TYC Ombudsman indicted, resigns

If you'd predicted this when Governor Perry appointed Judge Catherine Evans TYC Ombudsman earlier this year, I'd have said you were nuts. See Mike Ward's coverage at the Austin Statesman.

Coming to grips with unscientific forensic practices

The Fort Worth Start Telegram yesterday published a lengthy, remarkable piece from Yamil Berard titled "Stakes are high as doubt is cast on forensic lab techniques." The article is one of the first published in the MSM in Texas to fully explore the implications of conclusions published earlier this year by the National Academies of Science (NAS) that many common forensic techniques had no scientific basis and their validity had never been tested - particularly comparative disciplines where individual technicians seek to match patterns in everything from fingerprints to tire tracks to ballistics to bite marks. Reports Berard:

The Texas Forensic Science Commission had planned this month to begin a series of discussions about a national report that opened a Pandora’s box of questions about crime lab techniques. The National Academy of Sciences — advisers to Congress and the president — reported that conclusions about bullet matching are opinion, not fact. Most other identification methods widely used by forensic scientists, the panel advised, also haven’t been validated.

How did a scientifically unproven method receive the blessing of the FBI and forensic "experts" across the nation and other crime lab methods become so widely accepted?

"In a nutshell, these people aren’t scientists," said Jay A. Siegel, a member of the academy, which was established by President Abraham Lincoln to advise the nation on far-reaching questions of science and technology. "They don’t know what validation is. They don’t know what it means to validate a test."

Bullet matching — a practice that takes place every day in Texas crime labs — isn’t reliable, Siegel said, and no studies have been conducted to prove the extent to which firearms marks are unique.

"It’s not possible to state with any scientific certainty that this bullet came from any weapon in the world," said Siegel, who is the chairman of the department of chemistry and chemical biology at Indiana University-Purdue University Indianapolis and director of the Forensic and Investigative Sciences Program.

Other identification methods — including tying hairs to suspects, guns to criminals and blood spatter to crime scenes — lack protocols and standards that legitimize such practices as "scientific."

Of the methods, only DNA analysis stands up to the test to match an individual to crime evidence, the scientists reported.

One of the Forensic Science Commissioners Gov. Perry recently declined to reappoint told the Startlegram that ""The NAS opened the [Pandora’s] box, and now we just need to face it." Everyone interested should read the whole piece.

Berard predicts that, if the Forensic Science Commission restarts its plans to sponsor discussions around the state about the implications of the NAS report, "criminalists and crime lab directors across Texas will likely blast the academy’s report, 'Strengthening Forensic Science in the U.S.: A Path Forward.'" I've not heard anyone "blast" the findings per se, but maybe that's coming. (A discussion of the NAS report appears on the first day's agenda of an upcoming conference in Fort Worth on "Current Trends in Forensic Science," so it's possible that might be a place where reservations are more frankly expressed.)

Relatedly, the Waco Tribune-Herald had a story yesterday on the current state of arson science and the impact of critiques of outdated forensics in the Todd Willingham case on the field of arson investigation ("Local fire investigators confident in arson training techniques and welcome scrutiny," Nov. 29) According to reporter Cindy Culp:

Critics of Texas’ fire investigation standards worry that some investigators may still cling to the old wives’ tales, however. They also express concern about investigators not being required to have a science background, saying it is needed to truly understand fire behavior.

In Texas, people can become fire investigators as long as they have a high school diploma, complete 150 hours of training and pass a certification exam. To investigate arsons, they also have to become certified as a peace officer, which generally involves going through a police academy.

Central Texas officials who conduct fire investigations say there may be truth to some of the criticism. But, by and large, investigators do a good job, they say. ...

[Killeen Fire Marshal James] Chism said the controversy over the Willingham case is a good chance for the profession to look at old investigations where questionable techniques may have been used. The industry also needs to seize the opportunity to weed out investigators who cling to outdated beliefs. It would be naive to think none exist, he said.

“Whether it is an old-school mentality or sheer laziness because it’s what they’ve always done, I still have to think those old wives’ tales are still getting play in the state of Texas,” Chism said.

In the end, Chism predicted, public confidence in fire investigations will increase.

Over the next five to ten years we're going to see an historic, first-of-its-kind evaluation of so-called forensic "science" disciplines that are really subjective, untested and in some cases inherently unscientific.

That's the real concern with John Bradley shutting down the Forensic Science Commission debate over the Todd Willingham case. As the Killeen fire marshal says, it would be naive to believe other investigators aren't still coming up with arson findings based on assumptions that aren't supported by science. But even more importantly, there are many other forensic disciplines that we now know are equally deserving of open, honest scrutiny. Unless Mr. Bradley does an unexpectedly bang-up job that assuages widespread concerns that he's engaged in a coverup, the main entity created by the state to spearhead such evaluations won't have the public confidence required to be seen as a neutral arbiter.

Related Grits posts:

• NAS Report: Many forensic disciplines prone to error
• Justice system commonly relies on shoddy forensic science
• USDOJ should embrace, not fight science-based forensics
• Shoddy forensic science ruins real people's lives
• Background materials on shoddy forensics
• Arson cases may be next venue for innocence claims
• Many arson convictions based on invalid science
• College developing screening processes to vet old arson cases for junk science

Mama Tried

Gary Scharrar had a feature over the weekend in the San Antonio Express News on Williamson County District Attorney John Bradley, his political siblings and their liberal mom who disagrees with much of their politics. The story opens:

Hard-nosed Texas prosecutor John “Marty” Bradley supports the death penalty. His mother, Shirley Bradley, remains a fervent opponent of it.

Her oldest son, John “David” Bradley, is an outspoken Republican leader among the social conservatives on the State Board of Education. His mom proudly keeps his campaign bumper sticker on her car — along with a bumper sticker promoting Democratic Party icon Hillary Clinton.

Not surprisingly, Shirley Bradley enforces a firm rule when the family gathers for holidays and other occasions: No talking politics or religion.

“It's my rule. ... Those are just forbidden subjects,” the Houston family matriarch says. “We all have heard each other's opinions enough. It was nonproductive. I want to have happy times with them. I respect their opinions. I don't agree with them, but I taught them to have opinions.”

And her two older sons certainly have strong opinions. Both are named John, although the oldest goes by David. Count him among the State Board of Education leaders who helped weaken the teaching of evolution in public school classrooms, pushed phone-tics and back-to-basics reading skills and led an effort to ditch a “fuzzy math” textbook for third-graders.

John Bradley, 50, known as “Marty” among family and friends, is 11 months younger than David. He has a law-and-order reputation as the district attorney in GOP-strong Williamson County just north of Austin. His profile recently was raised when Gov. Rick Perry, in a controversial move, named him the new chairman of the Texas Forensic Science Commission — replacing a chairman who had led the panel's investigation of disputed arson evidence in an execution case.

Go here for the full article. Interesting personal background on an already-controversial figure who Governor Perry recently thrust into the center of what's arguably Texas' most hot-button political imbroglio of 2009. I was unaware in particular of JB's brother on the State Board of Education and his role critiquing evolution theory in science books. Given that, it's particularly ironic for the governor to appoint his DA brother to chair a state commission evaluating forensic science.

There's a stereotype which grew out of the 1960s and '70s about young people rebelling against their parents' conservatism to embrace (in some cases) extremist liberalism, but apparently when your parents are more liberal, one rebels in the other direction. In honor of Mama Bradley, who sounds like a great lady even if I've occasionally butted heads with her son, here's a cool rendition of an old C&W tune that came to mind as I read this article - "Mama Tried," by Merle Haggard, who is accompanied in this 2004 version by Toby Keith and Willie Nelson:

House releases 'interim charges': What criminal justice topics on the agenda?

Speaker Joe Straus last week issued the "Interim Charges" for standing committees in the Texas House. Since the Texas Lege meets only 140 days every two years, in the interim committees study lingering problems or emerging issues with an eye toward developing legislation in the next session. So issues studied in interim charges tend to have a tad more momentum once session starts - particularly early in the session - than bills that weren't part of that process. The committees also hold oversight hearings during the interim that tend to generate a lot of information about the agencies under each committee's purview.

Here's the full list (pdf) of interim charges and below are the criminal-justice related issues among them I identified (duplicates deleted where committees have joint charges):

Appropriations:

10. Examine annual cost increases and the factors related to the increases for Correctional Managed Health Care. Recommend policy changes that could yield savings to the state.

14. Monitor and review the disbursement and use of border and homeland security funds. Evaluate the effectiveness in meeting the state's border and homeland security program goals and objectives. Joint Interim Charge with House Committee on Defense and Veterans' Affairs

Border and Intergovernmental Affairs

1. Evaluate the effectiveness of state operations at controlling drug-related crimes and other violence along the Texas-Mexico border. Joint Interim Charge with House Committee on Public Safety

Corrections

1. Examine implementation of the diversion pilot programs, juvenile case management system, and other policy and funding initiatives to determine whether the Texas Juvenile Probation Commission and the Texas Youth Commission have adhered to legislative directive in implementing these programs, and the impact of these programs on commitments at the Texas Youth Commission. Joint Interim Charge with House Committee on Appropriations

2. Study and evaluate the availability and efficiency of community-based corrections supervision and treatment programs and their impact on prison capacity and recidivism rates. Determine whether the supervision and treatment programs have been designed in accordance with evidence-based practices and whether adequate evaluation methods have been incorporated.

3. Study current re-entry programs and procedures across the juvenile and adult criminal justice continuum. Make recommendations to ensure that offenders who are released or discharged have the necessary supervision and access to employment, housing, treatment, and other support programs to allow successful entry and integration into the community. Evaluate the working relationship between state agencies facilitating re-entry and make recommendations on how to achieve greater efficiency and cost savings.

4. Examine policies and programs designed to identify, divert, and enhance the supervision and treatment of special needs offenders within local jails and state correctional facilities. Recommend changes to address appropriate alternatives to incarceration or institutionalization.

5. Review the range of services provided to females in the juvenile and adult criminal justice systems and recommend changes to ensure responsiveness to gender-specific issues. Review should include institutional and community supervision programs and utilization of correctional facilities that house nonadjudicated populations.

County Affairs

3. Study county oversight related to pretrial release on bond in criminal cases.

Criminal Jurisprudence

1. Examine the deferred adjudication system in Texas and recommend legislative changes.

2. Study how the state presently supports the establishment and maintenance of public defender offices.

3. Study the human and sex trafficking problem in Texas. Make recommendations on best practices in the areas of investigation, prosecution, and tracking of the victims of these crimes. Study whether victims of these crimes are allowed to adequately recover from their attackers in a civil cause of action. Joint Interim Charge with House Committee on Judiciary and Civil Jurisprudence

4. Monitor the implementation of SB 1940 (81R), which established veterans court programs in Texas, and examine the link between combat stress disorders of war veterans, including post-traumatic stress disorder and traumatic brain injury, and the onset of criminal behavior. Joint Interim Charge with House Committee on Defense and Veterans' Affairs

Public Safety

1. Study the recruitment and retention practices that the Department of Public Safety currently employs and make recommendations on how to make improvements. Specifically, examine the current officer shortage in Texas and the effect it is having on the state's public safety.

2. Investigate best practices to process concealed hand gun licenses in order to alleviate backlog and make recommendations for implementation, if appropriate.

3. Monitor the Driver Responsibility Program and consider methods for overall improvement of the program.

4. Study the statutory definition, duties, and authority of a Texas peace officer.

Several items here stand out. For starters, it's interesting to me that Appropriations will independently investigate prison health care costs. That indicates that, as state cost drivers go, prison health has made it fully onto state leaders' radar screens. Texas spends nearly $1 billion per biennium on prison health care, and costs are increasing largely as a function of long sentences and an aging prisoner population - inmates age 55 and older consume healthcare services at three times the rate of their younger counterparts.

One also notices that the Border and Intergovernmental Affairs Committee's top issue this go-round is evaluating state border security efforts, whereas last time the first item on their list was "Study the establishment of a citizen trade policy commission and an office of trade development." That's a notable shift in priorities.

The Corrections Committee's plate is full with many issues regularly covered on this blog. By contrast, aside from its charge to investigate deferred adjudication and the narrow issue of veterans courts, the Criminal Jurisprudence Committee's load seems relatively light, avoiding topics regarding overcriminalization and innocence-related issues that I'd have liked to see them take on.

