americans in the Midwest, especially in the Detroit area," Levin says. "The U.S. and Canada have traditionally been very willing to welcome and integrate them. They're a success story, with high average incomes and very little crime. That's not the case in Europe. Countries like France and Germany are openly hostile to Arabs. They marginalize them. And they've seen waves of crime and rioting."

El Paso may be a concentrated affirmation of that theory. In 2007 the Washington Post reported on city leaders' wariness of anti-immigration policies coming out of Washington. The city went to court (and lost) in an effort to prevent construction of the border fence within its boundaries, and local officials have resisted federal efforts to enlist local police for immigration enforcement, arguing that it would make illegals less likely to cooperate with police. "Most people in Washington really don't understand life on the border," El Paso Mayor John Cook told the Post. "They don't understand our philosophy here that the border joins us together, it doesn't separate us."

Other mayors could learn something from Cook. El Paso's embrace of its immigrants might be a big reason why the low-income border town has remained one of the safest places in the country.

What do you think? Does its receptive attitude toward immigrants explain El Paso's impressive recent record on crime, or is it something else? If so, what? I've often wondered that myself and this is as plausible an explanation as any I've heard.

Their next plan is to beat up a rabbi on Yom Kippur

I hadn't mentioned the case sooner because I really have nothing insightful or thought provoking to add, but the fallout from a recent TABC/police raid in Fort Worth of a gay bar on the anniversary of New York's Stonewall riot has begun to snowball, receiving a lot of national press attention. The New York Times covered it over the weekend, and here's a snippet from today's LA Times coverage ("Police raid at gay club in Texas stirs ugly memories"):

Reporting from Fort Worth -- Todd Camp and some friends had just marked the 40th anniversary of the police raid on New York's Stonewall Inn by screening a documentary on the historic gay riots and then heading for drinks at the Rainbow Lounge.

Camp remembered looking across the bar, packed with gay and some straight couples, and marveling how much times had changed since Stonewall -- the spark that ignited the gay rights movement.

And then the police came.

"No one knew what was happening," said Camp, founder of the Q Cinema gay film festival in Fort Worth. "All I could think was, 'It's Stonewall all over again, and we can't do anything about it.' "

Seven officers from the Fort Worth Police Department and two agents from the state Alcoholic Beverage Commission clashed with about 300 bar patrons in the early hours of June 28, reviving an ancient dread that even this conservative Texas city had thought long past.

Seven people were arrested, and witnesses said one man had his head slammed into a door by law enforcement officials. Chad Gibson, 26, was hospitalized with a brain injury and released Saturday.

"It was strange that all this happened on that night of all nights," said Mark Potok, a director at the Southern Poverty Law Center in Alabama. "If it was a simple mistake, then it was a very, very foolish one."

Fort Worth Police Chief Jeff Halstead defended his officers, saying they entered a hostile environment and were taunted by patrons with "sexually explicit movements."

Police first said Gibson harmed himself, then said an officer reacted because Gibson groped his crotch in the jam-packed bar. But other witnesses and now Mr. Gibson are telling a very different story. As the Dallas News dryly described the contradiction: "Police initially said Gibson had injured himself when he fell and hit his head. That contradicted witnesses who said police slammed him into the wall and floor and aggressively tackled several other patrons who were arrested that night."

I have no idea if Fort Worth police and TABC officers knew that evening was the anniversary of the infamous Stonewall riot in New York City, much less if any of them consciously viewed their actions as making some kind of statement about that notorious anniversary. But I don't blame Rainbow Lounge patrons (or others in DFW's large gay community) for leaping to that obvious connection.

For those who want more details, The Dallas Voice has really been earning its keep on this story, publishing eyewitness accounts and also blogging up a storm, see here, here, here, here, here, here, here, here, here, here, and here.

