Monday, August 31, 2009

Sam Sparks v. Rissie Owens: Federal judge may unmask secretive parole process

The Austin Statesman's Mike Ward brings word ("Court cases forcing change at parole agency," Aug. 31) of a recent clash between US District Judge Sam Sparks and an attorney from the Board of Pardons and Parole:
U.S. District Judge Sam Sparks had heard enough. After several days of listening to attorneys for the State of Texas defend the state parole board's operations, he became exasperated by the testimony of a parole board lawyer.

"The lady is wrong. She is stating issues of the law that are wrong," he told the jury.

The rare display of judicial pique resulted in a mistrial after state lawyers objected that his remarks could have improperly influenced jurors. But Sparks had already made it clear that he had serious questions about whether parole board policies violate a prisoner's right to due process.

Sparks is not the first judge to make such findings. In three other cases in two years, Austin federal judges have questioned the legality of the state's policies for placing restrictions on parolees, particularly sex offenders, who face some of the strictest conditions on their parole. Across Texas, parole officials said, more than a dozen other lawsuits on the issue are pending.

The court cases have highlighted criticism of the parole board for not taking time to adequately review parole cases, for operating in secret, for not detecting errors in paperwork and for placing conditions on parolees that are not justified by the evidence. Although most of the cases so far have dealt with sex offenders, observers say that changing the rules for those cases could open the door to broader changes, including more openness.
RELATED: Federal judge: Parole board may have improperly labeled thousands as sex offenders.

Cameron Todd Willingham: Debating his 'innocence'

The Cameron Willingham case promises to become one of the most hotly debated capital cases in Texas history, being hailed as it is as the first example of a demonstrably innocent person being executed.

Others, like the prosecutor in the case, insist Willingham was guilty even if the forensics were flawed. See his column from the Corsicana Sun (and a rebuttal from Michael Landauer at the Dallas News' Death Penalty Blog). Judging by comments to Grits last post on the topic, at least some people could and will justify Willingham's execution even if he didn't commit the crime for which he was convicted because of past crimes and bad behavior.

Meanwhile, David Grann in the New Yorker's September 7 issue attempts to provide an antidote to this meme that other testimony would have convicted Willingham in a 16,000 word investigative piece paintakingly evaluating all the other evidence in his case, concluding that "Aside from the scientific evidence of arson, the case against Willingham did not stand up to scrutiny."

Adding its voice to the chorus of disapproval, the New York Times editorialized today that "it is outrageous that Texas is conducting its careful, highly skilled investigation after Mr. Willingham has been executed, rather than before."

People are going to be debating the details of this case for a long time.


Jail Standards Commission altered needs assessment for Grayson County Jail

According to Kathy Williams at the Sherman Herald Democrat ("How many beds needed at Grayson County Jail?," Aug. 30), the Texas Commission on Jail Standards increased its estimates for how many jail beds Grayson County would need in the near future after prodding by a private contractor.

Getting an accurate projection of the county's future needs has become a politicized issue because some members of the commissioners court would prefer to overbuild the facility and let a private contractor lease out the extra beds. At one point proponents wanted to build a 1,500 bed jail; the latest proposal was for 750.

But some locals doubt the projections for massive growth in the jail population, charging that a private contractor convinced state regulators to inflate the number of beds the county needs. The verity of those projections has become a pivotal factor, reported the Herald-Democrat, citing documents obtained under the public information act:

Asked how the commissioners court set the size for the jail they have discussed at 700-plus, Grayson County Judge Drue Bynum cites the Texas Commission on Jail Standards recommendation. There are two Texas Commission on Jail Standards reports. The two reports, published Nov. 24, 2008 and May 28, 2009, are identical except for page 5, "recommendations." Otherwise, they contain the same statement of "current jail conditions," "incarceration trends," "population predictions" and "additional considerations." The only changes in wording concern peak population factor and how it is calculated.

"Peak populations represent those days in each month when the jail has the highest number of inmates. The peak population factor represents an additional percentage of beds that are needed in a jail to accommodate those days when the jail population is higher than average," both reports state on page 4.

The November 2008 report states, "The average peak population during the last 12 months was 398 while the average daily population was 375; this represents a difference of 23. To calculate the peak population factor, 23 is divided by ADP of 375. This represents a factor of 6 percent which will be utilized in calculating the projected capacity needs in the next section."

This method of determining peak population factor led TCJS to recommend that a 528-bed jail would satisfy Grayson County's needs through 2028.

The May 2009 report states "The peak population during the last 12 months was 453 which occurred in August of 2008 ... While the average daily population (ADP) was 375, this represents a difference of 78. To calculate the peak population factor, 78 is divided by the ADP of 375. This represents a factor of 20 percent which will be utilized in calculating the capacity needs in the next section."

This method of using a one-day high, plus adding 10-percent because of Grayson County's proximity to the Metroplex, led Texas Commission on Jail Standards to recommend a 720 bed Grayson County jail as adequate until 2028.

Between these two reports, March 2, 2009, Grayson County Commissioners Court selected Southwestern Correctional LLC as the private company it wants to build and operate a new jail. The company does not yet have a contract with the county.

April 29, 2009, Tim Kirpiewski of Southwestern Correctional, sent a letter to the Texas Commission on Jail Standards, stating in part, "We request, on behalf of Grayson County that the Commission on Jail Standards revisit the conclusions reached in its latest Facility Needs Analysis Report last year and consider updating that report based on additional studies and actual statistics provided in this letter."

Sherman Mayor Bill Magers, who made the two Texas Commission on Jail Standards reports, the Southwestern letter to TCJS and other documents public Aug. 17, explained his objection to the second method of calculating recommended jail size.

"The slight wording change (between the two Texas Commission on Jail Standards reports) results in a significantly skewed methodology for calculating future jail capacity needs." Magers said. "It is tantamount to family of six constructing and paying M & O (maintenance and operation) on an eight-bedroom house because the in-laws come once a year and spend Christmas night in their home. The 2009 report treats a one-night event as an every day occurrence."

Accompanying this reportage was an editorial posing many of the questions raised by this debate for the Grayson Commissioners Court. To those one could add several more probing questions over the alleged influence of a private contractor on TCJS' jail population needs estimates.

I called TCJS Executive Director Adan Muñoz and his Assistant Director Brandon Wood to ask about these allegations. They emphasized that it wasn't just the private contractor but also the Sheriff's Office, the County Judge and other local officials who had encouraged them to revisit their estimates. But I was disappointed to learn that they had indeed altered their methodology in response to those arguments - IMO such estimates shouldn't be politicized by changing them in reaction to proponents or opponents in local jail building squabbles.

Muñoz said that when credible evidence was presented arguing for a different methodology, it was his agency's responsibility to consider it. In this case, data was provided purporting to show that the jail had already exceeded on at least one day the capacity TCJS estimates said wouldn't be needed until 2015.

However, those peak inmate numbers, said Assistant Director Wood, turned out to be ephemeral information to collect. The Sheriff's Office told state regulators that the average daily population of the Grayson Jail for September '08 was 475. By contrast, in its letter in April, Southwestern Correctional told TCJS the peak number of inmates in September '08 was 467, which of course is impossible if, as the Sheriff said, the average was higher. (!)

Wood said after independently recalculating the numbers from daily population reports, TCJS finally settled on 478 beds as the "peak" for September '08, but that figure included inmates housed from other counties as well as 96 beds leased to the US Marshall's Service. In any event, both he and Muñoz emphasized that estimates of future need are merely "scenarios" based on different sets of assumptions. And Muñoz emphasized he'd successfully resisted pressure from local Grayson County interests to justify estimates as high as 1,100, which he said weren't warranted using even the most liberal assumptions.

Muñoz said TCJS also changed its estimates in Austin County using the new Grayson methodology, in part because of their similar settings on the outskirts of a larger metropolitan area.