A sleeper on the list may be the County Affairs charge on pretrial bonds. Increased pretrial detention rates are the main cause of county jail overcrowding in Texas and analyzing "county oversight" of the process is a sticky question because so many players are involved.

I'm also glad to see the Public Safety Committee take on the Driver Responsibility Surcharge. We've been waiting for months now for DPS to issue new rules governing the surcharge but nothing has come out yet in the Texas Register. (CORRECTION: An attentive commenter supplied the text of the new rule which was filed with the Secretary of State Nov. 23. More to come on this development.) And though the topic sounds dry, the issues surrounding definitions of a police officer potentially could make for a lively debate in Tommy Merritt's committee.

Finally, though not directly related to criminal justice, as a blogger I feel obligated to point out this odd charge for the General Investigating and Ethics Committee:

2. Review the definition of "political advertising" and determine whether the definition should be expanded to include content contained in blogs and other types of Internet communications.

I don't know what that's about but the discussion will bear watching.

Dallas fake-drug informant shows how 'cooperation' benefits can promote crime

The main informant involved in the Dallas fake-drug scandal, Enrique Martinez Alonso, served five years for his role collaborating with Dallas narcotics officers to set up two-dozen innocent people, then was deported in 2007. Now, reports Jason Trahan in the Dallas News ("Police informant in Dallas' fake-drug scandal faces prison time for counterfeiting," Nov. 29), he's been arrested again in the Dallas area on charges of distributing counterfeit money to undercover federal agents:

A crooked former Dallas police narcotics informant has moved from fake drugs to fake dollars.

In 2001, Enrique Martinez Alonso was among a group of Dallas police snitches who bought pool chalk in bulk, packaged it to look like cocaine and planted it on Hispanic immigrants who were then arrested by narcotics officers.

The scandal was among the most damaging in Dallas police history. It led to firings, demotions and jail time for one of the detectives involved. The city paid millions in settlements to wrongly accused Hispanic immigrants.

After serving about five years in custody for state and federal convictions, Alonso was deported in 2007. The next year, he was back in North Texas, selling fake cash to undercover federal agents.

Alonso has pleaded guilty to counterfeiting and immigration charges. U.S. District Judge Sam Lindsay could sentence him to 20 years during a hearing Monday.

"It's sad," said Dan Hagood, the special prosecutor who investigated the fake-drug scandal. "He had many opportunities to learn his lesson. And, frankly, his sentences in his earlier convictions were much less because of his cooperation with the federal government. Taking this second opportunity to commit more crimes of a similar nature is unfortunate."

Unfortunate, to say the least. Snitching kept this crook in business. He was allegedly paid more than $200,000 in informant fees as part of the fake-drug stings (though it's been speculated Alonso didn't receive all that money and Dallas police officers may have been skimming).

Dallas police tolerated Alonso's crimes, including involvement in the drug trade, while he set up 24 innocent people over period of many months. Then he received a sentence from the feds that was "much less" than federal sentencing guidelines in exchange for "cooperation." By contrast:

His brother, Daniel, who worked with him as an informant [in the fake-drug cases], received 20 years. In all, officials say, former Dallas narcotics Detective Mark Delapaz paid six crooked informants $440,000 in police funds for their fake drug tips.

Enrique was always portrayed by the media and officialdom as the main informant working with Delapaz (and the seven other officers who allegedly faked field tests claiming Alonso's drugs were real), so it's somewhat shocking to learn he received a sentence only 25% of his brother's. That's a steep discount for his second stint as an informant - this time against his co-conspirators and police "handlers." This fellow keeps being compensated for snitching on others - by Dallas police, by the feds - even when he appears to be at the center of the criminal activity in question. Indeed, who thinks that, if there's anybody available to roll on, Alonso won't again seek cooperation benefits in his current federal case, either now or once he's in prison?

Alexandra Natapoff has argued that snitching promotes crime, either because it's knowingly tolerated by authorities (in one notorious, recent instance Dallas Sheriff's deputies allowed an informant to help pull off an armed robbery without intervening) or by reducing sentences for criminals who inform. Mr. Alonso's case is a prime example. Counterfeiting is a major crime. It's not that easy to print fake money and he put together this scheme just two short years after his deportation. He seems to be a much bigger crook than anybody Dallas PD ever used him to target.

Statesman plugs "D.A. Confidential"

The Austin Statesman published a feature today on a new blog by a Travis County prosecutor, D.A. Confidential. According to courts reporter Steven Kreytak:

Mark Pryor said that friends, neighbors and fellow lawyers regularly ask him about his job as a felony prosecutor in Travis County.

And the former newspaper reporter, who hopes to soon be a published novelist, loves to write.

So Pryor began a blog last month called D.A. Confidential, which he hopes will give readers insight into the local criminal justice system and will be a fun place to read his take on stupid criminals, novel crimes, crime novels and related things.

"My original plan was to blog about the secrets that haunt the halls of the D.A.'s office ... but never leak from the airtight offices," Pryor wrote in his first post on Oct. 10. "But then I remembered how much I love my job."

Lawyers have blogged about their work for years. Among them are Jamie Spencer with his Austin Criminal Defense Lawyer blog and Keith Lauerman with Criminal Defense in Travis & Williamson County, Texas: Facts, Fictions, & Fairytales. But there are few blogs run by prosecutors and no prominent ones locally focusing primarily on criminal justice.

Be sure to read the rest of the story and check out DA Confidential. BTW, my apologies, Mark for not getting around to plugging your blog sooner. Keep it up; we don't have enough workaday prosecutors in the blogosphere.

Most Houston police suicides received no treatment

According to the Houston Chronicle (Nov. 28), 90% of HPD police officers who commit suicide had not previously received counseling, even though a psych unit was created at the department in 1979 after six officer committed suicide in two years. Four HPD officers have committed suicide in 2009.

The story reminded me of an excellent post from October at the Dallas News Crime Blog by Tanya Eiserer, who provided some broader context on law-enforcement suicides. She wrote:

Far more cops die every year from suicide than being killed in the line of duty.

Frankly, I was stunned by the figures I heard during a session on police suicide.

Roughly, 150 officers die in the line of duty each year. Meanwhile, police suicides number at least 250 every year.

Consider that suicides account for about 12 per 100,000 deaths in the general populations. Among white males, it was 18 deaths per 100,000. One study found suicides number about 22 deaths per 100,000 among cops. ...

About 89 percent of documented police suicides involve alcohol abuse

Those rates are well above the number of officers who die on the job every year from traffic accidents, shootings and other occupational hazards, adding to the dangers inherent in police work. Body armor won't protect the officer who puts a service revolver in his mouth and pulls the trigger.

For that matter, the rates of suicide among the general public, according to Eiserer's data, are more than double Texas' homicide rate. Yet how may public resources are spent on suicide prevention compared to all the criminal justice resources expended on murder?

Earlier this year, the Texas Senate Criminal Justice Committee issued recommendations for ways to reduce job-related police officer deaths. Regrettably, however, the issue of suicide was not much discussed. Given that police suicides are substantially more common than other types of job-related deaths, perhaps a starting point might be requiring agencies employing licensed peace officers to provide meaningful access to mental health treatment, either through the department or their health-care plan.

This is a topic that deserves more attention than it usually receives.

Colorado may reduce drug-possession sentences to lower costs; should Texas?

Colorado is considering reducing drug sentences as part of an effort to reduce prison costs, reports the Colorado Springs Gazette ("Prison Crowding: $700 million is too much; release nonviolent offenders early, panel says," Nov. 22):

Colorado prisons are overflowing with inmates, at a cost of nearly $700 million a year to taxpayers, in part due to mandatory sentences for nonviolent drug offenders, a panel of state lawmakers and sentence reform advocates said at a town hall meeting Saturday.

To ease the pressure on the state prison system, the 2010 General Assembly will be asked to pass a package of bills that would give judges discretion at sentencing to let some of those convicts out sooner.

The sentencing reform package also will include bills reducing penalties for possession of marijuana and other drugs. For example, possession of 4 ounces of marijuana would become a petty offense instead of a criminal misdemeanor. Possession of 8 to 16 ounces would be a misdemeanor under the bills, instead of a felony.

Similar reductions would apply to possession of small amounts of cocaine and methamphetamine and various prescription drugs, with the exception of “date-rape” drugs.

The package also will address DUI sentencing laws, perhaps raising penalties for habitual DUI convictions, said Christie Donner, executive director of the Colorado Criminal Justice Reform Coalition.

That's an encouraging sign and at some point in the future Texas, whose prison budget is four times that in Colorado, should follow suit and reconsidering sentence levels for small-time drug possession crimes.

What are the prospects for such reforms here? At the Texas Legislature, we've already seen initial moves toward these goals, but never with nearly so much momentum as they've apparently found in Colorado.

Reviewing recent Texas advocacy on drug sentencing, one is reminded that Republican District Judge Michael McSpadden out of Houston has for several years been calling for reducing low-level drug penalties, both as an issue of fairness and because too many petty cases are clogging up felony courts. Last year he convinced 15 other district judges from Houston - from both parties - to sign a letter supporting reduced drug sentences.

Legislative efforts to reduce criminal sentences in Texas have been greeted with caution, but not with entirely discouraging results. In 2003, facing deep budget cuts and declining sales-tax revenue, then-Chairman of House Corrections Ray Allen filed legislation to reduce penalties for less-than-a-gram possession offenses from a state jail felony to a misdemeanor. A compromise version of the bill ultimately passed which kept the crime as a felony but required judges to give probation to first-time offenders, a move which diverted thousands of people from the prison system and presaged more expansive probation reforms passed in 2007.

From there, I've often thought that the next, obvious incremental step would be to reduce less-than-a-gram possession charges to a Class A misdemeanor, at least on the first offense. After all, less-than-a-gram first-offenders now aren't going to prison anyway (and crime has only gone down since that became the law in 2003), plus the "felon" label creates negative collateral consequences that encourage instead of prevent recidivism. In Colorado, they're considering going even further than that, heeding Judge McSpadden's warning that all these cases should be treated less punitively.

Similarly, regarding marijuana penalties, few recall that in 2005 the House Criminal Jurisprudence Committee - then under the chairmanship of Republican state Rep. Terry Keel of Austin - unanimously voted for state Rep. Harold Dutton's bill to reduce penalties for possession of less than an ounce of marijuana from a Class B to a Class C misdemeanor - essentially a ticket-only offense - just as is being suggested (up to 4 oz) in Colorado. Even state Rep. Debbie Riddle - widely considered the most conservative member of the Texas House - voted for the legislation in committee. A lot of institutional players - sheriffs, cops, county officials - quietly approved of the bill behind the scenes because it would keep officers on the street for more important duties, reduce jail overcrowding, and limit local costs for providing indigent defense (which is required for B misdemeanors but not for Class C tickets). However, scarce few were willing to come forward publicly.

Though preliminary head counting showed the votes were likely there to pass the bill in the House, the legislation regrettably never received a floor vote. Though it couldn't be reliably confirmed, I was told that then-Speaker Tom Craddick quashed the bill in Calendars Committee, wanting to protect House members from having to take a difficult, potentially controversial vote. Still, there was no real opposition - literally no negative testimony at all in the committee hearing - except an intangible sense that the issue could become sort of third rail they might be attacked for during campaign season. I'm increasingly skeptical, however, whether such fears are really justified.

Given our history in Texas, I'm pleased Colorado will be considering quite similar if more ambitious proposals next spring. If they succeed (and if those who support reform survive their elections in the fall), perhaps they'll provide a template for reform that the Texas Lege could emulate. In light of inevitably declining budgets by the time the Lege meets again in 2011, Texas must plan now to enact policies during the 82nd legislative session that will safely reduce (or at least limit growth in) state spending on corrections. Targeted sentence reductions could be another important tool in the toolbox for reducing corrections costs if state leaders are willing to use it.

Via Thinking Outside the Cage.

NY Times sees new bipartisan consensus on criminal justice, ignores old one

A story by Adam Liptak published on the front page of the New York Times Tuesday has been getting a lot of attention: "Right and Left Join Forces on Criminal Justice." It described growing "signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained."

I'm glad to see the story, and have witnessed many signs of this seemingly unlikely coalition here in Texas over the past several legislative sessions, and even on national issues.