Lack of AC chilling for TDCJ staffing efforts

The Dallas News published an AP story yesterday titled "Most Texas state prisons deal with summer heat without air conditioning," which reviews an issue that's all too familiar for most inmates and prison employees:

Only 19 of 112 Texas state prisons are air-conditioned, leaving most of the state's 155,000 prisoners and those who guard them to face the summer heat with fans and primitive air-circulating systems.

Prison officials say the 19 air-conditioned prisons are generally reserved for the sick and mentally ill.

So far this year, nine inmates and seven prison employees have suffered heat-related illnesses. ...

Up to 15,000 miniature electric fans are sold systemwide each year. The fans cost $22 each at the prison commissary, and "loaners" are provided to inmates deemed indigent. Hallways, day rooms and dormitory units are equipped with fans.

State Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee, said the heat is "part of the reality of going to prison."

In addition to the medical units, there's also an air-conditioned state jail in downtown Houston, I learned recently when it was reported the AC went out, which is provided because of the high-rise architecture. Most prisons without AC, particularly older units, were designed to promote air flow with that in mind.

Certainly for inmates, as one prisoner said in the story, "It's useless to be crying about this ... We're the ones who put ourselves in prison." But as a practical matter, the bigger issues for the state are working conditions for staff and medical costs. Notice 7 of the 16 cases of heat-related illnesses reported were actually employees, not inmates - a far greater ratio than their proportion in the units. Typically, summertime worsens understaffing at Texas prisons with the number of unfilled guard slots rising steadily until the weather cools.

This year the recession and aggressive TDCJ recruiting efforts have cut significantly into that staffing shortfall for the first time in many years, but it's an open question how many of those rookie guards will still stay on the job after they've endured a few 108 degree days in August.

UPDATE: The AP story from the Dallas paper was actually based on this longer piece in the Houston Chronicle.

Tagging and community pride

It's always important to take pride in your work, which was the subject of an hysterical sketch about gang graffiti that aired on MAD-TV last night. Given the frequent policy discussions on the topic usually presented on this blog, I thought readers might enjoy a lighter take. Check it out:

Too many Texas bribery cases to ignore

"The wicked accept secret bribes to pervert justice." Proverbs 17:23

Maybe it's really the case that bribery and public corruption are becoming more commonplace, or maybe I'm just paying closer attention, but here's yet another instance of drug-war related corruption, this time involving an El Paso-based DEA Agent:

A former DEA agent who pleaded guilty to bribery charges was sentenced to a year in federal prison on Thursday, acting U.S. Attorney John E. Murphy announced.

George H. Brunner pleaded guilty in April to accusations he accepted money and gifts in exchange for helping Mexican nationals to obtain U.S. visas. Brunner was assigned to the DEA office in Juarez.

Brunner must surrender to authorities by Sept. 14 to begin serving his prison term. He must also pay a $3,000 fine and be placed under supervised release for three years after finishing his term, officials with the U.S. Attorney's Office said.

This is not exceptionally surprising, given that the FBI has been sounding the alarum now for a couple of years regarding increased corruption among US drug, immigration, and border patrol employees. What is surprising, though, is how commonplace serious bribery allegations in Texas have become.

In just the last month Texas has seen a Houston-based waste management company accused of bribing the wife of the US House Judiciary Chairman John Conyers to get her to change her vote in their favor on the Detroit City Council. Another Houston company, Kellogg Brown and Root, paid more than $500 million in fines and fees this spring to get out from under federal bribery allegations related to Nigerian contracts.

County employees in Houston processing urinalysis results were allegedly taking bribes to alter documents in two separate county departments. Last fall, in Bexar County (San Antonio) accusations arose regarding low-level graft influencing bail bond referrrals. (Haven't heard an update on where that investigation stands.)

The Dallas school district, the Dallas City Council, Dallas state Rep. Terri Hodge, the San Antonio Housing Authority and the El Paso District Clerk, a newly elected El Paso District Judge, other El Paso county and school district officials, not to mention the Sheriff of Starr County, all currently face or have already seen convictions stemming from bribery allegations.