However it seems like such calculations - which are inevitably used in highly politicized ways in local jail debates - should be more standardized and less subject to lobbying efforts by local jail building interests. Maybe TCJS changed their methodology for legitimate reasons, but the timing - coming in response to Southwestern Correctional's letter - leaves an impression that the company was able to influence state agency projections. I can understand why the reporter in Grayson County looked askance at the revised, higher estimates. There's something about the whole chain of events that doesn't quite pass the smell test.

MORE: From Texas Prison Bidness.

Truth in Sentencing Budgets: How the Lege boosts prison expenses without paying for it

At the Dallas News, Terrence Stutz provides that paper's biennial recounting of new criminal penalty increases passed by the Texas Legislature that go into effect tomorrow ("In Texas, penalties rise for senior fraud, graffiti, drive by shootings," Aug. 31). Writes Stutz,
In all, more than a dozen laws boosting the penalties for certain crimes will go on the books Tuesday.

Legislators raised the stakes even as they have tried to control the size and cost of Texas' prison system. Some critics question whether increased mandatory jail time for various offenses makes sense."
Here's a list compiled by Stutz of some of the new criminal penalty increases. This was actually a relatively light session as far as so-called "enhancements" - some sessions the Lege passes dozens of these things, but restraint in the Senate Criminal Justice Committee combined with the meltdown in the House in the final days kept the number of penalty hikes relatively small this time around. According to Shannon Edmonds from the Texas District and County Attorneys Association, writing in the comments, "By our count, the Legislature created at least 40 brand-new crimes and enhanced the penalties for at least 36 existing crimes." (Yikes!)

Yours truly was quoted arguing that past penalty hikes often haven't impacted the behaviors targeted. But several aspects of this issue come to mind that didn't make it into the story. First, in the big picture, the Legislature pretends increasing criminal penalties is a budget neutral act and so the practice of increasing criminal penalties adds prisoners to the system without adding to the state budget to pay for it.

For example, the article focuses on new legislation boosting penalties from a state-jail to a third-degree
felony for committing fraud against seniors. (Leave aside for the moment that the strategy may backfire to the extent those committing fraud are family members if seniors don't report crimes so their kids or relatives won't face harsh penalties.)

It's obvious on its face that increasing the penalty for an offense from up to two years to 2-10 will increase the overall amount of incarceration the state must ultimately pay for - at around $18K per inmate per year in current dollars. But the "fiscal note" for the bill, as is the case for every fiscal note for a penalty enhancement, says there will be no sigificant fiscal impact. That's simply a falsehood put out by the Legislative Budget Board, especially at a time when our prisons are at capacity and the state has not authorized new ones. But it's a politically convenient lie because it allows the Lege to pass criminal penalty increases without relatedly budgeting to pay for the extra costs.

That's the kind of irresponsible if politically expedient budgeting that got California's prison system in trouble by jacking up criminal penalties without simultaneously identifying revenue streams to pay for it.

Indeed, whenever you hear someone complain about "truth in sentencing," i.e., that offenders don't serve the full number of years they're sentenced, this budget phenomenon is the ultimate source of the problem: By lengthening penalties without paying for it, the Lege ensures offenders must be let out before the end of their sentence because there's not enough money available to lock them up. Over time, after the Lege has done this decade after decade regardless of which party is in power, the prison budget becomes wholly inadequate to pay for the number of people the laws say should be sent there.

It should also be mentioned that over the last several sessions, the House of Representatives (especially the Criminal Jurisprudence Committee) has been the biggest source of criminal penalty hikes and new crimes created in Texas statutes. Chairman John Whitmire of the Senate Criminal Justice Committee has been much less sanguine about such legislation, though he finds himself under great pressure in odd-numbered years to let at least a few of those bills pass. Without his strong stance, though, this problem would be much worse.

Finally, although increasing criminal penalties is a bipartisan pastime, it's worth pointing out that Democrats tend to carry more "enhancement" bills than Republicans, a situation that's been true since I've been following the issue at the Lege. My theory is that the Dems feel an extra need need to prove they're sufficiently "tuff on crime." But whatever the reason, that reliable pattern undermines the usual stereotypes about partisan politics and the justice system.

Given that one in 22 Texans is in prison, in jail, on probation or on parole - as many people as live in Washington, D.C. and more people than live in four US states - surely Texas' criminal penalties at this point are plenty high enough. Jacking them up further without paying the bill makes little sense and creates more problems than it solves.

See related Grits posts:

Saturday, August 29, 2009

North Carolina Supreme Court finds ex-felons have gun rights; Texas Constitution has stronger language, could it happen here?

Eugene Volokh at the Volokh Conspiracy and Doug Berman at Sentencing Law and Policy bring word of an opinion issued yesterday in Britt v. State (available here) by the North Carolina Supreme Court finding that some felons have a "right to bear arms." The case involved a man with a felony drug conviction from 1979 with a clean history thereafter.

The ruling was based on North Carolina's state constitution. While I'm not a lawyer, from the descriptions by these two law professors it sounds like North Carolina's constitutonal right to bear arms is actually less strong than ours in Texas'. According to the North Carolina opinion, their constitutional standard reads that:
“A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly’s police power, but that any regulation must be at least “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”.
So their standard reads much like the Second Amendment to the US Constitution, but the Tarheel Supreme Court was more fearless than Justice Scalia in noticing that there is no textual constitutional language limiting "shall not be infringed" to non-felons.

Given this ruling, I wonder if Texas might not prove fertile ground for pursuing ex-felons' gun rights? We've got more than a few pro-Second Amendment lower court judges, plus our constitutional standard is much more strongly stated as an individual right than the federal version or North Carolina's. Article 1, Sec. 23 declares, "RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."

So if North Carolina's state constitution conveys a right to bear arms for ex-felons, the plain language in Texas' Constitution seems even more favorable to such arguments. Our version more firmly grounds the right with the individual instead of the needs of a "well-regulated militia," and it expressly incorporates self-defense as a justification for the affirmative right to bear arms.

Of course, in Texas the question often isn't "what is the law?," but "who is the judge?". And over the last decade on the Texas Court of Criminal Appeals, the winds have not blown favorably on behalf of arguments for extending rights to offenders - even those from long ago. That's a strong argument for pessimism on the prosepects for extending gun rights to ex-felons, to be sure.

OTOH, it's remarkable to see North Carolina cross this philosophical Rubicon, and I can't help but notice that the plain language in our state constitution seems more receptive, even, to such arguments than theirs.

I'm glad Volokh and Berman are tracking this issue; it's definitely going to be one to watch playing out in the courts over the next several years.

Drug war runs on oceans of cash: A big fish swims free

I was amazed in 2007 when the Mexican police found more than $200 million in US currency linked to a drug cartel stacked up in the suburban Mexico City residece owned by a Chinese businessman living in New York, but I'm even more astonished to learn that American prosecutors don't want to pursue the case.

The cash was allegedly generated from selling raw materials to Mexican meth manufacturers, but the Dallas News speculated two years ago prosecution would be difficult because of the businessman's ties to high-level officials in the Mexican government.

Too often, it's hard not to feel like the big fish get off and the little fish get eaten when it comes to drug war prosecutions. In this case, it's possible the reasons have to do with some sort of official misconduct. AP reports that "In a hearing two months ago, the judge questioned whether the Justice Department has a pattern of mishandling evidence "

While the United States incarcerates hundreds of thousands of people on drug charges - tens of thousands in Texas - it's clear to me we're not really pursuing (at least successfully) the folks at the top of the food chain raking in the really big bucks from drug smuggling, as evidenced in this case.

How much are we talking about? In the big picture, $200 million was a drop in the bucket. I ran across some data this morning providing some big-picture estimates about the economic scope of the American black market in illicit drugs.

According to this source, cocaine sold in the United States has a 50-1 price markup compared to its origin countries, generating about $63 billion per year (American) in revenue for drug smugglers.

Amazingly, the market for drug enforcement is nearly as large as the market for drugs themselves. According to Harvard economist Jeffrey Miron estimated (pdf) last year that the United States spends $44.1 billion annually on drug enforcement at all levels - $30.3 billion of that is spent by state and local governments, he says, and another $13.8 billion by the feds.