But I'd disagree somewhat with the premise of the article, which is that the left and right are only just now coming to agree on criminal justice. The reality is, for my entire adult lifetime there has been a standing, bipartisan consensus on criminal justice: In favor of expanding its scope and boosting police power. The traditional framing of supposed left-right divisions simply doesn't fit well with the realities of criminal justice politics.

This becomes clear working in the political process: In general, liberals who like big government are more willing to use criminal laws to solve social problems. Even among Democrats who dislike mass incarceration, very few spend an ounce of political capital to oppose creating new crimes or increasing criminal punishments. That's how Texas ended up adding 40 new crimes and increasing penalties for 36 more during the most recent legislative session, even though the House committee in charge of most of the bills (Criminal Jurisprudence) was controlled 8-3 by Democrats.

The majority of bills at the Texas Legislature increasing or creating criminal penalties are carried by Democrats, and it was Ann Richards who successfully won 100K new prison beds back in the '90s. At the national level, the biggest drug warriors in the Senate for 20 years have been Joe Biden, John Kerry and Tom Harkin. So this recurring characterization of conservatives as tuff-on-crime and liberals as "soft" ignores how such issues play out in the real world, where tuff-on-crime is a bipartisan consensus, not a culture-war style tug of war.

The "liberal-conservative" stereotypes on criminal justice mask significant diversity of views in both parties over support for mass incarceration. For the past generation, a plurality from both camps have joined together to beat down "fringe" elements of their respective parties by labeling them soft on crime and thus supposedly unfit to face a general electorate. That's why neither party will reliably support reform measures; a large number in both still hew to the "tuff-on-crime" consensus. Nearly all successful reform efforts on criminal justice piece together coalitions from discrete sub-factions in both parties that don't share that "tuff" consensus view.

On the Republican side of the aisle, too, there is much more diversity of opinion about criminal justice reform topics than the "tuff on crime" stereotype gives them credit for. There are three wings of the conservative movement with either ideological inclinations or near-term self interest in supporting certain aspects of criminal justice reform.

Libertarians are the easiest to identify, but they're also the smallest group and the least powerful. They're inherently suspicious of concentrated government power and critical of policies devaluing individual rights.

Less appreciated is the extent to which religious conservatives are frequently more willing, even, than many secular liberals to embrace notions of redemption and salvation for sinners. They're also more likely to listen to folks from prison ministries, chaplains and other religious voices who have direct contact with the system. Plus, they frequently come to the table with a notable and under-appreciated cynicism about government power. I can recall, after he was named Chairman of the House Corrections Committee by then-Speaker Tom Craddick, former state Rep. Ray Allen (a former campaign client, for the sake of full disclosure) once told me that his past included organizing anti-abortion protests at clinics where, when the cops showed up, they were usually there to protect the "abortionists" on the other side of the picket line. Given that somewhat confrontational history with law enforcement, it felt "a little weird," he once confided to me, being placed in charge of the state prison system. Allen went on to propose and pass legislation to divert first-time, less-than-a-gram drug offenders away from prison onto probation.

Probably the element that finally drew the New York Times' attention, though, has come in the arena of corporate conservatism, which has recently embraced narrow aspects of criminal justice reform in response to corporate prosecutions, prosecutorial misconduct, and the expansion of criminal law to rein in business excesses in lieu of traditional regulation (overcriminalization). Businesspeople don't like to be regulated, but it turns out they like being prosecuted even less.

This trend has been percolating in the states for a while and in places like Texas and Kansas, where seemingly unlikely reforms have come to pass, it was political coalitions built on these insights that allowed them to happen. I don't know whether that's replicable in D.C., where politics is more strictly pay-to-play. But there's a lot more potential for legitimate bipartisan consensus on criminal justice reform than on many other issues the nation faces.

'Chairman of Texas forensic science panel oversteps his authority'

The title of this post is the headline of a Fort Worth Star Telegram editorial today chastising Williamson County DA and Forensic Science Commission Chairman John Bradley for an array of recent moves aimed at clouding the commission's work in secrecy. Bradley wants to make meetings closed, records secret, and now he's telling other commission members to delete their emails and that only he may speak with the media. Opines the Startlegram:

What is it John Bradley doesn’t want the public to know about the work of the Texas Forensic Science Commission?

Gov. Rick Perry appointed Bradley, the Williamson County district attorney, to head the commission in September in a hasty shake-up of the panel’s membership that left lingering suspicions about the governor’s motives.

Bradley then proceeded to suggest in a public hearing that the commission might need to operate in secret on occasion. This Editorial Board cautioned against that idea on Nov. 14.

Now it sounds as though Bradley could be subtly trying to muzzle other panel members.

What he — and the governor — should realize is that this agency isn’t going to revert to obscurity, and trying to exercise dictatorial control over information is only going to draw negative attention and undermine public confidence.

This whole situation has the outward appearance of a pretty brazen coverup, whatever excuses Mr. Bradley publicly provides for his actions.

Data on TDCJ Unit Age and Cost

Yesterday I suggested that Texas should consider closing one or more of its older, more expensive-to-run prison units in the face of bleak budget estimates heading into the 2011 legislative session. I asked Michelle Lyons, the public information officer at TDCJ, for data referenced by Sen. John Whitmire on cost-per-unit at TDCJ, and she sent me a fabulous spreadsheet, which I've uploaded onto Google documents here. Take a look; there are a lot of interesting tidbits in the data.

Setting aside psychiatric, medical and drug treatment facilities, the range of cost-per-prisoner is still pretty striking, from $28.17 to $67.64. Of course, variations in programming will inevitably account for some of the differences in cost. (It should also be mentioned that cost figures are pretty dated - from 2005. But one supposes the relative costs among units are still generally valid.)

The oldest prison unit in Texas at Huntsville, according to the spreadsheet, was built in 1849, making it now 160 years old. (The spreadsheet says 158, letting us know it was likely created a couple of years ago.) The next round of prison building that contributed still-used buildings came in the 1880s - four units date from that era, along with another five from each of the first and second decades of the 1900s. After 1919, the next Texas prison still in use today didn't open until 1962.

Of those 15 older units, several have higher-than-average costs per prisoner, particularly smaller units in Gatesville and Richmond with costs per prisoner in the mid-$50s. Most of the units at the top end of the cost list (again, excluding medical units, etc.) have fewer than 1,000 inmates apiece, meaning their closure would reduce capacity only in small, manageable chunks. Thirty Texas prisons, according to this chart, house fewer than 1,000 prisoners; 13 units have fewer than 100 full-time employees at full capacity.

The chart also gives useful data about current unit-by-unit staffing levels, including the number of vacancies and the percentage of positions vacant at each unit. Despite recent staffing gains, a half-dozen TDCJ units have staffing levels below 70%. These are not older units but mostly rural ones, in Dalhart, Lamesa, Colorado City, and Tennesee Colony (where TDCJ's third-largest unit, Coffield, has 229 vacancies).

Another striking cost figure comes from the prison hospital in Galveston: $1,817.62 per day per prisoner (in 2005 dollars).

Interesting data, which may become fodder for additional, future posts.

Peeking in on the feds: Texas' Western District prosecutors less generous than Southern

I've been meaning to revisit some of the testimony from last week's US Sentencing Commission hearing here in Austin, and thought I'd point out some interesting data from federal probation chiefs here in Texas and some new (to me) data on federal prison overcrowding.

According to written testimony (pdf) from Texas Southern District Probation Chief Becky Burks submitted last week to the US Sentencing Commission, immigration cases make up the overwhelming portion of the district's court docket. She notes that "in FY 2008, the Probation Office completed 6574 presentence investigations and supervised 5470 offenders in the community." Of those, "relative to the primary offense of conviction, Immigration comprised 72.5% of the cases, with drugs coming in second at 18%, and firearms, 2.9%, and fraud, 2.2% virtually tied at a distant third."

Burks testimony also describes the burden put on federal probation departments for immigration cases, pointing out that "Supreme Court and 5th Circuit case law make these presentence investigations some of the most laborious to produce and the sentencings among the most complex."

For reasons that aren't clear to me, there's a wide variation between the two districts regarding how often prosecutors support downward variances from the federal sentencing guidelines. Wrote Burks:

As it pertains to sentencing practices, 57.7% of Texas Southern’s 2008 cases were sentenced within the guideline range. While this was not drastically different from the national rate of 59.4%, it was significantly below the 5th Circuit rate of 70.4%. This perhaps resulted from higher Government sponsored below range sentences, which accounted for 34.8% of the total below range sentences imposed. Non-government sponsored below range sentences totaled 6.5%.

By contrast, according to testimony to the commission (pdf) by Probation Chief Joe Sanchez, in Texas' Western District, 78.7% of cases were sentenced within guideline range, meaning defendants received fewer sentence reductions. The Western District also saw far fewer government-sponsored downward departures, mostly for defendants who provided "substantial assistance" to the prosecution (i.e., for snitching).

What accounts for the 21-point difference between the rates of cases in Texas' Southern and Western districts sentenced within guideline range? I don't know the answer, but it's a striking number, as is the difference between the 5th Circuit's rate of downward departures overall and the national average. Texans, and especially those in the Western District, simply aren't receiving downward departures as often as defendants elsewhere, for reasons at which I could hardly guess. (Perhaps some knowledgeable commenters can shed some light on the question.)

Also noteworthy was testimony (pdf) by federal Bureau of Prisons Director Harley Lappin related to seldom-discussed overcrowding at federal facilities:

Over the past 20 years, the federal inmate population has increased more than 200%, from just under 65,000 to more than 209,000. The number of federal prisons has increased from 64 to 115, and our staff number more than 36,000 today. Over the past few years, we have not been able to build enough new facilities to keep up with the increase in the federal inmate population; tight budgets have also meant that we have not been able to increase our staffing to the level necessary to keep pace with the population growth. This has led to a dramatic increase in the inmate-to-staff ratio in our institutions, and significant crowding.

Our facilities are as crowded today as they have ever been (37% above capacity) and our inmate-to-staff ratio has increased more than 40% over the past decade – today our ratio is nearly 50% higher than that reported by the five largest State Departments of Corrections.

We are forced to double bunk nearly all of our high security inmates, many of whom are aggressive and violent and have various anti-social tendencies, and we are triple bunking nearly half of the remaining inmate population. None of our facilities were designed for triple bunking. With the inmate population expected to continue to increase by 7,000 inmates each year, we do not anticipate a reduction in the level of crowding in the near future.

According to Lappin, "The high levels of crowding and reduced staffing levels have substantially impacted the Bureau’s capacity to provide recidivism-reducing programs." Lappin lamented that what he considers the feds' "most important reentry program," Federal Prison Industries, is "dwindling rather than expanding." It's interesting to hear prison industries, which have come under fire here in Texas, described as the "most important reentry program" by the feds. (That's not how it's viewed by Texas state legislators.!)

Besides FPI, federal inmates who participate in education programs, said Lappin, "are 16% less likely to recidivate as compared to their non-participating peers." He also emphasized that "maintaining family and community ties is very important to inmate reentry."

See other testimony to the US Sentencing Commission via links to written testimony under the names of participants on last week's agenda.

Avoiding the issues

A reader points out that the Houston Chronicle has an editorial this morning which appears to obliquely reference Grits' criticism of the proposed Harris County jail expansion (I assume I'm among the "judicial issue bloggers" to whom they're reacting, though they offered no reciprocal linkage). The Chron thinks building more jail space would be just fine and dandy, thank you very much. Check it out. I reacted thusly in the comments:

Funny, the story doesn't mention the main criticisms that will resonate with voters: That a) it will cost a quarter-billion [dollars], b) it would cause property tax hikes during a recession, or c) that the Sheriff can't staff current facilities without overtime and doubleshifts and couldn't staff the new facility.

That's okay, there's a full year before any election. I'm sure the Chron will get around to discussing costs and whether the the county can afford it sometime before then, right?

As 2011 budget crisis looms, should most expensive prison units be closed?

It's always good to recognize when it's time to leave, and given the economic headaches facing the state, I think I understand why Texas Senate Finance Chairman Steve Ogden decided this was a good time to call it quits and let somebody else drive the car over the cliff in the 82nd Legislature. According to an item at the Texas Tribune by former deputy comptroller Billy Hamilton:

The last five months are the worst string of sales tax months since the tax was enacted in 1961 and are much worse than during the 2002-03 recession when collections fell by “only” 1.1 percent in 2002 and 1.7 percent in 2003.