I spent quite a bit of time last year reporting how Sheriffs in Bexar and Potter Counties were hounded out of office over allegations of commissary-related bribery. In Bastrop, the Sheriff recently was convicted of corruption including bribe taking to protect illegal gambling operations, a habit that also took down the Laredo chief of police based on similar charges.

Some of those accused may turn out to not be guilty, but even looking only at the ones who already pled guilty or where the government secured a conviction, this is a boatload of recent corruption cases in one state, even for a big one. And since I mostly track just criminal justice cases, there's little question I'm barely scratching the surface with the incidents listed above.

Rooting out public corruption doesn't seem to be high on anybody's priority list with the exception of the FBI, but the feds can't do it alone. State and local resources and attention must also be focused on the problem if we ever want to see systemic change instead of just a few symbolic heads hoisted on the occasional federal pike.

DPS must change rules to give life to Driver Responsibility indigency program

UPDATE: This item contains factual errors which are detailed and corrected in this post.

One of the under-recognized achievements of the 81st Texas Legislature was the addition of two amendments by state Rep. Sylvester Turner to the Department of Public Safety's Sunset bill requiring the agency to implement an indigence program for its Orwellian-named Driver Responsibility surcharge. (See pp. 186-190 of the bill-pdf).

According to material from the vendor, MSB Government Services, presently 6% of Texas drivers are subject to "driver responsibility" surcharges, but reportedly 65-70% of total fees go unpaid--largely because you can't get blood from a stone even if you take its drivers license away.

The Sunset Bill requires DPS to create an "Indigence Program," something the agency previously had the authority to do but chose not to implement. The bill defines "indigence" at 125% of the federal poverty level, lists a number of public-assistance related benchmarks that automatically qualify a petitioner for the exception, then declares without equivocation that the "department shall waive all surcharges" for everyone deemed "indigent," a determination that's made under the bill by the convicting court.

Those who already owe surcharges would not qualify for the indigency program have to petition the convicting court and demonstrate their indigence through a variety of means outlined in the bill which regrettably does not take effect until 2011 (see the comments section for more background on the correction).

When the legislation finally takes effect two years from now, the Sunset bill will effect a number of changes - most of them suggested by the collections vendor - to give people additional time to make more numerous, smaller payments so more people can afford them. A DRP surcharge of $500, for example, previously had to be broken up into at most 10 installment payments; under the Sunset bill an individual owing that amount could pay it off in 36 installments.

Also, DPS will no longer be able suspend someone's driver license after 30 days if they don't pay the surcharge. They will have to wait 105 days, or until more notice has been given (including a first-ever requirement that notices be forwarded to any address registered with the USPS). In addition, drivers will be able to get their DL suspension lifted simply by beginning to make installment payments, whereas previously it was suspended until they'd paid the surcharge in full.

It should be mentioned that, in addition to the now-required Indigence Program, the agency still has not implemented the "Amnesty" or "Incentive" programs authorized by Sen. Steve Ogden's SB 1723 in the 80th Legislature. Like the Indigence Program, which was also first authorized in that bill, SB 1723 gave DPS the option to implement amnesty and payment incentive programs precisely to avoid untenably high non-collection rates like we commonly see today. If DPS continues its failure to utilize the tools the Lege gave them to make the surcharge more fair, one can imagine addtional pressure from lawmakers in future sessions to mandate more of these heretofore optional programs.

As mentioned previously, the Public Safety Commission discussed none of these issues, including the newly mandated indigence program, when the Driver Responsibility fee came up at their meeting last month. Instead, commissioners were mostly concerned with boosting collections rates by potentially garnishing wages or placing liens on people's homes, a terrible idea to implement during the worst economic downturn since the Depression. Clearly they haven't received the message from the Lege that they need to be making these surcharges more consumer friendly, not ever-more hostile to the whopping 6% of Texas drivers who owe them.