By that count, Americans are spending more than $100 billion per year combined on drug demand and demand reduction. That's a massive sector of the economy dependent on the illegal drug trade. Of course, the folks making multi-billion dollar profits from drugs all live in the wealthiest neighborhoods like the one in Mexico City where they found all that cash. They don't usually get prosecuted, while the folks filling up prisons on drug charges typically come from poorest parts of town.

TDCJ dips into line staff raises for higher supervisor pay

There's little doubt the Texas Legislature primarily intended upcoming pay raises for Texas prison guards primarily for the rank and file. That was clear both before and during the time the Lege was in session. But now Mike Ward at the Statesman reports TDCJ is shifting that money around to give larger raises to supervisors ("Prison guards say pay raise not as much as promised," Aug. 29):
Four months ago, with the state budget feeling the pinch of a diving economy, Texas' 24,000 correctional officers cheered the news that the Legislature had given them a 3.5 percent pay raise, effective this fall.

By Friday, that thrill was fading: Prison officials acknowledged correctional officers will get slightly less — 3.35 percent — while their bosses will get more — for some, raises of more than 8 percent.

The difference in the size of the raises for correctional officers amounts to about $51 a year in most cases. But to some of Texas' prison employees, who are among the lowest paid in the United States, the change represents a broken promise — in a system where such things can sometimes turn into nettlesome problems for administrators.

Dozens of correctional officers are reportedly filing grievances on the issue.

"You talk about a morale buster — this is it," said Brian Olsen, executive director of a Huntsville union that represents about 5,000 correctional officers in Texas. "It's crazy to me that they'd take any percentage away from the officers, the lowest paid, so they can pay the supervisors more."
Maybe this is partly happening because TDCJ officials aren't feeling the same staffing pressure they were this time a year ago, when they first proposed 20% raises for the next biennium to the Legislature. When the session began in January, TDCJ was more than 3,000 guards short statewide, as it had been chronically for a number of years. But front-end hiring bonuses and a tanking economy combined (with somewhat surprising rapidity) to fill up a couple of thousand of those empty slots by mid-year.

Now, the agency likely doesn't see pay hikes as being quite so critical to solving an immediate understaffing crisis. Their priorities have changed since they asked for the money, in other words.

TDCJ says they're following a legislative mandate by shifting the raises to supervisors, while House Corrections Committee Chairman Jim McReynolds told Ward, ""For crying out loud, this was never the intent of the Legislature ... We said we wanted a 3.5 percent increase for each year, and that's what we meant ... To have supervisors getting a lot more like this was never on our radar screen."

I don't know who is correct on the legalities in this he-said/she-said situation. (MORE: According to a commenter, "
The State Auditors Office's changed the schedule B job classifications and salaries, which is contained in the budget [SB 1] and passed by the legislature. TDCJ, like other state agencies, can not pay less than the minimum on the new schedule, which increased the supervisors' pay.") Certainly McReynolds is right, though, that larger pay hikes for supervisors were never part of the public debate nor any presentation I'm aware of by TDCJ to the Lege.

Given the rotten economy and competing financial obligations, it's true as TDCJ spokeswoman Michelle Lyons said that prison staff were lucky to receive the raises they got. But it appears agency leaders will fritter away any morale benefits from the raises by this petty dipping into the line staff's pockets. From a symbolic perspective, this will be a
disappointing and frustrating outcome for workers, made more poignant because TDCJ administrators spent two years touting line staff's needs while begging for money at every turn up at the capitol.

Friday, August 28, 2009

"Just keep grinnin' - We're winnin'!": Prosecutors debate the drug war

Texas prosecutors on a comment string titled "Just keep grinnin' - We're winnnin'!" have been engaged in one of the more frank discussions I've seen among working law enforcement types about the efficacy of the war on drugs. The string was begun with just a couple of comments in 2004, but then updated recently (new comments bring a thread up to the top of their user system) when Mexico acted recently to decriminalize small amounts of drugs.

Unsurprisingly, some prosecutors see Mexico's actions as waving a "white flag"; one of them suggesting that "this is a poor tribute to the hundreds of Mexican police and army members who have lost their lives in the fight to save their country."

But I was more interested to read the earliest comment on the sting from a Tarrant County prosecutor writing five years ago who lamented:
Sometimes it happens this way: I'm scratching out a plea on a case or revocation of one more dope defendant and the fear takes me. We are losing the "war on drugs." More than a decade ago, my father, a former prosecutor himself, told me that my job was to identify the truly bad actors and quarantine them from their prey. As to the rest? Keep them dogies rollin'. I'm not smart enough to know how to handle the drug problem but I can recognize what doesn't work and this is it. We cannot fill our prisons with dopers and allow the predators to roam free. In my view we shouldn't fill the prisons with dopers. And the small voice whispers,"If we did win the war on drugs what would you do all day?"
Nobody but Colorado County's Ken Sparks took the bait back in 2004. He replied:
When space is a problem, we all want to fill our prisons with violent offenders and not dopers. We have a mandated probation and treatment program for state jail possession cases. When they do not participate faithfully in treatment programs, what do you do? Sanctions with jail time, etc. should be employed. When violations continue, what then? One solution is to build more prisons. Perhaps the real solution (more money, again) is to have drug courts in every county. But it appears that drug courts are turning judges into glorified probation officers. I don't know the answer.
The more recent responses to Mexico's decriminalization of small drug amounts in 2009 drew some fairly predictable themes. 156th Judicial District Attorney Martha Warner out of Beeville recounted the story of a man in his 20s who sexually assaulted and threatened young kids and also provided them with marijuana. Having established conclusively through this anecdote that marijuana use leads directly to child molestation, Warner pronounces, "
Drugs are very dangerous for our children!!!!!" Another commenter agreed, citing the case of a "rolling pharmacist" who it turned out had been "molesting his OWN daughter for the past 5-6 years."

An Assistant District Attorney out of Abilene pointed out the obvious fallacy in that reasoning: "
I think the pedophiles in the examples above would use alcohol or other substances to groom their victims, if drugs weren't available." She further suggests:
We clearly are not going to win the War on Drugs, although we've created a multi-billion dollar bureaucracy.

I'd like to see California decriminalize and tax marijuana, so we could watch and see what happens to their economy. I've heard and read that marijuana is their largest cash crop.

Obviously, some drugs are horrible, and European countries have tried to register and legally dispense those which are terribly addictive.

Good luck to all of you who are criminal prosecutors, and doing the best you can. ...

Also, if we had taxes from drug users, we might actually be making money back from some of those who cost us all so much and now contribute nothing. (Pretty bleak outlook.)
Other prosecutors rejected the prospect of legalizing marijuana or any other presently illegal drug, including the DA Association's lobbyist Shannon Edmonds who thinks that "Full decriminalization will never happen here, IMO, so it's a waste of time talking about its merits/faults."

Check out the whole string for more prosecutors debating the drug war. I thought it was an interesting discussion.

RELATED: Making 'Hamsterdam' an option.

Texting ban ignores road dangers that are more common, just as risky

Utterly predictably, the Austin City Council yesterday unanimously approved moving forward with the creation of a ban on texting while driving, but there were some interesting tidbits in this morning's news coverage. According to the Austin Statesman:

Council Member Bill Spelman asked whether the ban would apply to police officers, who have computers in their patrol cars.

Police Chief Art Acevedo said that the ban would most likely exempt officers but that he encourages officers to use the computers only while stopped at red lights.

Hmmmm ... so why not just "encourage" the public to only use texting at red lights, if the police chief thinks that's safe for officers? What's good for the goose is good for the gander. And what's wrong with looking at your Blackberry at a red light, anyway? Why not just enact the ban while the car is in motion?