State revenue forecasters have noticed national conditions, and the state’s current budget assumptions were built on projections of weak sales tax growth in 2009 and 2010. Weak growth, but still growth. Unfortunately, the tax declined by 2.7 percent in fiscal 2009 (the state fiscal year ends in August), and it is down by better than 12 percent so far this year. Results like those are guaranteed to produce heartburn aplenty for revenue forecasters.

The rest of the tax system isn’t providing much reason for comfort. Motor vehicle sales tax collections were down 22.5 percent in October. Oil and natural gas taxes have been down all year, although state forecasters saw that one coming after the price spike in 2008. Hotel taxes are sagging. Motor fuel taxes are down. The newly reformed state business franchise tax has underperformed projections from the start. Only alcohol and cigarette taxes are up right now. Given the economy, it figures.

The revenue situation could pose real problems for budget writers in 2011 if there isn’t some improvement soon. The state will already be without the federal stimulus dollars that filled a lot of holes in the current budget. Deteriorating revenue conditions could add to what already promises to be a tough budget year.

We're not alone, of course. Tax revenues are down in 44 states. But Texas was cushioned from the blow this year thanks to high oil prices and federal stimulus money, neither of which can be counted on going forward.

One of many big concerns this raises in the criminal justice arena is that budget cuts might spur lawmakers to scale back recent expansions of community corrections infrastructure, cutting treatment funding and non-prison programming in response to shrinking budgets. However, those programs have been such a great success (and will only fully roll out next spring) that it would be a mistake to shut them down just as taxpayers begin to get a return on their investment. (Funding these efforts, somewhat ironically, is part of Sen. Ogden's legacy as Finance Committee Chairman.)

Instead, given current trends, perhaps it's time to ask if the state could save money by closing one or more of the 112 prison units it currently operates? Just this summer, the Texas Department of Criminal Justice (TDCJ) was able to eliminate contracts for 1,900 beds in four county jails because population loads had declined and they were no longer needed. It doesn't seem unreasonable to suggest that the state might achieve a similar reduction in the coming biennium, assuming all the new diversion tools available are fully utilized at the local level.

Though staffing shortages have improved, TDCJ is still more than 1,000 guards short systemwide, so such cuts could likely be achieved without eliminating existing jobs, and with the added benefit of improving staffing and safety in other units.

In past meetings of the Senate Criminal Justice Committee, Chairman John Whitmire has made reference to a list in his possession detailing cost-per-prisoner at each TDCJ unit, a number which apparently varies quite widely, especially on the high end. Given the looming 2011 budget gap - and the likelihood that some will propose cutting diversion programming when money gets tight - I hope during the interim that legislators and the agency seriously consider how many fewer inmates they'd need to close the top one or two most expensive units on the list.

In lean budget times, state leaders must set priorities, and it's important to know when it's time to walk away from a bad deal. From the taxpayer's perspsective, it's a bigger priority to build on recent diversion successes than to prop up TDCJ's most antiquated, expensive units.

RELATED: Data on TDCJ Unit Age and Cost

Arkansas turns to early parole after prison budget slashed

Because Texas legislators were proactive about preventing prison crowding on the front end, so far we haven't had to release prisoners all at once in crisis mode. But that's been happening in other states, most recently with our neighbor to the northeast.

According to this brief AP report, a new prison "was scheduled to open partially this year [in Arkansas], but those plans were aborted when $6.6 million was slashed from the prison system’s budget." As a consequence, "the Arkansas Board of Corrections has approved early parole hearings for 648 inmates in an effort to ease prison crowding."

Parsing Post-Conviction Writs

Via Stand Down, the Fall issue of the American Bar Association's Criminal Justice magazine features a series of articles on Postconviction Practices. Here's the table of contents:

Priming Postconviction Representation
By Andrew E. Taslitz
Issue editor for the symposium on postconviction practices, Prof. Andrew Taslitz, Howard University School of Law, here introduces the four major features with an overview of the topic and an explanation of how each feature helps nonspecialists—both defense and prosecution—understand and address the needs of this often-forgotten population within the criminal justice system.

Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings
By Eve Brensike Primus
The author, a law professor and former trial and appellate defender, compares state and federal postconviciton review procedures, then examines the obstacles that bar successful postconviction claims: limited availability of evidentiary hearings, loss of witnesses due to delays, and no constitutional right to counsel at postconviction hearings, among others. Four defense options offer what she terms “partial solutions.”

Postconviction Claims of Innocence
By Myrna S. Raeder
Explaining the options and obstacles facing those who make postconviction claims of innocence, the author, a professor at Southwestern University Law School, notes that appellate remedies exist to ensure a fair trial and not to “second-guess” juries. She addresses the relief available under the Innocence Protection Act and the limitations of DNA testing after the Osborne decision. She also looks at the role of crime victims, the ethical obligations of prosecutors, the definition of “new” evidence, statutes of limitations on relevant claims, and “freestanding” constitutional claims of innocence.

Gubernatorial Clemency Powers: Justice or Mercy?
By Kathleen “Cookie” Ridolfi and Seth Gordon
Is a governor’s power of clemency strictly an act of mercy or is it an extension and, at time, correction to the course of justice? In this article the authors examine the two opposite sides of the coin to see how clemency has been applied by different governors and the legal reasoning employed. They conclude that clemency has been underutilized as a correction that is supported by both the courts and the Constitution as a fail-safe for an imperfect justice system. Included is a graph summarizing the procedures in all 50 states.

From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings
By J. McGregor Smyth, Jr.
Collateral consequences are the invisible, often unintended, punishments that those caught in the criminal justice system face. Indeed, the individual need not even be convicted of a crime—a simple arrest can initiate the process. Loss of job, eviction, deportation, severance of student loans, and denial of child custody are the triggers, the author argues, that so often lead to recidivism. Smyth suggests means by which defense and prosecution can reduce these effects, restore rights, and allow individuals a chance to reintegrate into society—rather than reoffend.

Relatedly, Scott Greenfield at Simple Justice has a post on the tension between innocence claims and finality of convictions, analyzing proposed New York legislation allowing judges to ignore procedural barriers when there is evidence of actual innocence. (There's a good discussion in the comments of the wisdom of legislatively restricting postconviction writs that's worth reading as well.)

I lobbied this session on behalf of the Innocence Project of Texas for similarly themed legislation in Texas carried by Sen. John Whitmire (SB 1976) which would have allowed habeas writ filers to overcome procedural barriers in cases involving flawed or outdated forensic science. Like other key innocence legislation that cleared the Senate, the bill appeared to be sailing toward passage, but it died during the House meltdown over Voter ID. (The Harris County DA had been the main opponent through most of the process, but we reached a compromise over language as the bill awaited passage in the House.)

There are at least two categories of cases with bad forensics I can think of offhand where Whitmire's legislation would be a boon to justice: Older arson cases and people convicted based on scent lineup "testimony" by Deputy Keith Pikett's bloodhounds. We're talking about a significant but not infinite number of cases: Based on back-of-the-envelope calculations, there have been perhaps 5,000 Texas felony convictions in the last 20 years involving those two types of forensic evidence. Certainly not all those are innocent and most won't have colorable claims, but it's likely a non-negligible, larger-than-usual percentage of people convicted on such testimony are actually innocent.

Those old cases deserve closer vetting and unless the Attorney General or someone else steps forward to do so comprehensively, one-at-a-time habeas writs are the only way to do it. So I'm hopeful the Texas Lege in 2011 will revisit the issue of limiting habeas hurdles in cases with flawed forensics. Perhaps the postconviction reforms they come up with in New York, and discussions like these from the ABA, will help inform and clarify that debate.

'Did US law spur Mexican meth sales?'

Well, of course it did!

The title of this post is the headline to a Christian Science Monitor story (11/22) describing an outcome that was not only predictable but, at the time, predicted, at least on this blog. The article opens:

The goal was to curb production of methamphetamine by cutting off key ingredients. It worked: Domestic production of methamphetamine fell. But a blow to meth labs in the United States became, in turn, a boon to a group in Mexico.

La Familia started manufacturing meth a few years earlier in the western state of Michoacán. By 2006, the group had emerged as a major distributor.

No one claims that the emergence of La Familia was the direct result of the US law. But US production of meth has decreased dramatically since 2004, according to the National Drug Intelligence Center's National Methamphetamine Threat Asses­sment of 2008.

A global report from the United Nations Office on Drugs and Crime from 2008 also shows a 92 percent decline in the number of large-capacity labs in the US from 2001 to 2007. But in the same period, methamphetamine seized along the Mexican border dramatically increased. (There was a significant dip again in 2007, but seizure numbers are still higher than they were in 2001.)

Experts say that the expansion of meth networks operated by Mexican organizations is a major factor in the sustained meth supplies in the US today, even with new import restrictions on chemicals in Mexico.

Some are not surprised.

Count me among those unsurprised to learn that the gang La Familia Michoacana rose to power on a lucrative wave of meth smuggling thanks to restrictions on pseudoephedrine in the US market. Rather than focus on treating addicts, for some reason US policymakers thought it was a better idea to force them to buy their meth from gangsters instead of making it at home. Homemade meth was bad news, but rural meth cooks weren't beheading police officers or gunning down children as is happening now in Mexico. Sometimes better the devil you know.

I've been beating the drum about this unintended but painfully obvious outcome on this blog for years. Por ejemplo:

• Texas' anti-meth law shifted production to Mexico; prevention and treatment underfunded
• Redefining drug war success
• Stop digging: US policies enriching Mexican drug cartels
• Are we winning the war on sniffles?
• Mexican meth: 'I'm afraid what we did was create a monster'
• More on the war on sniffles
  
• War on sniffles worsens public safety
  
• Pseudoephedrine restrictions raise fears of 'more addiction, more overdoses and more violence'
  
• Oklahoma meth law not working
  
• Tradeoffs: Mexican cartels boost meth involvement
  
• Oklahoma meth law overhyped
  

New Harris County jail would cost nearly $10 million annually to staff

It's already staggering to think that a proposed expansion of the Harris County jail would cost $256 million, or just more than a quarter-billion dollars. But that's really only the beginning because the agency would also have to staff the jail over and above basic construction costs.

How much are we talking about? Let's break it down. Sheriff Adrian Garcia proposes building 2,193 additional jail beds, and the Texas Commission on Jail Standards requires the facility to be staffed at a minimum ratio of one guard for every 48 inmates.

The jail must be staffed 24-7, or 168 hours per week per guard slot. If each guard works 40 hour weeks, that requires 4.2 guards per jailer slot.

So, 2,193/48 = 45.6875 guard slots to cover that many inmates. Call it 46 since you can't have a fraction of a guard. Multiplying 46 by 4.2 (the number of employees required to fill a jailer's position 24-7), we get a minimum 193 additional deputies the department would be forced to hire to staff the proposed facility.

According to the HCSO website, a first year correctional officer in Harris County makes $40,643. Adding in benefits, training, outfitting and other support for entry-level jailers, let's estimate total costs per employee at $50,000. (I'm guessing that may be a conservative figure.) That would put the additional annual staffing costs for new jail beds at $9,650,000, as a ballpark estimate. If the Sheriff chose to partially staff the new unit with overtime, those costs would rise even higher.

That $9.65 million per year comes on top of annual bond payments for the new facility. What's more, that's without including funding for any new supervisors or civilian staff (who are used for a variety of functions throughout the system), not to mention all the related utilities and operating costs involved.

$256 million sounds like a lot of money, but it's just the beginning of the financial burden Harris County taxpayers must bear if Sheriff Garcia's jail proposal is approved.

Harris County Sheriff's response to Grits jail building critique

Reacting to this Grits post proposing alternative solutions to jail building in Harris County, the Sheriff's Public Affairs director, former Houston Chronicle reporter Alan Bernstein, left these comments in rebuttal:

So much misinformation!

The new Central Processing Center would not add 2,500 beds. It would add about half that, and reserve most of those for special facilities for females and mentally ill inmates. Its prime function would be booking and releasing for the county and for the city, which would pay the county to take over those functions. Inmates would be sent to existing beds faster, and would be released faster when their jail stay is over. A new front door is not a new bedroom, si?

The current processing center is overrun, cramped, outmoded – presenting an unsafe situation that no one wants. The new facility would never “build our way out” of a jail population problem. The sheriff, the county budget director and others involved acknowledge that by 2014, when this new facility would open, there will have to be new policies in place across the entire justice system to avert a continuing inmate population then. Fortunately, all of those things are already under discussion.