RELATED:

• Department of "Public Safety" or "Collections"?
• Indigency program mandated for 'driver responsibility' fees?
• Senate would let judges reduce misnamed 'driver responsibility' fee
  
• 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

3 false convictions linked to dog-based scent lineups in Florida

Since I first wrote about "scent lineups" conducted by dogs, this questionable forensic tactic has garnered a lot more attention with another civil suit filed in Victoria and critical national news coverage (in USA Today), all focused on Texas' chief proponent and practitioner of scent lineups, Fort Bend Sheriff's Deputy Keith Pikett.

Now thanks to Radley Balko I discover there's a similar case in Florida that's already resulted in three exonerations and could lead to dozens more. Writes columnist Scott Maxwell in the Orlando Sentinel ("How many more are innocent," June 14):

[Defendant Bill] Dillon, after all, was not alone in his wrongful imprisonment. At least two other men suffered the same fate — and another shared link: a dog.

Not just any dog. A wonder dog helped convict all three men: a German shepherd named Harass II, who wowed juries with his amazing ability to place suspects at the scenes of crimes.

Harass could supposedly do things no other dog could: tracking scents months later and even across water, according to his handler, John Preston.

If it sounds hard to believe, there's a good reason.

After providing prosecutors with testimony for years, Preston was finally discredited by a judge who had the sense to do what others had not: test the dog for himself.

But not until after Preston and his dog had appeared in dozens of cases.

We know that at least three of those cases were overturned — after the defendants collectively spent more than a half-century in prison.

The question now is: How many others suffered the same injustice?

An even better question is: Do prosecutors, the attorney general or even the governor care enough to find out?

The same questions could be asked of Texas officials vis a vis Deputy Pikett's dogs, whose olfactory infallibility was disproven recently by DNA testing in a Victoria murder case. If just three who were falsely accused by the Florida dog handler collectively spent more than 50 years in prison, how many in Texas are similarly situated because our courts allow the untested and unproven use of dogs as de facto witnesses?

Clean urinalysis results allegedly exchanged for bribes in Houston

I wrote last week that Texas has enough ongoing corruption cases to support a single-issue Texas Bribery Blog, and two recent examples provide a case in point. Somehow I missed the story about a "urine monitor" at the Harris County probation department who was "charged with bribery in May for allegedly taking $200 to submit a fake drug test form." As it turns out, though, it wasn't just a one-time deal. Investigators this week announced that an undercover sting caught another county employee allegedly doing the same thing in the pretrial services division, reports the Houston Chronicle ("Harris County urine monitor charged with bribery," July 2):

Prosecutors Thursday said they are seeking more possible victims after arresting a Harris County employee accused of taking bribes to provide clean urine to defendants out on bail.

Jorge Alfonso Campble, 45, was arrested Wednesday on charges of bribery and tampering with evidence after investigators set up a sting with marked money, video recording equipment and a 23-year-old defendant on bail for possession of marijuana, Assistant District Attorney Jennifer Devine said.

He is the second county urine monitor to face bribery charges in connection with court-required urinalysis in two months. ...

In May, a urine monitor who worked for Harris County’s Community Supervision and Corrections Department for less than two months was charged with bribery after being accused of taking $200 to turn in a fraudulent drug test form.

The case against Thomas Edward Walker, 22, who was accused of falsifying a report instead of ensuring that the person’s urinalysis was performed correctly, are pending.

I've never been a big fan of urinalysis and other probation-style bail conditions, anyway, considering them a needless source of expense that promotes jail overcrowding without much resultant benefit in public safety. That's even more the case if the system is so riddled with corruption that positive urine tests are overlooked in exchange for bribes like they were Mexican traffic tickets. Then you have to begin to wonder, what's the point?

Two of these cases cropping up in different Harris County departments makes the matter even more worrisome; it means the problem apparently isn't localized, certainly not in just one department and perhaps not just in Houston. These functions are performed in a twilight land that typically receives little public scrutiny and it wouldn't surprise me to discover the same problem happening in other jurisdictions if anybody bothered to look.