Personally I see no more concern with the level of distraction caused by checking email at a red light than with people who drive while adjusting the radio station, typing an address into their GPS, eating breakfast behind the wheel, putting on makeup, disciplining children in the backseat, or any number of other distracting things people do in their car. Before this law becomes final, the City Council should seek to learn the relative risk of these other common behaviors for comparison or it makes little sense to just pick out texting for a ban.

Indeed, Chief Acevedo apparently touted quite a few unlikely positions at yesterday's meeting, including statistics he apparently pulled out of thin air. News8 Austin reports:

"The bottom line is we know that 70 percent of Americans when a law is passed, they voluntarily comply," Austin Police Chief Art Acevedo said. "That means that 70 percent of people who text now will stop a practice that we know is unsafe for them and those around us."

Acevedo also said so far this year, more than 30,000 accidents have been recorded in Austin and of those, 30 percent can be attributed to people not paying attention.

That's some stinky bullshit he's spreading around the city council's garden.

First, saying 30% of accidents stem from "people not paying attention" give us no information at all on how many were caused by texting on cell phones. They're passing a law without any data to even know the extent of the problem. Indeed, apparently police have no hard evidence it's a problem at all - it just happens to be the flavor of the month.

Also, I'd love to know where this stat comes from that 70% of people comply when a law is passed ... does that mean that predictably 30% of the public won't comply, and if not how effective or useful is it to pass a law? Should we really pass laws expecting 30% of the public to not comply? All that does is set up large portions of the public for ticketing and bleed them for more revenue.

Which leads to a concern raised by the ACLU's Debbie Russell that the city isn't planning to spend any public education money to support the ordinance. Apparently people will find out about it when cops start giving tickets for previously legal activity.

I view this approach as a failure of leadership and imagination - a mostly symbolic, revenue generating scheme that won't measurably improve public safety. Indeed, if the City Council really wanted to reduce accidents, they should be investing more to make roads safer. A commenter pointed out a recent study that found:

More than half of U.S. highway fatalities are related to deficient roadway conditions - a substantially more lethal factor than drunk driving, speeding or non-use of safety belts - according to a landmark study released [July 1]. Ten roadway-related crashes occur every minute (5.3 million a year) and also contribute to 38 percent of non-fatal injuries, the report found.

One of the authors of that study declared,

"Although behavioral factors are involved in most crashes, avoiding those crashes through driver improvement requires reaching millions of individuals and getting them to sustain best safety practices ...It is far more practical to make the roadway environment more forgiving and protective."

But of course, improving roads costs money while the texting ban is a moneymaker, so it's easy to see which one the City has incentive to prioritize.

Thursday, August 27, 2009

Corrupt Sheriff sentenced to five years for assisting drug traffickers

One of the Texas border Sheriffs who was receiving millions in grant funds from Governor Rick Perry's border security program was sentenced to more than half a decade in the federal hoosgow for conspiring with drug cartels to smuggle narcotics through his county. Reports AP:
A former Texas sheriff was sentenced to more than five years in federal prison Thursday for helping Mexican smugglers move drugs through his county on the U.S.-Mexico border in exchange for thousands of dollars in bribes.

U.S. District Judge Randy Crane sentenced former Starr County Sheriff Reymundo "Rey" Guerra to 64 months in prison and four years of supervised release. The sentence was less than the eight to 10 years recommended under federal sentencing guidelines, but Guerra admitted his guilt early and cooperated with authorities, Crane said.

FBI agents arrested Guerra at his office in October. Prosecutors termed Guerra a "minor participant" in a drug trafficking conspiracy busted by operation "Carlito's Weigh." Twenty-eight people have been indicted so far in the investigation stretching from South Texas to Houston and into Mexico.

Prosecutors say Guerra made it easier for people tied to the Gulf Cartel to move drugs into the United States and, at least once, intervened in one of his own department's investigations to try to throw deputies off. He pleaded guilty in May to conspiring to distribute narcotics.

That Guerra will never work in law enforcement again is comforting, but how many more officers are out there on the take is anybody's guess.

See related Grits posts

Proposed Austin texting ban ignores commuters, reality, to get more revenue

Austin's City Council today will consider whether to ban texting while driving as well as a new law requiring a 3 foot separation between drivers and pedestrians, cyclists or other road users, the Austin Statesman reported this week.

Councilmember Mike Martinez began floating the idea of a local texting ban last year but said he wanted to see how bills fared at the state Legislature first. More than a dozen bills addressing cell phone use while driving failed during this year's legislative session, he said. One that survived — prohibiting cell phone use in school zones — will take effect Sept. 1, but some cities are questioning whether they must enforce it. Austin plans to enforce it and install about 750 signs related to the school-zone ban — at an estimated cost of $80,000 — within a year, starting this fall.

Martinez said he's interested in enacting a ban on cell phone use while driving — an idea he suggested last year — but said the issue needs more debate. There is clearer data to show that texting while driving poses a danger, he said.

A report released last month by the Virginia Tech Transportation Institute and cited by Martinez found that when truck drivers texted, their collision risk was 23 times greater than when they weren't texting. The study, financed with $300,000 from the Federal Motor Carrier Safety Administration, involved outfitting the cabs of long-haul trucks with video cameras over 18 months.

The Austin Police Department does not have statistics on wrecks that might have been caused by text messaging, said Donald Baker, commander of the highway enforcement division. He said the ban could be tough to enforce. Officers would either have to catch a driver texting or rely on driver and witness accounts if a wreck occurred, he said.

"If someone was texting and they had the phone down low and nobody saw them, how do you know they are in violation? Human nature is that the driver isn't going to admit it to the officer," Baker said....

Martinez said he thinks that most drivers would comply and that having a law in place would make people more aware of the risks of texting. Mayor Leffingwell said it likely would take awhile for the public to get used to the ban, just as it took time for seat belt laws to gain public acceptance.

Part of me doesn't like this on principle: City Councilmembers are (or should be) lawmakers, not actuaries. You can’t ban through criminal law every behavior in life that creates a risk.

Also, regular readers know I'm highly skeptical of any public safety solution proposed because it will "make people more aware of the risks ." That's not the purpose of criminal law. If you want to send a message to the public, rent a billboard. Most of them aren't reading city ordinances in their spare time.

On the 3-foot buffer, I don't see why police don't already have plenty of authority to cite people for reckless driving if they swerve too near a cyclist or pedestrian - this is a solution pointlessly in search of a problem.

The texting while driving ban is a more interesting debate but my gut reactions incline me against it. For starters, it's basically unenforceable and runs counter to many people's routine life habits. As one Statesman commenter noted:
Until the city council can add more hours to the day or fix the traffic congestion problems, reading email on the phone will persist. When a commute to/from downtown takes 45 min - 1 hour thats productivity wasted unless the time can be reclaimed somehow. The most efficient use of time for some is to review emails for work on the way into work. Single parents (or other understandably over-busy persons) don’t necessarily have the time to do it later; multi-tasking is a way of life.
I agree and I don't think it's reasonable or even wise to ban that utilitarian behavior through criminal enforcement. Though I'm lucky enough to live close to downtown, I know a lot of Austin commuters who use their Blackberry that way, and it's not as though the city has provided adequate mass transit to give those folks other options.

Another Statesman commenter dubbed "Walksthroughthemud" identified some of the sources of my own skepticism about the proposed new ordinance:
In 1994, 5% of us had cell phones. Now 80% of us do and in that 15-year span guess what, traffic fatalities have gone...down (both in absolute terms and per miles driven, etc)! Yes, there a many other factors one must control for to analyze data like this but think about it - if DWT is so dangerous, how could it be possible that traffic fatalities have gone down dramatically while cell phone use has approached 100%? Well, here's one way - studies have shown that people that are talking on their cell phone while driving, drive slower and change lanes less often. Who knows, maybe DWT actually makes us drive safer??? Then there is the whole other issue of banning cell phone use while allowing other activities that are just as distracting like eating, applying make-up, reading (we've all seen it), swatting kids in the back seat, etc. Like many other laws in this country, this is nothing more that a do-gooder crusade that doesn't make any sense and politicians love.
Bingo! This drummed-up safety issue smacks of political grandstanding, mulcting more revenue from drivers in the name of public safety (much like red light cameras) without investing adequately in public transport or other needed solutions to traffic safety and congestion. I hope somebody with some common sense swats down this idea before it gets too far along.