The sheriff is moving forward on multiple fronts. George Parnham, chairman of the sheriff’s mental health advisory committee, last month briefed Commissioners Court about plans for a Reintegration Center for the mentally ill, as an example. But we have to plan now to avoid a continuation of the problems we already have with an outmoded, too-small inmate processing center.

The sheriff has not rejected “cite-and-release” but wants to make sure it would make things better, not backfire, before seriously considering it.

The jail has no “immigrant detainees” other than those who would be there as non-immigrants dealing with criminal charges under state law. The county jail does not house inmates solely because they are facing immigration charges.

The public defender’s office, new bonding policies and other ideas, all of which are beyond the sheriff’s authority, are also being considered already.

What has changed since the “jail” (wrong title, to be fair) bond was rejected in 2007 besides there now being a new sheriff? For one, there is now a Criminal Justice Coordinating Council of 11 elected officials who are hashing out the ideas presented on this blog. Many of these officials are restless and eager to move forward.

Alan Bernstein
Director of Public Affairs
Harris County Sheriff’s Office

Since I've been accused of spreading "misinformation," let's run through these arguments, shall we?

First, I should acknowledge that I misstated the number of proposed beds to be built, which is 2,193, not 2,500; the latter was the number of bed proposed in the 2007 bond election and I mistakenly transposed the figures. Reports the Chronicle, "Garcia's plan would establish a new booking center that could hold 2,193 prisoners. It would have about 1,200 beds and capacity to hold another 1,000 people for the processing involved in being booked into or released from jail." My apologies for the error. However, 2,193 is not "half" of 2,500.

The Sheriff is engaging in a bit of sleight of hand to claim that a new booking center shouldn't be counted as increased "capacity." In reality, existing cell space is being used for those purposes right now. So unless they shut down those beds - as Travis County did when they recently added a new wing - beds previously used for central booking will now be available for other uses. Who believes they won't just fill them up?

I also find it incredible (for someone accusing others of spreading "misinformation") for Bernstein to claim that "The sheriff has not rejected 'cite-and-release.'” That's simply false. Garcia has been asked to implement it and declined. What's more, Bernstein admits the Sheriff is not "seriously considering" the idea. While many overcrowding solutions require action by other actors in the system - the DA, judges, the commissioners court - the cite-and-release policy for his deputies is totally under Garcia's control. If the Sheriff won't do all he can to reduce overcrowding pressures using the tools available to him, IMO it's unjustified to ask voters for a quarter-billion dollar band aid.

Equally odd was the claim that "The jail has no 'immigrant detainees' other than those who would be there as non-immigrants dealing with criminal charges under state law." That's a red herring. The Harris jail does not house federal immigration prisoners, it's true, but it's also the case that Garcia has chosen to continue a program begun during the 2008 campaign season by his predecessor to identify and flag offenders for federal immigration holds. As I wrote last year about this program, "The only point of the training is to detain more people, but the jail is full. Other than making some abstract political statement, the practical function of [such] new programs ... is to fill up the jail with defendants who otherwise pose little threat to public safety."

I'm certainly glad to receive reassurance that "The public defender’s office, new bonding policies and other ideas, all of which are beyond the sheriff’s authority, are also being considered already." However, some of these things have been "considered" for years. My point was that implementation of those ideas should be prioritized over building more jail space. First things first.

The most important parts of Bernstein's response, at the end of the day, were the things he did not say. He did not dispute that the Sheriff couldn't staff new jail space with existing deputies. The jail currently requires overtime and double shifts to cover the beds they run now. And he didn't dispute that the jail will be a budget-buster, requiring a significant property tax increase during the midst of a recession. Those are the reasons voters rejected a similar jail bond proposal in 2007, and unless the economy turns around unexpectedly, it's hard to imagine those sentiments changing next year.

Odds and Ends

Here are several items from around the state this week that I've not found time to blog on but which deserve Grits readers' attention:

• State Rep. Rafael Anchia says Texas' DNA exonerees collectively deserve to be named "Texan of the Year."

• John Bradley wants Texas Forensic Science Commission members to destroy all their email correspondence.

• The TYC girls' unit in Brownwood received high marks in an audit preparing the facility for accreditation.
  

• The Corpus Christi Caller Times documents rising jail costs and overcrowding pressures at the Nueces County jail.

• Diana Claitor has an article in the Texas Observer about a chaplain at the Cameron County jail banned for advocating on behalf of inmates.

• An inmate broke out of the Bexar County jail with a safety pin.

• In Houston a young man snuck a gun into juvie detention past a metal detector which may have been turned off since 2006.

• Kevin Krause at the Dallas News Crime Blog details who's on the heavy hitting legal teams on both sides of the fight over investigating two Dallas County constables accused of misconduct.

• The Fort Worth Star-Telegram praises a museum exhibit called CSI: The Experience for giving insight into real-world workings of modern forensic labs. Since most TV shows including CSI laughably misrepresent the real-world functioning and accuracy of modern forensic best practices, color me skeptical, though I'm still interested in seeing the exhibit.

• As drug cartels begin to target Mexican federales who participate in US training, the Washington Post describes an unprecedented level of official cooperation between the US and Mexico in the fight against drug trafficking.

Harris County should reject expensive new jails until officials use available tools to reduce overcrowding

Ignoring voters' 2007 rejection of a proposed jail expansion, Harris County Sheriff Adrian Garcia has proposed spending a quarter-billion dollars to build 2,500 2,193 more jail beds ("Harris County Sheriff renews call for new jail," Nov. 21).

Really, though, an expanded jail would cost much more than that because the Sheriff can't adequately staff all the facilities he has now (most guards pull double shifts more than once per week, the Houston Chronicle reported last year), and the Sheriff already spends tens of millions of dollars annually on overtime. There aren't enough deputies in Harris County to staff a new jail.

I've little doubt there will be a significant tax hike associated with any new jail bond proposal - the jail voters rejected in 2007 would have increased the portion of Harris County's budget dedicated to criminal justice from 16% to 25%. And if staffing costs were included, that number would probably be higher.

Despite overcrowding pressures, I still oppose new jail building in Harris County because local officials haven't done enough to pursue diversion initiatives and have rejected less expensive tools available to solve the problem. For that matter, Sheriff Garcia is even more obstinate than his GOP predecessor (Garcia is a Democrat) in insisting that only expanding capacity - not diverting offenders from the jail - is acceptable to him as a solution. As long as that's the case, jail expansion isn't a serious proposal: It's folly to believe Harris County can build its way out of the problem and if that's all that's on the table it's not worth it.

What else could Harris County do? The Sheriff can't fix the problem on his own, but with the help of other local officials are a number of options which have been spelled out plenty of times on this blog. Here are a few topline suggestions:

The Sheriff and Houston PD could use authority granted by the Legislature in 2007 to give citations instead of arresting for certain low-level, non-violent Class B misdemeanors. Garcia has refused to even consider this option for his own deputies.

Garcia could reconsider his enthusiasm for filling up the jail with immigration detainees who committed petty misdemeanor offenses.

Judges could stop thwarting the will of the Legislature by requiring county jail time for first offenders on less-than-a-gram drug charges. About 1,200 such inmates are currently incarcerated in Harris County up to six months as a "condition" of probation, though in most other counties such offenders wouldn't be jailed. They could also reduce probation rolls through early release of successful probationers, which over time reduces the pool of probationers available to be revoked.

Judges could reduce bail amounts or utilize more personal bonds for offenders with low flight risks.

The commissioners court could establish a public defenders office to reduce pretrial detention times.

The District Attorney could rescind her predecessor's policy of sending drug paraphernalia to crime labs in order to secure felony possession instead of misdemeanor paraphernalia charges. Other counties may pursue a paraphernalia charge when an offender is found with a crack pipe - in Harris those are treated as state jail felonies and contribute significantly to clogging the jail and court dockets.

The probation department could more aggressively use progressive sanctions to reduce probation revocations. (They've been moving in this direction, but more could be done.)

These opportunities to reduce jail overcrowding have all been ignored for years in Harris County. That's why voters should reject an expensive new jail until local officials make a good-faith attempt to reduce overcrowding by other means. When new construction is the only solution offered for jail overcrowding, that's really no solution at all.

Jennifer Skeem on Sentencing and Mental Health

Yesterday morning I heard a provocative and informative talk at the Texas Judicial Advisory Council's biennial sentencing conference from Dr. Jennifer Skeem, who is a member of the MacArthur Research Network on Mandated Community Treatment, and Centers for Psychology and Law and Evidence-Based Corrections, on the subject of "Mental Health and Sentencing." Here are some of the highlights from her comments. (All statistics were sourced in her presentation.)

Skeem's big picture thesis: For most mentally ill offenders, especially repeaters, treatment and medication alone usually isn't enough to stop recidivism. Instead, research shows that people with severe mental illness tend to have more criminogenic (crime-causing) risk factors - bad neighborhoods, destructive peer groups, antisocial personality or cognition, etc. - and those correlate much more strongly to recidivism than does mental illness.

Generally stating the problem, said Skeem, people with mental illness are significantly overrepresented in the system. Rates of mental illness among offenders are 3 times the average for men, twice the average for women (who have higher rates generally). Overall, 14% of male defendants and 30% of women have suffer from severe mental illness, she said, and 72% of those have a co-occurring substance abuse disorder. Most are supervised in the community on probation and they often "fail." People with severe mental illness are twice as likely to have their probation revoked for technical violations, she said.

In most jurisdictions (73% according to a national survey), sentencing of mentally ill offenders by judges is usually "non-specific," often amounting to checking an additional box on a form - usually labeled "mental health" - that would then authorize whatever treatment package the prison or probation department wants to apply.

There is an "implicit" model in current sentencing practices regarding the mentally ill that Skeem believes is misdirected. Mental illness is seen as the root of offender criminality, so the offender is sentenced to treatment. Once their symptoms are reduced, by this logic, supposedly criminality will decline.

In practice, she said, increased mental-health services often do not result in fewer arrests or recidivism gains, even if they successfully reduce symptoms in the patient. Improved symptoms and functioning typically don't reduce crime, she said (with the notable exception of those whose offenses involve domestic violence). Even "Cadillac" mental health treatment programs don't translate into improved public safety outcomes.

That's because only about one in ten offenses by people with severe mental illness result directly from their mental health condition, she said, citing what she described as "elegant" cutting-edge research. Substance abuse is statistically a bigger contributing factor, but even it doesn't fully explain the data. The real problem, said Skeem, is that mentally ill offenders tend to have more overall risk factors than their counterparts. She emphasized that this insight should not be used as an excuse to avoid treating mental illness and that offenders who needed it should absolutely receive treatment. But mental health treatment shouldn't be seen as a primary way of changing offender behavior, which most frequently stems from other causes.

Skeem encouraged judges not to treat mental illness as some sort of "master status," but instead to target "criminogenic needs" just like the evidence-based practices models designed for regular probation caseloads. In the Q&A afterward, I asked what that position implied for mental health courts and specialized probation caseloads focused on the mentally ill. But Skeem declined to criticize such programs, saying they were important but that their focus should shift.

Indeed, Skeem said that where specialty mental health programming by courts and probation departments had been successful, it was primarily because they're more likely to studiously apply evidence-based practices and problem solving approaches than in regular probation.

In particular, she said, use of "authoritarian" approaches by probation officers tend to produce worse outcomes for all probationers, but particularly those with severe mental illness. Use of threats and punishments by POs measurably affect whether outcomes improve, she said. Negative pressure on probationers predicts failure. So in some instances specialized caseloads have demonstrated success not because they treat mental health needs but because they're more likely to adopt these evidence-based probation approaches.

Skeem said that "stigma" associated with mental illness along with "paternalism" by those in the system led to worse outcomes for probationers with mental illness. Though the public views the mentally ill as scary people, statistically they're no more likely to be arrested than the rest of us, she said. However, once on probation, people with mental illness are much more likely to be revoked on technical violations. Surveys of probation officers show some don't like having the mentally ill on their caseloads and may revoke them or seek to shift them to other programs so they won't have to deal with them.

From the standpoint of reducing crime, the best approach for probationers with mental illness, she said, is to focus on screening and assessment aimed at identifying criminogenic factors generally, then using those specific assessments to inform sentencing, tailoring which evidence-based practices are used based on individual circumstances.