Pretrial hearing set on TYC sex abuse cases

Hopefully there will be some MSM reporters heading out to Ward County to cover the trials of two former TYC employees accused of sexually abusing inmates when the case finally gets underway July 23, as reported by AP. This news confirms my sense that it was a recalcitrant judge, not some hesitance to prosecute on the part of the Attorney General, that was holding up prosecutions in these high-profile cases.

Inmate families viewed as revenue source instead of anti-recidivism partners

Inmate families offer the best and most frequently cited source of assistance for offenders who want to turn their lives around, but too often the state treats them as criminals, too, instead of as partners in promoting their loved ones' rehabilitation.

That trend was exacerbated by a Texas Supreme Court ruling last month allowing the state to deduct money from inmate commissary accounts to pay for court fees and victim restitution. According to the Austin Statesman ("Ruling gives courts access to inmate trust funds," June 30):

Texas state prison convicts could soon see their trust funds — more than $33 million overseen by the state — getting tapped to pay overdue court costs and related expenses.

A recent Texas Supreme Court decision allows prison officials to withdraw funds from the inmate trust accounts without first notifying a convict.

Before that, officials said, convicts had to be alerted in advance so they could challenge the garnishment — and many did.

"This changes everything — and allows the counties to go in and collect back court fees and costs up front, and the inmate will have to challenge that after the fact," said Huntsville lawyer Bill Habern, who is familiar with the case. "That will be difficult."

In addition, he said, the debits will likely come as a surprise, because many convicts are not notified of their court costs until after they are in a prison cell, if then.

"Considering the economic situation, we expect the counties to start fleecing trust fund accounts," said Helga Dill, a Dallas-based prison rights activist. "Our concern is that the inmate is deprived of funds sent by family members who are in most cases poor. ... If an inmate can waive child support until he is released and has employment, then that should be possible with court costs as well."

Lest convicts worry that they could now wake up to find their trust funds emptied to pay old court costs, Texas Department of Criminal Justice spokeswoman Michelle Lyons said state law limits how much money in those accounts can be taken: only 20 percent of the initial deposit into a trust fund, and 10 percent of any subsequent deposit.

In all, prison officials said the inmate trust accounts contain more than $33.6 million — including about $17.6 million in cash and another $16 million that is invested in Treasury bills.

Although most of the accounts contain only a few hundred dollars, which convicts use to buy snacks, hygiene items and other commissary items, some funds contain much more — including inheritances and other payments they received after going to prison. As of last week. the largest account contained almost $234,000, and next-largest was more than $168,000, prison officials confirmed.

Lyons said that more than $13.5 million is being sought from the inmate accounts by court officials across Texas, though she did not know the total amount that inmates owe.

For inmates with large amounts from an inheritance or other sources of personal money, it's justifiable to seize a portion of inmate trust funds for court costs. But for the vast majority of inmates whose relatives supply what little money is in those accounts, seizing these funds harms families (since it's really their money) more than the prisoner. Perhaps by rule TDCJ should set a threshold of, say, a couple hundred dollars below which commissary funds won't be raided.

Prisoner families are similarly being squeezed by high costs for the new prison phone service, from which half of profits goes into the state crime victim compensation fund. The installation of new phone systems dramatic improved inmates' ability to stay in closer contact with families. But the state's focus on profiteering from the phone calls siphons off family resources and tangibly reduces families' interaction with their loved ones - both results that can worsen inmate recidivism.

So can inmate families afford these extra costs? Probably not, according to a recent survey of 427 relatives of returning inmates in Houston by the Urban Leauge (pdf):

As a group, the family members in this study were better educated than their returning relatives. More than seven in ten family members (71 percent) reported educational attainment at or above the high school level, and over a third (37 percent) reported at least some college education. Despite these credentials, only half (52 percent) were employed at the time of the interview. Among those who were not employed, the most common reasons provided were that they were retired or too old to work (39 percent), were permanently disabled (23 percent), or had other health problems that prevented them from working (16 percent). Among those who were employed, some were working long hours or multiple jobs. Two in five (40 percent) were working more than 40 hours per week, and one in eight (13 percent) was working more than one job. The median wage reported by employed family members was $12.00 per hour.