Via Kuff.

At TDCJ, Wiccan is 'non-denominational'

Some readers may be interested in discussing the debate over an inmate in South Texas who sued claiming he's being denied the right to perform Wiccan religious services. Reported the Brownsville Herald:

Charles Roberts, 28, of Brownsville, alleges he has asked several times for religious books, pentagrams and a person to lead Wiccan services at the Texas Department of Criminal Justice’s Lopez Unit but has received no assistance from the prison’s chaplain. ...

Under current prison policy, there must be three inmates of the same faith in a given facility before employees will allow them to meet for worship services. An outside volunteer is also required to lead the sessions.

The department has established Catholic, Muslim, Jewish, Native American and non-denominational Christian services at all of their prisons. Wiccan volunteers also lead worship sessions at two TDCJ facilities outside of Houston, department spokesman Jason Clark said.

But Roberts – a Brownsville native incarcerated for a 2004 conviction on aggravated assault charges — claims that prison officials failed to even note his religion correctly on his inmate intake forms.

When he told him practiced Wicca – a neo-pagan, nature based religion — an intake officer classified him as "non-denominational," his lawsuit states.

"The fact that my religious preference is said to be non-denominational goes to show that nothing is being done," he wrote.

A number of Texas inmates from various faiths have challenged the prison’s religious policies on similar grounds over the past several years. In nearly every case, federal judges and appeals court justices have found that the department’s guidelines does not put undo restraints on inmates’ ability to practice their faith.

I don't find the policy particularly unreasonable that there must be three inmates of a given faith in a unit to justify holding a worship service, but if they offer Wiccan services at other units I don't see why TDCJ doesn't just offer to transfer the fellow to one of them. It sounds like the failure to provide books and other religious materials may stem from the simple misidentification of religious preference on the intake form.

I did get a little laugh out of the quaintly hilarious notion of TDCJ categorizing Wiccans as "non-denominational," not to mention the thought of the befuddled intake officer filling out religious preference on the form - "Uh, you said 'Wik-kun'? ... what is that, some kind of Mormon or something? ... None of the boxes on here start with 'w'."

Wednesday, August 26, 2009

Why so little angst over Mexican decriminalization of small drug amounts?

I wonder why Mexico's recent move to decriminalize small amounts of drugs, which passed with little controversy this summer, hasn't received the same howl of protest as when it was suggested a few years ago? Time magazine even suggests their new law "may set an example" for other nations.

Part of the change in American tone must certainly be attributed to a new US President, US Attorney General, drug czar, etc.. Also, Mexican President Felipe Calderon has earned many chits with the US for his aggressive attacks on drug cartels and even (some) corruption in his own administration. Maybe folks are cutting him more slack for that.

Or maybe with the body count piling up in Mexico (and the nation's pathetic prisons witnessing so many escapes they may as well install revolving doors), other priorities seem more important now than whether Mexicans can possess up to 5 grams of pot or a hit of LSD without facing criminal penalty.

Do those factors explain the American reaction or are there other reasons Mexico's decriminalization of low levels of drugs had been greeted in the United States with yawns instead of concerted disapprobation?

UPDATE: Via Drug War Rant, here's an explanation of the new law from the Tonight Show's Conan O'Brien:

New ABA ethics opinion requires more disclosure from prosecutors than constitutional obligations

Alexandra Natapoff at the Snitching Blog brings word of a recent but little-publicized American Bar Association opinion (pdf) defining the scope of prosecutors' ethical duty to disclose information favorable to the defense. As she describes it, the new rule:
is more demanding than constitutional Brady disclosure requirements; it covers all information favorable to the defense, not just evidence; it is up to the defense, not the prosecution, to evaluate the utility of the information; the government must disclose information as soon as is reasonably practical, and the defendant cannot waive these rights or absolve the prosecutor of her disclosure duties.
What's more, says Natapoff:
The ABA opinion not only reiterates the importance of prosecutorial disclosure generally, but explains that the prosecutor's ethical obligation to hand over favorable information is broader than her constitutional obligation. (emphasis added) In other words, even if the Constitution does not require disclosure, the prosecutor has an independent professional duty to disclose. While the violation of this duty will not invalidate a conviction, it could lead to professional discipline or firing.

Another interesting feature of the opinion is that prosecutorial supervisors must "establish procedures to ensure that the prosecutor responsible for making disclosure obtains evidence and information that must be disclosed." This includes keeping track of information in one case that might need to be disclosed by a different prosecutor in another case. In other words, prosecutor offices must have data collection and dissemination mechanisms by which their employees can comply with their ethical obligations. This position contrasts with the recent Supreme Court decision in Van de Kamp v. Goldstein this year, in which the Court held that prosecutorial supervisors could not be sued for failing to create data collection systems to provide informant-related impeachment material to defendants. While under Van de Kamp a chief prosecutor cannot be sued for the office’s lack of disclosure procedures, under the ABA opinion she could be disciplined.

In effect, the ABA has decided that the Supreme Court's decisions on prosecutorial disclosure are too weak, ethically speaking, and that prosecutors and their supervisors have far stronger professional obligations to disclose information to defendants, including information about government informants.

This seems like a pretty significant development, though I hadn's seen it reported previously. Neither Google News nor the Texas prosecutors' discussion board showed any mention of the topic that I could find, so Alaexandra apparently is your go to source. See the rest of her post for more highlights and analysis.

Perhaps relatedly, one wonders how this might apply to prosecutors disclosing "evidence" that they themselves had fabricated?

Did Judge Kevin Fine cross the line questioning a rape victim? Your answer may say a lot about you

I couldn't disagree more with Lisa Falkenberg's take on the much-ballyhooed instance of Harris County District Judge Kevin Fine ("After rapist convicted, judge grills the victim," Aug. 25), who Lisa criticized for asking questions about possible consent of a rape victim recently during the sentencing portion of a trial in which he would be required to set a penalty.

More interesting to me, though, is why Lisa and I disagree. She's a knowledgeable person and I generally find her work smart and credible (though I also know from personal experience that anyone who writes so often is bound to have a few off-key moments, and she has, too). But Lisa and I don't disagree because one of us is "wrong," we disagree because we have, or at least prioritize in this case, different values that we apply to the facts.

Just as interesting to observe was her article's comment section, which evidenced a strident clash of values and strongly held belief systems. The most widely recommended comment responded to someone who'd announced, "I think it's great that the judge had his concerns. Isn't that what justice is all about?" The response was "You are as despicable as the judge."

Lisa believes that questioning the victim about details of the crime amounts to the judge "re-victimiz[ing] the victim." She thinks the judge should "leave the defense to the defense" and sentence the offender without interrogating the source of any doubts he may have about the alleged crime or the jury verdict.

By contrast, having just left a gig as Policy Director of the Innocence Project of Texas, my first thought about the case was "Good, I've known way too many men wrongly convicted of rape who lost decades of their lives to false convictions. I'm glad the judge is making sure he gets it right."

These sharp differences in point of view about whether Judge Fine's questioning was appropriate reminded me immediately of an interesting academic piece I read recently (identified thanks to CrimProf blog) by Yale University law prof Dan Kahan on the topic of "Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases," which has been accepted for publication next year in the Pennsylvania Law Review.

I became aware of Dan's work a few years back after attending a talk he gave at UT-Austin on the subject of shaming punishments. One of the key elements of his theoretical approach is the concept of "cultural cognition," which is a high-falutin' way of describing the "influence of group values on individuals’ perceptions of facts." "Cultural cognition is a form of identity self-defense. It is threatening to be confronted with the claim that behavior revered in one’s community is detrimental to society and behavior detested within it benign or even beneficial." The theory aims to explain why, "even when [people] are exposed to the same sources of evidence—eye witness statements, expert opinions, even videotaped recordings of key events—individuals of diverse cultural values can hear and see very different things."