For probation officers, said Skeem, offender visits should become less about "monitoring" and more about discussion of criminogenic needs and risk mitigation. Research by Jim Bonta has shown that just as negative pressure predicts failure, time spent on problem solving and navigating criminogenic factors "correlates powerfully" with reducing recidivism.

If accurate - and Judge David Crain who runs Travis County's mental health court told me most of the presentation jibed with his experience - Skeem's insight about the causes of crime among mentally ill offenders suggest helpful ways to reduce crime overall. "What works" for the mentally ill appears to be pretty much what works with regular probationers, it's just that probation departments don't regularly apply evidence-based practices outside of these specialty caseloads. If those techniques were implemented more widely, it follows, the approach should reduce recidivism among both groups.

RELATED: Go here for links to Skeem's research.

US Sentencing Commission hears testimony on alternatives to incarceration, reentry

Yesterday morning I attended a portion of the regional hearing in Austin of the US Sentencing Commission, in particular a panel on "Alternatives to Incarceration, Reentry, and Community Impact."

Dallas District Attorney Craig Watkins was one of the panelists, and his comments were featured in coverage by the Associated Press. He opened by declaring that traditional crime fighting reacted to the offender but in the future should be proactive to prevent crime. Most prisoners are uneducated, unskilled and may have drug abuse issues, he said, so the public tends to have little sympathy for them. Yet the chances of improving public safety are greater, he said, if such folks can be raised up from their degraded circumstances and encouraged to change their lives - something that's not always encouraged by greater punishment.

Watkins described a program in his office for offenders aged 17-25 who commit "youthful indiscretions" in which they use "memo agreements" to dispose of misdemeanor charges without taking the case to court. He said this both saves the county money and reduces collateral consequences to the offender and community from a criminal conviction. Those who can't or won't be rehabilitated, he said, were identified in his office as "impact offenders" - folks who may have committed repeated low-level offenses, and he uses all the enhancement tools available to boost penalties higher and maximize their sentences.

Diana Dinitto of the UT School of Social Work told the Commission that US law improperly conflated drug use with drug crime. She said that most people in prison who need treatment don't get it, and that providing treatment while incarcerated creates additional barriers to success - particularly overcoming the troublesome transition period during reentry after leaving prison. She urged greater use of community-based treatments to avoid that transition period, and greater focus of supervision and treatment resources to ensuring "continuity of care" so offenders can maximize "sequential gains" accumulated during treatment.

Another major barrier to reentry, she said, is "discrimination" against people who commit drug crimes, particularly banning ex-offenders from receiving financial aid for college or participating in federal assistance programs. She pointed out that drug crimes are the only offenses that trigger the ban on college assistance, and said at a minimum students should only lose aid if the offense is committed while they're receiving it. She also complained that health insurance plans tend not to provide adequate coverage for substance abuse and mental health treatment.

Adam Gelb of the Pew Center on the States gave an excellent presentation that featured Texas' recent reforms as a prime example. See the detailed written materials he gave to the Commission here (pdf). The charts and graphs he presented make a strong case that mass incarceration is at best disassociated with recent crime reductions, since states that reduced incarceration have lowered crime as much or more than states with higher incarceration rates, getting a greater return on investment for criminal justice dollars.

One of the Commission members was particularly interested in Texas' legislation (see p. 13 of the presentation), but Gelb unfortunately gave a slightly incomplete depiction, telling the Commission there wasn't legislation per se but that the expansion of community corrections and treatment capacity was primarily done through the budget. That's not precisely accurate.

There actually was an accompanying bill in 2007 (several, really, but one main one) that included policy changes along with the new resources. The biggest change was to reduce probation lengths from 10 to 5 years for a wide range of nonviolent offenses from third degree felonies down, and to give offenders a chance to earn early release from probation through good behavior (at the judge's discretion) at either two years or half their probation term, whichever is later. In addition, the state used fiscal incentives to encourage local probation departments to implement progressive sanctions instead of revoking offenders to prison for low-level violations of their supervision conditions. Those changes combined to help reduce expanding probation rolls and hence the number of probation revocations.

Gelb said Texas' example showed that it isn't just the recent economic downturn causing states to reevaluate corrections policy, since Texas made our changes before the recent Wall Street collapse. That's true to an extent, but Texas definitely made those changes out of a desire to save money and avoid raising taxes, which would have been necessary if we'd built new prisons. That's the angle that got Republican leaders like Tom Craddick and Steve Ogden on board.

The fourth panelist, St. Louis University law prof Eric Miller, discussed the use of drug courts or "offender supervision courts," to use his phrase, arguing that in many cases drug courts are a "well meaning but flawed exit strategy" to keep offenders out of prison. They tend to have a "net widening" effect, he said, because they're too open ended and channel offenders into the system instead of away from it. He thinks judges should play a less active and more "managerial" role in drug courts.

Miller also made an excellent point that accountability is a "two-way street." He said if the offender must take responsibility for their actions, so should the government take responsibility for the harm caused by collateral consequences.

One commissioner suggested the testimony of the panelists meant that the idea of "expanding community correctional centers" in every jurisdiction was a "no brainer." I don't know much about federal community correctional centers, but this memo from the Bureau of Prisons describes them as "facilities in which offenders are free to leave the institution during approved hours for the purpose of participating in employment and other community programming activities." Sounds like a federal version of work-release.

There was also discussion of whether spending too much time - more than 3-4 months - in a halfway house upon leaving prison might be "counterproductive," which is the stance, commissioners said, taken by the head of the Bureau of Prisons. Nobody on the panel had an opinion on that question, but I'd be interested in learning more about the debate and the BOP's reasoning behind that stance.

After this panel I gave Mr. Watkins a ride to the airport then headed out to the state Judicial Advisory Council's biennial sentencing conference, some of which I'll be writing up this weekend. But the Sentencing Commission heard much more and written testimony from presenters who submitted it is available here, linked under the name of the presenter.

Out for the morning: Sentencing coverage to come

This morning I'm headed up to the UT Law School to hear a couple of panels presenting to the US Sentencing Commission, then after lunch out to a Sentencing Conference held biennially for judges, prosecutors and probation officials by TDCJ's Community Justice Assistance Division. (See their agenda [pdf].) These continue tomorrow, so I should have coverage for you from parts of both events in the next few days.

Use this post as an open thread to talk about state and federal sentencing issues or whatever other criminal justice topics are on your mind until I find time to get back on the blog.

Should prosectuors, public defenders, cops be required to 'resign to run'?

Should county employees be required to resign before they run for public office? Dallas District Attorney Craig Watkins initiated the debate by implementing a resign-to-run policy in his office six months ago, reports Kevin Krause at the Dallas News ("Dallas County public defender's proposed 'resign to run' policy has judicial candidates in office crying foul," Nov. 19):

to eliminate influence peddling at the Frank Crowley criminal courthouse downtown.

Watkins said that before he was DA, he remembers seeing defense attorneys negotiating plea deals with prosecutors who were judge candidates and then handing them envelopes with campaign contributions.

"For our system to work better overall, it's a policy that needs to be in place throughout the court system," Watkins said.

That makes a lot of sense for a District Attorney's office, but it's not every job where negotiating on behalf of the state is part of the employment description. I'm not sure the same strictures need apply to public defenders, who hold no similar leverage with which to extract contributions.

There's a risk that a countywide "resign to run" policy could really just be cover for an incumbent protection plan, since some of the most qualified people to lead the system at any given time may already be working in it. For example, "Sheriff Lupe Valdez said she would support a resign-to-run policy for her department," reported Krause. "In 2008, one of her deputies ran against her." I don't see any similar conflict for Sheriff's deputies running for office as I do assistant district attorneys. Indeed, where are we going to find law enforcement leaders to elect if they must leave law enforcement to run for Sheriff?

Incumbent protection - not preventing conflicts of interest - is why the public defender office is considering the change:

A key reason to enact a resign-to-run policy, [chief public defender Lynn] Richardson said, is to keep incumbent judges happy.

She said at least one judge has indicated that she will not use any public defenders in her courtroom unless the policy is enacted.

"Several judges have complained about the lack of trust for the office because we have so many attorneys running against them, and one judge has threatened to stop using the office as a result," Richardson e-mailed a county official.

Judge Angela King of County Criminal Court No. 6 is facing challenges from two assistant public defenders, neither of whom work in her court.

"You expressed to me that this has caused distrust of the office and has affected your ability to work with us," Richardson wrote in an e-mail to King. "You have indicated to me that having public defenders campaign against you would cause you to be distrustful of any assistant public defender assigned to your court."

Richardson said King confirmed that she would reconsider using public defenders if the resign-to-run policy is enacted. King didn't respond to a call seeking comment.

Other judges also are miffed about having challengers from the public defender's office.

IMO that's not a legitimate reason to keep people from running for office. Watkins' concerns about prosecutors negotiating on behalf of the state while receiving contributions from the lawyer on the other side of table probably are.

Assuming we're going to keep electing judges, Sheriffs and constables, what do you think? Should prosecutors or public defenders be required to resign to run? How about law enforcement officers? Where do you draw the line?

RELATED: See details of the proposed resign to run policy.

Medication lapse for Harris jail inmates especially long for patients with HIV

Randall Patterson has a compelling story at the Houston Press ("Jail misery," Nov. 19) that demonstrates in human form what the US Justice Department said were unconstitutional flaws in the Harris County jail's healthcare system. He highlights the case of Monte Killian, who became extremely ill after the jail failed to get him AIDS medication in a timely fashion.

In telling Killian's story, though, Randall buried his lede. Deep in the article we find this juicy paragraph:

It turns out that everyone who enters the jail on prescription meds experiences a break in their regimen, and that lapses in HIV treatment tend to be especially long. Dr. Michael Seale, the jail's director of health services, acknowledged the importance of minimizing such delays but said, "You can't go ahead without appropriate information." Thus, the clinic's thorough routine: Instead of confirming an inmate's claim of HIV by simply calling the inmate's doctor, the jail finds it necessary to test the inmate all over again before prescribing medication.

That's the critical piece - the element that makes this a public policy story that potentially affects everybody instead of just something that happened to Monte Killian. In September, the Texas Commission on Jail Standards cited failure to dispense prescription meds as one of the reasons the jail failed inspection, Patterson reports.

There are many situations where for public health reasons you wouldn't want to interrupt somebody's ongoing medication. AIDS patients are certainly one: Jails are unhealthy places and somebody without a natural immune system is in big trouble. And for obvious reasons, you don't want to keep mental health patients off their drugs for too long. For that matter, failure to keep somebody on antibiotics could cause jails to become incubators for antibiotic-resistant infections, which then migrate back to the free world.

That's an important glitch, plus it's a waste of resources to re-test inmates before prescribing medications. It would be quicker, easier and less expensive for everybody to rely on the private docs' diagnosis and prescription regimen until jail docs find reason to dispute it. That would also avoid medication delays that are getting the jail in trouble with the Justice Department and state jail regulators.

ACLU: CCA ignored evidence of false confession in capital case

Here's the text of a press release published today by the ACLU regarding a Court of Criminal Appeals decision in the Max Soffar case. I offer it FWIW, I have no personal knowledge of the details of the case:

Texas Appeals Court Rejects Appeal Of Innocent Man On Death Row For 28 Years

Death Sentence Upheld Despite Overwhelming Evidence Pointing To Innocence

AUSTIN, Texas - November 18 - The Texas Court of Criminal Appeals today rejected the appeal of an innocent man represented by the American Civil Liberties Union and the Texas Innocence Network (TIN) who has been incarcerated on Texas's death row for more than 28 years.

Max Soffar, whose mental illness left him particularly vulnerable to giving a false confession, stands convicted and sentenced to death for allegedly killing four victims during an armed robbery in a Houston bowling alley in 1980. Soffar appealed on the grounds that the trial court in 2006 prevented him from proving his innocence to the jury.

"Once again, this case demonstrates that serious error riddles the criminal justice system," said Brian Stull, staff attorney with the ACLU Capital Punishment Project. "When the state seeks a person's death as punishment, we must demand a process that produces accurate and reliable results. When an innocent man sits on death row for 28 years having never received a fair trial, when juries are not allowed to hear the evidence, and when appeals courts do not intervene to fix these problems, no one can trust the process."