Assuming these are the same folks who'd likely be calling inmates in prison or contributing to their commissary accounts, these are mostly very poor people, many of whom live on fixed incomes. By creating what amount to economic punishments where families serve as stand-ins for the offender, the state lessens precisely the type of support most likely to help offenders succeed when they get back to their home communities.

In both the Supreme Court ruling and the case of phone fees, the state behaves as though families bear the same responsibility for court costs and crime reparations as the person who actually did the deed. In reality, though, if that offender is going to turn his or her life around it will more likely be because of their family's help than any punishment or assistance the state gives out. If state policies valued public safety as much as revenue generation, we'd treat inmate families as partners instead of constantly looking for ways to bleed them of cash.

Presser urges Perry to add Tim Cole pardon authorization to call

Today is Timothy Cole's birthday, and the Texas Legislature opens its special session I'm headed up to the capitol soon to attend a:

Press conference commemorating Tim Cole's birthday and requesting the Governor add a posthumous pardons constitutional amendment to the call for the special session

( AUSTIN )// Senator Ellis, Ruby and Cory Session, Tim Cole's mother and brother, will hold a press conference on Wednesday, July 1, 2009 at 2pm on the South Steps of the Capitol, to commemorate Tim Cole's birthday and urge Governor Perry to add a posthumous pardons constitutional amendment to the call for the special session.

WHO: Sen. Rodney Ellis, and Cory and Ruby Session, brother and mother of Tim Cole, who was posthumously exonerated in 2009

WHAT: Press conference commemorating Tim Cole's birthday and requesting the Governor add a posthumous pardons constitutional amendment to the call for the special session.

WHERE: South steps of the capitol

WHEN: July 1, 2009, 2pm

Via Sen. Rodney Elllis' office.

I realize Governor Perry wants to limit the "call" for the special session, but surely it would hurt nothing to add this constitutional amendment? All it would do is give him power to posthumously pardon Timothy Cole and others similarly situated (a procedure unavailable currently under the Texas Constitution). There's no constituency against the cause and it's hard to see what would be the downside.

UPDATE: Sen. Ellis opened the press conference by pointing out that the Governor had already added an item to the special session call related to toll roads that wasn't an emergency and said he should add the constitutional amendment, too. Ellis said his staff had researched the issue and he didn't believe a constitutional amendment was necessary for the Governor to give Cole a pardon, but if Perry was going to insist it was, he said, then it was up the Governor to add the issue to the call. Ellis said he would also ask Attorney General Greg Abbott to review a 1965 opinion by then-AG Waggoner Carr.

Cory Session, Tim Cole's brother, said Cole would have been 49 today. Noting that the press conference had been moved indoors because of rain, he said the raindrops were teardrops from heaven shed because his brother's case could still not be finally resolved. His family has not received an answer from the Governor so far, he said, why they didn't want to put the issue on the special session's call.

SCOTUS to review Miranda, civil commitments

Via SCOTUSBlog, I notice the Supreme Court this week agreed to hear two interesting looking criminal cases:

Docket: 08-1175
Title: Florida v. Powell
Issue: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?

• Opinion below (08-1175, Supreme Court of Florida)
• Petition for certiorari (08-1175)
• Brief in opposition (08-1175)

Docket: 08-1224
Title: United States v. Comstock
Issue: Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) “sexually dangerous” persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Texas has a civil commitment law similar to the one described in Comstock, though I don't know whether this case will have implications for our state statute. And Florida v. Powell addresses whether Miranda warnings must inform defendants they have the right to have a lawyer present during a police interrogation; the Florida court answered yes so it's somewhat worrisome that SCOTUS would seek to review it.