In this recent paper Kahan analyzes the demographics, values and ideology of public opinion in reaction to a well-known acquaintance rape case in a northeastern university setting, interviewing 1,500 people on the topic who all read a 16-paragraph summary of the facts from a court opinion. I called Dan because, though the allegations in Houston were of forcible rape (which the defendant claimed was consensual), the reactions to the Judge's questions struck me as similar to the dynamics identified in his paper.

Upon reading the story and comments, he agreed the reaction to the judge was a good example of his theory at play, noting that "people project into it because there are a couple of gaps caused by incomplete information. ... For starters, 'what happened?'" The story really didn't give much detail about either the specifics of the crime or what the judge said, he noted, leaving readers to fill in all the gaps with their imagination and personal perspsectives.

He also found it remarkable that "People have such strong opinions about why other people might disagree with them. We assimilate an incomplete picture and fill in details from prior experience," he said, "but then we're so confident that if people disagree with them they know what was their motive."

Some readers thought the case evidenced the predictable result of electing "liberal Democratic judges." One reader suggested the judge's questions demonstrated that, "The liberal, which most defense attorneys and many Democratic judges are, does not have any love for women or their rights." Someone else, presumably a liberal, by contrast, thought the Judge was biased as a "white male." Yet another replied that "I can't agree with [Lisa] on this one. Juries make mistakes all of the time. OJ was acquitted, remember?" All of these views are projections based on the commenters' personal history and experiences - they tell us more about the speaker than they illuminate the facts.

Kahan compared commenters' reactions to Barack Obama's press-conference statement on the Henry Louis Gates' story, suggesting that the President's initial comments drew on his personal history, perspective and values filling in gaps in a narrative that, in reality, he knew very little about.

Kahan acknowledged that even among Chronicle commenters, "There were some sensible reactions. That was heartening, actually. That judge didn't have much of a chance to give account for himself, of course, and he did give the guy 25 years." He said the judge should be "mindful of the contribution the jury makes," but "You want the judge to give the right punishment ... the system was not set up by accident that it gives a judge independent judgment on this issue."

His paper points out that the public doesn't even agree on the purpose of the law, much less how it should be applied in an individual case. Some may think the law should acknowledge cultural norms and accommodate them, while others see the law as a change agent to impose their values on others who don't share them, what Kahan refers to as "coerced norm reconstruction." Indeed, Kahan found that the exact wording of the law hardly matters when people decide whether they think someone was raped, while their cultural background matters a lot.

Contrary to those who blame Judge Fine's questioning on "liberalism," Kahan's research found that liberals and those with "egalitarian" values were more likely to empathize with victims in acquaintance rape cases where defendants claimed consent (though he emphasized general trends can never explain the decisions or actions of an individual judge). By contrast, those with more hierarchical values that emphasized traditional gender roles, particularly among older women, oddly enough, were more likely to side with the defense.

Kahan's paper also supplies an interesting background discussion of what he calls the "no means ...?" debate, contrasting norm-changing feminist advocates of a "no means no" interpretation of consent compared to scholarship on the concept of "token resistance" where women may resist sexual intimacy initially in circumstances where, sometimes, "no means yes." While the "standard [feminist] critique views the common law of rape ... as one means by which the state enforces male domination of women," he writes:
in the eyes of the those who subscribe to the conventionalist defense, it's the claim that common law reflects a “male point of view” that is ideologically motivated. The reality, according to the conventionalists, is that “no” does not always mean “no” in the minds of women either. Studies of college-aged women, they point out, show that a substantial proportion—some 40% overall, and over 60% of nonvirgins—report having engaged in “token resistance,” or saying “no” even though they “had every intention to and were willing to engage in sexual intercourse.” In one such study, “68.5% of the total sample reported saying no when they meant maybe."
Feminist reformers often see the purpose of the law as changing those norms, writes Kahan, while "conventionalists" think the law should accommodate how women behave in the real world. Somewhat anticlimactically, Kahan's article concluded that "beliefs about the significance of verbal resistance to sex are culturally polarized."

I'm not sure what if any point I have to make at the end of this rambling adumbration other than to express fascination with how iconic such debates quickly become and how they often reveal more about the debaters than they do the facts at hand.

Tuesday, August 25, 2009

Harris County to DOJ Jail Monitors: Buzz Off

This deserves a full read and more extensive commentary when I have time, but for now let me just post the link: Via email, I learn that Harris County Attorney Vince Ryan today sent a 454-page response including exhibits (large pdf) to U.S. Attorney General Eric Holder, bitterly disputing claims by the DOJ Civil Rights Division that large numbers of deaths, poor healthcare, inadequate mental health services and a pattern of violence in the county jail violate inmates' constitutional rights.

Just skimming though looking at the highlights, it appears they're going to fight tooth and nail to keep from doing a single thing differently at the Harris County Jail, essentially daring the DOJ to sue them in federal court. Who knows, maybe that's what happens next?

For more background, here's the DOJ findings letter Ryan was responding to and a prior Grits analysis of that document.

UPDATE: Here's the initial Houston Chronicle coverage. In related, untimely news, the Sheriff's Office is investigating the cause of yet another inmate death at the jail, which is the issue that first drew the feds' attention to H-Town.

: From KTRK, the county attorney "
admitted the jail at one time deserved a D-minus for a grade, but says it now deserves an A-plus." That seems a bit over the top given recent headlines about chronic overcrowding, excessive incarceration of the mentally ill, and a shortage of doctors at the jail.

USAA cancels insurance due to spousal incarceration

A reader sent me this account via email and I thought it was worth sharing (excerpted to protect the writer's identity):
I don't know if you are familiar with USAA. It was originally the United States Army Automobile Association. It is now both an insurance and banking operation that is headquartered in San Antonio. They serve primarily the military and military veterans. My father was a career Naval officer and 40 year member of USAA. His membership qualified me as a member. I've been a member of USAA for nearly 13 years. I have nearly $50,000 in various bank and investment accounts with them. I have two credit cards with them, I have a mortgage with them. I have a car loan. I have previously paid off a mortgage to them, and numerous car loans. (I have very good credit, I'm no risk to them). Anyways, you have be member to be insured by them, etc.

Last week, I logged on to my accounts and decided to update my profile and add my wife. Just added her as a family member (spouse). This caused USAA to contact me (electronically) about updating my auto policies (I have two cars insured with them). I replied that my wife didn't currently reside with me and that she didn't even have a driver's license so they I couldn't add her to my auto policies if I wanted to. USAA then replied that they needed to know why she didn't have a driver's license (was it suspended, revoked, etc.) This kind of irked me, but I went ahead and replied that, although it was none of their business, she was, in fact, currently incarcerated.

I received the following message from USAA this afternoon:

Dear Mr. [Name deleted],

We appreciate your honesty in the matter. USAA has made a business decision not to offer or continue any property and casualty products for individuals with criminal activity, a felony conviction, or previous incarceration. We are of the opinion that this is demonstrative of behavior and judgment characteristics that present an increased and unacceptable risk of loss insured under our policies.

We will review your Automobile and Homeowner's policies as they come up for renewal.

Thank you,
Jeff Tryk

I called USAA to inquire exactly what "We will review our Automobile and Homeowner's policies as they come up for renewal." meant. I was that it meant that USAA would not renew my policies. Even though my wife did not live with me, or that I had asked them for any coverage for her, because she was now a "member of my household," they now longer wanted my business. Mind you now, they have a lien on one car, and hold my mortgage. They'll finance me, but won't insure the very property they've financed.

Needless to say, I was livid. ...

Here is a case of not only punishing someone for their crime they've already served their time for, now they are punishing me for falling in love with her. How is anyone who has ever been in prison, Texas or anywhere else, supposed to succeed in this world with policies like this confronting them?

I understand that a company has the right to set their own policies and procedures. But these policies just perpetuate failure for parolees. ...