In 1981, Soffar was convicted and sentenced to death based upon a false confession, but a federal court overturned the conviction in 2004 because his trial lawyers failed to argue that Soffar's confession contradicted the other evidence in the case.

In today's opinion, the court ruled that the false confession given by Soffar should stand, and that his constitutional rights were not violated when his 2006 trial court judge refused to allow him to show that the only correct details in his false confession were not the result of his involvement in the crime but instead had been obtained through widely disseminated media reports. The prosecution claimed, in an argument to the jury, that these details — although broadcast throughout Texas — could only have been known by the person responsible for the crime. Making an argument that not even the prosecutor made on appeal, the Texas Court of Criminal Appeals said in today's decision that even if the trial court judge erred by refusing to allow Soffar to utilize the media reports as part of his defense, the error was "harmless."

False confessions are among the leading causes of wrongful convictions, and evidence shows that people like Soffar who are impulsive, have low intelligence, low self esteem and are prone to fantasy and disassociation are the most likely candidates for false confessions.

The appeals court today also rejected Soffar's argument that the trial judge erred by refusing to admit evidence that another man confessed to committing the murders, and that this man committed a series of highly similar robbery-murders in Tennessee. The man, Paul Reid, formerly of Houston, now awaits execution on Tennessee's death row. A photograph of Reid, taken in Houston nine days after the crime, strongly resembles the composite sketch the police prepared based on the description of the sole witness to the crime.

Soffar's false confession also contradicts the account of the sole surviving witness and other reliable evidence.

"This case represents a textbook example of a miscarriage of justice," said David Dow of TIN. "From a false confession to two unfair trials and death sentences, the problems with Max Soffar's case show the grave failures of the criminal justice system. With the court's ruling today, Texas comes closer to executing another innocent man."

Soffar intends to appeal his conviction and death sentence to the U.S. Supreme Court, as well as pursue any and all additional appeals.

A copy of today's decision is available online at: www.aclu.org/capital-punishment/texas-court-criminal-appeals-decision-max-soffar-case

Additional information on Max Soffar's case is available online at: www.aclu.org/capital/innocence/29715res20070430.html

Lawyers on this case are Stull of the ACLU Capital Punishment Project and Dow and Jared Tyler of the Texas Innocence Network.

Florida looking to Texas for overincarceration solutions

Just a few years ago it was unimaginable that anyone would look to Texas for solutions to overincarceration pressures in state prisons. But beginning in 2007, Texas embarked on a remarkable bipartisan effort spearheaded by Sen. John Whitmire and Rep. Jerry Madden to avoid new prison building by expanding diversion programming and creating incentives to use progressive sanctions and reduce probation revocations. Amazingly, other states - most recently Florida - are now looking to emulate Texas' model, as described in this article from the St. Petersburg Times ("Florida's prison problem could find a solution in Texas," Nov. 18):

Florida is staring at a Texas-sized problem.

Fortunately, Texas might also have the solution.

Two years ago that state faced its own prison crisis: house 17,000 new inmates by 2012 at a cost of half a billion dollars.

But Texas never built any new prisons. Instead, for half that amount, it revamped its criminal justice system, reduced its prison population and became a national model for reform.

Too often Texas' justice system is the source of barbs and giggles, if not outrage and horror, when discussed by others around the country. Our governor scoffs at scientists and daydreams about secession, while our Court of Criminal Appeals notoriously excuses even the grossest official misconduct - like a judge and prosecutor sleeping together - if it helps uphold a conviction.

So it's a pretty extraordinary thing to read about some aspect of Texas' justice system receiving high praise from states who'd like to copy us, and it's a tremendous credit to legislators for putting aside partisan differences in order to make those reforms happen. Texas has lately become a national leader at reducing its incarceration rate. The state needs to build on those successes, not rest on our laurels, but I'm proud of everyone who was involved in making those changes happen and also protecting those accomplishments in 2009.

Just to have mentioned it, since Madden, Whitmire and their respective committees always get credit for the 2007 probation reforms, its should be noted that Senate Finance Chair Steve Ogden, who is retiring from the Senate this election cycle, supported funding for the 2007 probation initiatives even though they went against some of his own tuff-on-crime views, which as Finance Chair came into conflict with his more notorious fiscal conservative streak. Texas' probation reforms wouldn't have happened if he hadn't been willing to take a leap of faith, and the good senator hasn't always gotten credit for that. So thanks, Sen. Ogden.

Nueces looks to GPS for supervising work-release offenders

Nueces County plans to try using GPS ankle monitors and house arrest in lieu of incarcerating offenders in the county's work-release program. Reports the Corpus Christi Caller Times ("Commissioners approve ankle monitoring to relieve jail overcrowding," Nov. 18):

County Commissioners approved a program Wednesday that gives judges the option of sentencing low-risk offenders to house arrest using ankle-monitoring bracelets rather than sending them to jail.

Offenders would be required to pay the $6.50-a-day cost of the electronic tracking devices. ...

Inmates eligible for ankle monitors would be those on a work-release agreement with the courts. The decision will be made by local judges and the monitoring and fee collections handled by the sheriff’s office. ...

The county is expected to order 10 ankle monitors and evaluate the program after two months to determine whether it is effective.

It's no surprise that work-release programs are among the first to go when jails are overcrowded. When offenders are low enough risk to allow them to leave for work every day, it serves little public safety purpose to incarcerate them at night or on weekends in an already-full jail.

Travis County this year ended its work-release program. Travis offenders who previously would have been in work-release instead show up on weekends and participate in work crews instead of spending the weekend incarcerated. In Smith County, inmates previously incarcerated on work-release are now supervised through the day reporting center created by the county and Judge Cynthia Kent.

Like the solutions in other counties, Nueces County's approach in practice will require extra staff resources for monitoring. GPS is tracking is more resource-intensive than many agencies anticipate and is not a substitute for well-staffed community supervision. But I'm encouraged by their efforts to move non-dangerous offenders out of the jail and supervise them in the community. It's a small step in the right direction.

Federal Sentencing Commission to hold regional hearing this week in Austin

Via Sentencing Law and Policy I discover that the US Sentencing Commission will be meeting in Austin this week. Here's the press release announcing the event and an agenda with a list of speakers.

According to the release, "The public and the media are invited to attend the hearing, which will be held at the University of Texas at Austin School of Law, Eidman Courtroom, CCJ Building, 727 East Dean Keeton Street, Austin, TX 78705. On November 19, the hearing will begin at 8:30 a.m. and conclude at 3:00 p.m. On November 20, it will begin at 8:45 a.m. and will conclude at 1:00 p.m."

On Thursday, Dallas DA Craig Watkins will be on a panel discussing "Alternatives to incarceration, reentry, and community impact." Adam Gelb of the Pew Center on the States will be on the same panel - I've read and used his work before but never met Mr. Gelb. Another panel on federal probation consists of the probation directors in Texas' Western and Southern Judicial Districts.

On Friday morning, Judges Edith Jones and Fortunato Benavides from the Fifth Circuit Court of Appeals will offer a "View from the Appellate Bench." Harley Lappin, the director of the Federal Bureau of Prisons, will also speak on Friday.

This blog doesn't closely follow federal sentencing issues, and I've never been to a US Sentencing Commission meeting. (Texas relies on jury sentencing and plea bargains and doesn't have a comparable body.) But if they're going to bring all these bigwigs to Austin and speak about criminal justice issues just a mile or so from my home, I suppose I should attend. :)

DPS to parents: Your kid could become a Mexican cartel assassin if you don't watch out

I have to wonder what was the purpose behind the timing of a DPS press release (pdf) issued today? Here's the text:

DPS warns parents:
Mexican cartels and gangs recruiting in Texas schools

The Texas Department of Public Safety is warning parents across the state to be aware of efforts by Mexican cartels and transnational gangs to recruit Texas youth in our schools and communities. These violent organizations are luring teens with the prospect of cars, money and notoriety, promising them if they get caught, they will receive a minimal sentence.

The Mexican cartels constantly seek new ways to smuggle drugs and humans into Texas are now using state based gangs and our youth to support their operations on both sides of the border.

For example, Laredo natives Gabriel Cardona and Rosalio Reta were recruited in their teens to be hit men for the Zetas. The Zetas, composed primarily of former Mexican military commandos, originally served as the enforcement arm of the Gulf Cartel, but have since become their own cartel. El Paso teens have been recruited to smuggle drugs across the border, many with the packs taped to their bodies.

While such recruitment is growing across Texas, juveniles along the Texas-Mexico border are particularly susceptible. In 2008, young people from the counties along the Texas-Mexico border accounted for just 9 percent of the population in Texas, but 18 percent of the felony drug charges and gang-related arrests.

“As these dangerous organizations seek to co-opt our children to support their criminal operations, it is more important than ever that parents be aware of these risks, talk to their children and pay attention to any signs that they may have become involved in illegal activities,” said Steven C. McCraw, director of the Texas Department of Public Safety.

To protect our communities and our children from these powerful and ruthless criminal organizations, local, state and federal law enforcement agencies and the District Attorneys in Texas border counties are working together to detect, disrupt and deter Mexican cartel-related crime along the Texas-Mexico border.

I agree drug cartel violence is a big problem; I'm particularly concerned that nobody seems to have a plan for what to do about Ciudad Juarez, which has devolved into an anarchic dystopia, awash in blood. Against that backdrop, though, it's odd for DPS to highlight the two cases of teen "hit men" which actually happened several years ago. The story came out in the press in April 2007 - see Grits coverage - back when now-DPS director McCraw was the governor's homeland security chief.

One supposes that kids most likely to be recruited by drug gangs will be neglected, dispossessed, and impoverished - i.e., youth whose parents aren't likely to read or respond to a DPS press release. Further, it follows that such recruits will likely number among the many thousands of Texas high school dropouts, not in "schools," as the press release headline suggests. These criminal smuggling organizations feed off the misery and fear of others, including the children they recruit, so the cartels benefit from a robust labor pool whenever a large, poor, uneducated underclass exists. That group of youth, not those in school with attentive parents, are the ones likely to be trained and recruited by groups like Los Zetas.

In light of that distinction, one wonders if warning parents to talk to their children and pay attention for signs of illegal activities by kids will really help retard drug smuggling or cartel violence? It seems like a strange focus, though certainly from a political perspective you can never go wrong issuing calls to Protect the Children. But if DPS really wants the public's help disabling drug cartels, why not ask them to help identify corrupt public officials? Lord knows we've got our share of those, and average folks are more likely to turn them in than they are their own kids.

H/T: Dallas News Crime Blog

MORE (11/18): From the Texas Tribune, where Brandi Grissom came up with a better headline than mine: Mamas, Don't Let Your Babies Grow Up to be Smugglers.

Does rise in white-collar prosecutions stem from too-weak business regulation?

I've suggested before that white-collar crime prosecutions shouldn't be used as alternatives to industry regulation, but given how white-collar cases frequently play out in the real world, I can understand why that approach is politically and, to an extent, even practically justified.

Take the instance yesterday in which the state insurance regulator ruled that State Farm had overcharged its customers hundreds of millions of dollars over the last six years. Reports the Dallas News:

State Farm Insurance must repay its customers $310 million for charging them too much for homeowners coverage dating back to 2003, the state insurance commissioner ruled Monday.

The ruling by Insurance Commissioner Mike Geeslin, the latest in a years-long case, is for far less than the $1 billion that consumer advocates recommended, and one called it a "joke."...

Alex Winslow of Texas Watch, a leading consumer group on insurance issues, called Geeslin's ruling a "slap in the face," saying it cheats State Farm policyholders out of millions of dollars in excessive premiums.

"The commissioner has shirked his responsibility to Texas homeowners and proved that our current insurance market doesn't work," he said.

"Consumers had a right to expect a full and complete refund of all overcharges plus interest, and the commissioner chose to allow State Farm to pocket hundreds of millions of dollars rather than return that money to policyholders," he added.

A stronger regulatory system with teeth might have a) kept overcharges from happening in the first place or b) more completely compensated customers for the money State Farm charged them over the regulated rate. However, Texas' insurance commissioner is a political appointee and the big insurance companies in this state tend to get what they want, or most of it, from the political class - pretty much no matter which party is in power.