Basically I think this policy sucks. For me and for my wife and anyone else to have something like this happen to them.
That's a pretty low blow, especially for a company that services veterans and their families. More than a few vets later have scrapes with the law, the Washington Post reported recently. Once they've paid their debt to society, though, it's counterproductive to shun them from routine, productive commerce.

I try to pretty much stay away from the national healthcare debate but I agree with Barack Obama on one thing - you really can't trust an insurance company to do the right thing.

Shoddy forensics + jailhouse snitch = possible false conviction, execution in capital arson case

The Chicago Tribune reports that a consultant hired by the Texas Forensic Science Commission found the arson testimony that secured the conviction of Cameron Todd Willingham, who was later executed for a fire that killed his children, was shoddy and unscientific ("Cameron Todd Willingham: Expert says fire for which father was executed was not arson," Aug. 25). According to the Tribune:
In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.
The report concluded that the state fire marshall in the case:
had "limited understanding" of fire science. The fire marshal "seems to be wholly without any realistic understanding of fires and how fire injuries are created," he wrote.

The marshal's findings, he added, "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."

Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.

The only other evidence of significance against Willingham was another inmate who testified that Willingham had confessed to him. Jailhouse snitches are viewed with skepticism in the justice system, so much so that some jurisdictions have restrictions against their use.
Sloppy forensics plus a jailhouse snitch: That's a recipe for a false conviction if I ever heard one. There are many dozens or possibly hundreds of others currently sitting in Texas prisons who were convicted based on the same shoddy testimony by arson investigators as Willingham. The Innocence Project of Texas is presently reviewing old arson cases looking for possibly viable actual innocence claims, so these findings should bolster their efforts to secure official reconsideration of those convictions.

A cost-benefit nightmare: One crime solved per 1,000 surveillance cameras

I've argued many times before that surveillance cameras in public spaces provide little crime fighting bang for the buck, often citing Britain's example. Now out of the UK comes this news, via the BBC, showing how little crime fighting benefit that nation has seen from its massive investment in CCTV:
Only one crime was solved by each 1,000 CCTV cameras in London last year, a report into the city's surveillance network has claimed.

The internal police report found the million-plus cameras in London rarely help catch criminals.

In one month CCTV helped capture just eight out of 269 suspected robbers.

David Davis MP, the former shadow home secretary, said: "It should provoke a long overdue rethink on where the crime prevention budget is being spent."

The Metropolitan Police has been extraordinarily slow to act to deal with the ineffectiveness of CCTV

He added: "CCTV leads to massive expense and minimum effectiveness.

"It creates a huge intrusion on privacy, yet provides little or no improvement in security.
Austin, Dallas, Houston and other US cities investing in public video surveillance should take heed of this new report. Proponents of CCTV often admit that cameras don't reduce crime, but instead argue that they help solve them after the fact. But Britain's example shows that's not true, either. In that light, there's little sense in throwing good money after bad to follow the Brits' lead. In a tight budgetary environment, cities should shelve CCTV programs and shift resources toward priorities that measurably affect crime.

Monday, August 24, 2009

DPS spending millions on TDEX database while driver license lines lengthen

I'd mentioned over the weekend the Public Safety Commission's vote on Friday to revamp the Driver Responsibility surcharge to create amnesty and incentive programs. But a couple of other interesting items came up at the meeting that deserve Grits readers' attention.

Driver License Delays
For starters, apparently DPS' recent driver license reengineering project has spawned delays in processing times for getting a driver license by 39-61% at DL offices where it's been implemented. Renewals take 59% longer under the new approach, getting an original DL takes 39% longer, and getting a commercial license takes 122% more time compared to before the reengineering project. Those are awfully high numbers.

Exacerbating the problem, the Lege required DPS administer driving tests for everyone aged 18 and under this session, the Commission was told, but that will require 74 new examiners statewide at a cost of $2.9 million, and that money was not appropriated in the state budget. DPS will try to shift around money from other sources, but that shortage will exacerbate delays already occurring at licensing facilities.

Terminating Prevaricators
In other news, the new Executive Director Col. Steve McCraw announced he's preparing a new policy to terminate troopers for "prevarication" who lie on the job. He said once a trooper has been shown to be a liar, they'd be impeached in court if ever called to testify and it makes no sense to keep them on the team. Several Texas police departments have similar rules for their officers.

$33 million for TDEX
McCraw also used the commission meeting to promote spending $4.1 million in asset forfeiture funds on the TDEX databae - Texas' version of a Total Information Awareness intelligence system that's been one of the Governor's principle homeland security hobby horses. The $4.1 million makes up for a program shortfall experienced in the last biennium, said McCraw, who added that the Lege put up $12 million for the next biennium and the Governor's Criminal Justice Division would spend another $17 million in grants on the project for a total of $33 million over the next two years.

McCraw called TDEX a "great investment for our department," but Commissioner Carin Barth pointed out that spending money on TDEX meant the asset forfeiture money couldn't go for other priorities like Tasers and body armor. To this writer, $33 million seems like a lot of scratch for a database that's been highly controversial but which, to my knowledge, has never actually contributed to solving a criminal case.

By contrast, I'll bet $33 million would go a long way toward reducing delays at DPS' drivers license offices.

Harris jail building scheme an improper use of tax-increment financing

Voters rejected a new jail last year, but the Harris County Commissioners Court wants to shove one down their throat, anyway, reports the Houston Chronicle ("Deal on jail, stadium, Dome in homestretch," Aug. 24), using a tax-increment financing scheme:

The city of Houston and Harris County are negotiating a deal that could pave the way for construction of a new soccer stadium, a new jail and the redevelopment of the Astrodome, according to officials taking part in the talks.

The negotiations, which have been under way for several months and are reaching their final stage, focus on the use of tax increment reinvestment zones, or TIRZ, as vehicles for the major capital projects.

“We're in the home stretch,” said David Turkel, director of the county's community services department, who has played a key role in the talks. “I hope that we could get all of this done as one package before the end of the year, within the current administrations.”

Turkel said the concept is ideal for the county because it allows major expenditures on capital projects without using general funds or necessitating a tax increase to pay for the debt such projects would require. It also allows the county to sell bonds without voter approval.

The city's motivation in the discussions is to win two concessions: county participation in a TIRZ established to build a stadium for the Dynamo, Houston's Major League Soccer team, as well as a new detention facility that would be operated by the county and replace the city's two jails, which a court-appointed inspector recently said must be replaced soon because of poor conditions. A bond referendum to fund a similar facility that would have been run by Harris County was defeated by voters last year.

This seems like a pretty blatant misuse of the TIRZ statute, which was created to encourage private economic development, not to override the will of the voters in bond elections.

Indeed, it's hard to see how Harris County can justify using a TIRZ to build a jail. By law, the county must certify that projects built "will significantly enhance the value of all the taxable real property in the zone," but a jail won't increase property values. The only businesses lining up to move next door will be bail bondsmen and loan sharks. And if property values don't actually rise in the TIRZ, then city and county taxpayers must pick up the tab.

The soccer stadium and Dome revamp, though speculative, could increase property values. (As an aside, why are they pushing soccer? Why not build an arena for a sport that actually has fans in Houston, like boxing, mixed-martial arts and combat sports? Professional soccer in general has been an economic loser.) But jail building was never the purpose of tax-increment financing and is an inappropriate way to use that mechanism. I don't see how they could honestly make a finding in good faith that a jail would "significantly enhance" property values.

A TIRZ works by creating a special district with boundaries, then freezing tax revenue to the city, county, and school district within that area, using future "increment" increases in property values to make payment on development bonds. The mechanism assumes property values will go up, but that's not a good assumption when A) the housing market is experiencing a major bust and B) a new jail will cause property values around it to stagnate or decline, not increase. If values decline, there's no money to pay the bonds and taxpayers must pick up the tab.

I'm not a great fan of tax increment districts; I've both seen them work well when developments succeeded and watched the idea fail when developers go bust. At this stage in the process, the math depends entirely on how they draw the zone map and their projections of likely property value increases. But there's simply no way the plan works if property values in the district don't increase, and jail building will likely have the opposite effect on the tax base.

If Harris County needs a jail they should return to the voters and make their case, not sidestep voters' wishes with a shady, backroom deal that pretends jail building is "economic development."

Sunday, August 23, 2009

Needless pretrial detention main cause of Harris jail overcrowding

In the Houston Chronicle today, Lise Olsen has a story ("Thousands languish in crowded jail") focused on the overuse of pretrial detention for petty defendants. Here's how the story opens:

More than half of the 11,500 inmates crammed into the Harris County Jail have not yet been found guilty of a crime but await their day in court confined with convicted criminals in conditions that repeatedly flunk state and federal safety inspections.

The most common accusation against them: possession of a crack pipe or minuscule amount of drugs.

Though the U.S. Constitution guarantees the right to a speedy trial, at least 500 county inmates have been locked up for more than a year as they wait to be judged, according to an analysis of inmate data by the Houston Chronicle.

About 1,200 have been jailed six months or more though many face only minor felony charges, such as bouncing checks, credit card fraud, trespassing or even civil violations. In fact, around 200 inmates, theoretically innocent until proven guilty, appear to already have served more than the minimum sentence for the crime they allegedly committed, based on the newspaper's analysis of inmate data provided by the Harris County Sheriff's Office.

The article focuses in on an issue frequently highlighted here on Grits - Harris County judges' failure to make greater use of personal bonds:

Only a handful of accused felons — just 376 out of more than 38,000 cases last year — get released before trial based on their own pledge to appear when required, according to reports from the county's own Pretrial Services program. That's a tiny fraction of the 14,966 people who scored as low risk in pretrial interviews last year, one of the major factors judges consider in making bonding decisions. As a result, many people who can't afford to post bail simply stay in jail, including some accused only of misdemeanors. ...

In all, thousands of inmates accused of nonviolent crimes but not yet convicted remain packed into cells so crowded that many sleep on mattresses on the floor. Others are shipped to overflow cells that Harris County rents 387 miles away in Epps, La., at a cost of $9 million last year.

“That's one of the ... biggest travesties,” said Mark Hochglaube, a Houston attorney who has studied the problem as part of a county committee on indigent defense. Even a person who claims innocence, Hochglaube argues, when faced with the possibility of being locked up for months before getting to trial, will likely plead guilty because first offenders often can get out sooner if they don't fight.

Pretrial detention is exactly where the debate over Harris County jail overcrowding should be centered. I'm quite glad to see media coverage focused on the root causes of jail overcrowding instead of just stopgap measures to accommodate it.

See related Grits posts:

Proliferation of police agencies problematic

The Austin Statesman today published a piece titled "A proliferation of police agencies in Texas" describing problems created by the growing number of licensed peace officers at tiny, specialized agencies with little oversight. Here's how it begins:
The Texas State Board of Pharmacy, which licenses and disciplines pharmacists, has its own. So do the state Department of Insurance and the Board of Dental Examiners.

The Mackenzie Municipal Water Authority, which supplies water to four small Panhandle towns, has one, as does the Texas and Southwestern Cattle Raisers Association, a private trade group. Concordia University Texas recently acquired its own.

Every organization that might conceivably come into contact with a scofflaw, it seems, wants its own police department. And in Texas, many get to have them.

"The joke at the Capitol," said Tom Gaylor, who lobbies for the Texas Municipal Police Association, which has opposed the proliferation of policing agencies, "is that it's often easier to identify those who aren't police officers."

In recent years, the peace officer designation has spread far beyond its original constitutional definition of constables, sheriffs, marshals and police officers. Since 1965, legislators have amended the state's Code of Criminal Procedure, which sets out who can designate their own police department, nearly 50 times.

The result: Today there are three dozen types of agencies, institutions, boards, commissions and political subdivisions that can appoint their own law enforcement agents. The Texas Commission on Law Enforcement Officer Standards and Education, which licenses police officers, keeps tabs on 2,615 separate law enforcement agencies.
The whole piece is full of interesting examples and well worth a read. The author hits on several of the issues I touched on five years ago providing testimony to the Legislature on this topic. Here were the main concerns raised in that testimony:
The proliferation of special police forces threatens to undermine the credibility of law enforcement, especially at smaller agencies, and has caused accountability for police officers generally to decline. Here are the main problems caused by this explosion of specialized agencies:

1. Gypsy cops. Special forces create a problem with so-called "gypsy cops" where officers move from small agency to small agency, typically after misconduct or other problems that may indicate their unsuitability to wear a police uniform. Officers know if they misbehave and get fired they can just move on down the road. Tom Coleman, the undercover officer in the Tulia scandal, is the most famous example of a gypsy cop (which is law enforcement slang popularized by the Tulia case). Coleman's troubles at a prior agency came to a head in Tulia when a misdemeanor warrant was issued for his arrest while he was working undercover.

2. Resources: Smaller forces don't have sufficient resources for modern, high quality training or equipment for more specialized work involving special types of crimes.

3. Fragmentation: Having so many different agencies assures that information sharing will never be reliable, fragmenting potential for seamless intelligence gathering regarding criminal activity. After 9-11, the federal government changed its laws to allow federal agencies to share more information with law enforcement regarding terrorism, but this local fragmentation makes that goal unwieldy at best and unachievable at worst. Reporting, even for key statistics like arrests and prosecutions, is not consistent in Texas even among the 254 counties in the state, much less for the 2500+ separate little agencies around the state. The sheer number of distinct agencies makes monitoring compliance with reporting virtually impossible, which in turn means that this state does not have clear data upon which to base criminal justice policy.

4. Supervisor shortage: The pool of quality police supervisors in Texas simply is not deep enough to manage 2,540 different agencies. That means many of these special agencies are being led by managers who are frankly unqualified.

5. Qualifications not uniform: Having so many agencies means that a mind-boggling array of differing hiring, training and employment policies and practices from agency to agency muddy the public's ability to determine if an agency hires good officers or maintains high quality policies and practices in the department.

6. Equal protection: Non-civil service agencies in cities whose main police department is covered under the state civil service code can find themselves in a situation where different labor rules cover different law enforcement employees, even when they have the same employer. E.g., in Austin APD is covered under the civil service code, while the Parks police and Austin ISD police are not civil service agencies.

7. Too expensive: Having police in schools and parks is overkill, a more-expensive-than-necessary overreaction to security problems. Security guards equipped to call 911 if needed would be cheaper than commissioned Texas peace officers, and could handle virtually every situation that arises, especially in school scenarios. For parks police, police officers from the local PD could write necessary tickets.

8. Mission creep: In schools, officers presence has led to mission creep, where officers now teach DARE programs in schools as though they're a regular teacher. Studies show these programs are ineffective at preventing drug use, and using commissioned officers as teachers is much more expensive than paying teachers to handle the same classroom duties. Additionally, because they are so abundant police officers end up enforcing simple school rules that would be more appropriately handled by the principal.

9. Letting loose the dogs: Off-duty employment of officers is common, so even at the most marginal departments, officers will possess full-blown police powers 24-7, often exercised on Friday and Saturday night, for example, as bouncers at bars or in some other potentially problematic capacity. But it's likely that the level of supervision found at larger agencies, where some like Houston PD still have had problems, will be lower or non-existent at these tiny agencies no one pays attention to.
Today, according to the Statesman, Texas has 75 more departments than it did when I wrote that five years ago. But are there enough quality officers and supervisors to go around? And if not, is it really wise to issue a weapon and police powers without stringent oversight?

The issue of officer quality in these penny-ante departments was raised in dramatic fashion recently when one police officer with the Katy ISD police abducted another officer in the department and held her at gun point in an intense standoff with police last week before finally releasing her and committing suicide. That can't make parents in Katy confident that the school district is hiring quality officers.

Texas is a big place, but we don't need 2,615 law enforcement agencies by a longshot. I could see cutting that number in half without significantly harming public safety.