I know no more about this case than what's reported in the paper, but let's say it's true that State Farm overcharged its customers around $1 billion and now won't pay them back on the grounds that they'd go bankrupt. (The closing paragraph in the article says State Farm spent the money to pay back a loan to its parent company, so I don't see why that entity couldn't pay). Let's face it, if someone knowingly overcharges a customer then refuses to give the money back because they already spent it, that's tantamount to theft. And allegedly stealing a billion dollars is a big deal, even if it was stolen from thousands of ratepayers a few hundred dollars at a time.

To be clear, I don't think prosecuting insurance executives in rate disputes would benefit the ratepayers or, really, anyone at all. Historically American society hasn't dealt with that kind of corporate "theft" through the criminal justice system, which is designed to more effectively prosecute thefts by the poor - e.g., burglaries by druggies or the homeless guy for stealing copper wire from a construction site. Law enforcement isn't very effective at going after the guys who steal nine or ten-figure sums with a fountain pen instead of a gun, though in theory such offenses would merit life sentences in Texas (or 5-99) based on the amount of money stolen. Even when white-collar offenders are prosecuted and punished, rarely does that mean the crime victims get their money back.

The other option in such circumstances is civil litigation, but tort reform has made such large-scale class-action suits more difficult and less lucrative. Even when a suit can be pursued, attorneys regularly settle their cases for large fees but only symbolic compensation for the thousands of affected consumers - hardly a satisfying outcome.

In this case, reports the Dallas News, State Farm "was told to cut its rates 12 percent" in 2003. They "sued the state, and the case has been rolling around the courts since," but in the meantime they continued to charge customers the higher rates. So the company defied state regulators and knowingly continued to charge its customers more than state law allowed.

Regrettably, given a chance to order that they repay the full amount of the overcharge, Texas' one-man insurance regulatory body decided that State Farm needn't pay 70% of what they allegedly, improperly took. He had the chance to fix the problem on behalf of ratepayers, but instead created a situation where they apparently have no meaningful recourse through either civil or regulatory means to recoup 70% of what they were overcharged.

If ratepayers want justice, they clearly won't get it through the civil courts or state regulators - both have had their chance. So if they're not going to be fully compensated for what's taken from them, it's understandable why injured parties and the observing public would conclude that punishment in the criminal justice system is at least some justice if not the most preferable outcome, which would be recouping lost funds.

Such an environment of consumer/public frustration - where it appears government is incapable of fairly resolving middle-class disputes with corporate power - create a strong political motive for prosecutors to pursue white-collar crime cases, often over what used to be considered unfortunate, spectacular, but in the big capitalistic picture relatively routine, non-theft business losses.

There's a difference between a Bernie Madoff running an outright Ponzi scheme and a speculator who loses clients' money because the bubble they were hyping suddenly burst. (State Farm's case, to me, lies somewhere in the hazy middle on that spectrum.) And even Bernie Madoff should have been caught by regulators, it's just that the agencies in charge of oversight were lax, underfunded, incompetent and in some cases even corrupt.

In the wake of recent Wall Street debacles and bailouts, I'd harbored perhaps quixotic hopes that the coming months and years might find a more receptive environment for regulatory solutions regarding corporate misconduct, finding ways to resolve or (even better) prevent such imbroglios without the need for large-scale civil litigation, much less expensive, morally ambiguous white-collar criminal prosecutions aimed at satisfying an angry and vengeful public.

If state regulators and civil courts are too weak and disempowered to exact justice for consumers, it's only natural the public would turn to prosecutors for answers, since they wield enormous power - even if harshly punishing such "offenders" can't restore what's lost to victims. I'm just not sure who such an approach really benefits.

TDCJ on recording death row visits: Policy? What policy?

Yesterday I got back a response to my public information act request to TDCJ (following another one, under separate cover, from the Office of Inspector General), stating that, "Pursuant to a diligent search of agency records, we have determined that no responsive information is maintained by the TDCJ in regard to your request. Here's what I had asked for:

• Any TDCJ policies regarding recording of conversations during death-row inmates' non-attorney visitations, including any policy describing how often recording occurs, under what circumstances, whether every call is recorded, what is done with the recordings, who has access to them, how long they're kept, what documentation must be maintained, etc..
• Any log or record of recordings from visitations for now-deceased death row inmate Cameron Todd Willingham.
• Any log or record of who has accessed or listened to recordings from visitations for now-deceased death row inmate Cameron Todd Willingham.
• The tape or audio file (in whatever format it's maintained in) of any recorded visitations with Cameron Todd Willingham during the month before his execution.

So we are to understand from this response: First, TDCJ has no written policy regarding recording death-row inmates non-attorney visitations. Really? They're set up to record every conversation if they choose to do so. Can it possibly be true that there's no policy on when and how that's done? Do they really just make it up on a case by case basis as they go along?

Second, taking them at their word, either TDCJ did not record any visitations with Willingham - including the one where his ex-wife has given conflicting accounts regarding whether he confessed - or they do not keep logs of whether or not inmate visits are recorded.

The latter explanation seems hard to swallow - there are too many security reasons you'd want to record death-row inmates' conversations and later be able to recall the recording. The example of Richard Tabler comes to mind, who smuggled letters out of prison that contain threats against State Sen. John Whitmire's family. Do you really not want to monitor that guy's non-attorney visitations? Can it possibly be true that there is no policy regarding when, how, and at whose instigation that should happen?

That's what I'm to believe from a letter dated Nov. 10 from Patricia Fleming, Assistant General Counsel to TDCJ. Maybe that's a question the Senate Criminal Justice Committee should ask the next time they haul Brad Livingston in front of them to talk about contraband and death row security.

Appleseed rightly sues to make police use-of-force policies public

I'm pleased to learn that Texas Appleseed has filed suit challenging the Texas Attorney General's rulings on keeping use of force policies closed for police stationed at schools. (I'd encouraged Appleseed to go to court over this in a prior blog post.) Reports the San Antonio Express News:

Texas Appleseed, which rallied against the Texas Youth Commission's pepper spray-usage policy two years ago, is now looking into pepper spray and Taser usage in public schools.

The nonprofit filed open-records requests with 24 school districts across Texas in July asking for the use-of-force policies. About half the districts complied.

Among those that didn't were SAISD and Spring Branch ISD — both of which had suits filed against them Thursday.

Leslie Price, spokeswoman for SAISD, said Friday the district hadn't yet been informed of the suit but that the disagreement is nothing new.

The Texas Attorney General's Office issued an opinion in October that the school district didn't have to fully comply with the request because some law enforcement details are exempt from open-record laws.

Problem is, the AG is relying on an overbroad interpretation of the Public Information Act to claim that key portions of police use of force policies are closed records. But in fact, there appears to be no solid basis in the law for that view. Proponents of opacity try to skirt around the plain language of the statute by saying release of policies would "interfere with law enforcement." But that's not an exception to the open records act!

Agencies seeking to close these records rely on Sec. 552.108 of the government code, which states in relevant part that agencies may keep from disclosure any information which might "interfere with the detection, investigation, or prosecution of crime."

Use of force policies don't fit any of those three categories. They involve how police interact with suspects during arrest. By the time of an arrest, a crime has already been "detected." Similarly, the arrest process does not implicate the "investigation" of crime: When use of force is part of the investigatory process, that amounts to torture which is clearly illegal. And only prosecutors can prosecute, so policies about how police conduct arrests simply have nothing to do with the prosecution of any alleged underlying crime.

I'm not an attorney so maybe I'm missing something. I'd appreciate anyone who thinks otherwise to present an argument in the comments regarding how releasing police use of force policies could possibly "interfere with the detection, investigation, or prosecution of crime" as described in Govt Code Sec. 552.108. I just don't see it, and I'm hopeful a district court will agree and enforce the plain language of the Texas Public Information Act.

Judge Sam Sparks: Parole chief Rissie Owens is "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed"

US District Judge Sam Sparks refused to hold parole board chair Rissie Owens personally liable, as a jury verdict would have him do, for applying sex-offender registration to Texas parolees without even minimalist due process. But he called her out for violating parolees' civil rights in just about the harshest terms imaginable and ordered the state to pay six-figure legal fees, reports the Statesman's Mike Ward ("No liability for parole chief," Nov. 13):

The Tuesday decision absolves Texas Board of Pardons and Paroles Chairwoman Rissie Owens of personal liability in actions against Ray Curtis Graham and still leaves state taxpayers liable for paying Graham's legal fees, which are estimated at more than $100,000.

In his new order, Sparks wrote that Owens has been aware of problems in the parole system but did nothing until the court ordered her to do so.

"Her inattention is mystifying, and it shows her to be some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed,' " Sparks wrote, quoting from another court decision in a related case.

Even so, Sparks said, "her inaction, however abstruse, does not make her personally liable in this case." He left intact the portion of the verdict that determined that Owens and state Parole Director Stuart Jenkins had violated Graham's right to due process. Owens could not be reached for comment.

It's not just Rissie Owens, wrote Sparks in a 32-page order, but "The [Parole] Board as a whole seems to regard the procedural due process rights at issue ... as annoying pests that plague and torment it through no fault of its own." Yikes! I'd be pretty nervous if a federal judge were that mad at me!

A very important distinction

The New York Times clarified an important distinction in a correction to a recent story about the Innocence Project at Northwestern University:

Correction: November 1, 2009
An article last Sunday about the Medill Innocence Project, in which students at Northwestern University’s journalism school scrutinize the work of prosecutors and the police, misstated part of the name of a group at the university’s law school that has worked with the students. It is the Center on Wrongful Convictions, not the Center for Wrongful Convictions.

That's one of the all-time best corrections, ever!

This blog post is brought to you by the Center for Conviction and Punishment of the Actually Innocent, which is not affiliated with the Center for Wrongful Convictions.

Buddhism in Texas prisons

One usually thinks of prison ministries as a Christian or perhaps an Islamic calling, but according to an informative article by Zen Zheng in the Houston Chronicle ("Cultivating her faith," Nov. 12) "Buddhist volunteers work in eight of 113 state prisons." Buddhist prison ministries are spearheaded by Myokei Caine-Barrett, a Texan who was introduced to Buddhism in El Paso and Houston. She has performed weekly services at TDCJ facilities since becoming ordained in 2007.

New rehab beds coming on line, but TDCJ still struggles with contraband

After the segment of Tuesday's Senate Criminal Justice Committee on the Forensic Science Commission, I left along with the entire press corps to attend Rodney Ellis' press conference with Barry Scheck of the national Innocence Project. The rest of the senate committee and a few interested House members, however, stayed to listen to TDCJ Executive Director Brad Livingston give a brief report on contraband interdiction and the rollout of new rehab beds authorized during the last two sessions. This morning I went to the video archives of the Texas Senate web site to watch the portion of the meeting I missed. (I love the Internets!) Here's a summary:

Livingston reported that TDCJ still struggles with contraband, despite a so-called "zero tolerance" policy that's been in place for the past year. In mid-September, he said, TDCJ put 14 units (out of 112) on lockdown/ shakedown for 10-14 days, targeting facilities where contraband was considered most prevalent. During that lockdown they found 76 cell phones, 12 tobacco items, 22 prisoners with marijuana, and five with caches of money.

To put that in perspective, he said, through Oct. 31 of this calendar year, TDCJ found 950 cell phones throughout the system. They also intercepted another 324 cell phones before they reached the offender (which is a new statistic they're now categorizing separately).

Livingston said TDCJ has scaled back pat searches for staff entering most facilities, only doing it randomly instead of for every entrant. He didn't clarify with what frequency is "random," but they still pat down staff 24-7 at the 14 targeted units. At several facilities, he said, TDCJ has added metal detectors and staff to search for incoming contraband.

Whitmire asked a great question about searching employees as they leave work instead of just going in. Livingston said that happens during lockdowns but otherwise only on a "random" basis - again, never specifying how often "random" is in practice. Whitmire was specifically referencing a letter smuggled off death row that notoriously included a threat to his family, but said he also was concerned with staff leaving the facility with cash, communications or other contraband that was at least as problematic as what they brought in.

There was another interesting exchange in which Whitmire asked Livingston whether any units had structural deficiencies that contributed to contraband smuggling. Livingston couldn't name any, but Whitmire said he was specifically referencing a unit in Mineral Wells where a short wall is close to the road and contraband was thrown over so frequently the prison put up a golf net behind it. Livingston said cautiously that the golf net had reduced the problem of throw overs, but Whitmire told him that's not good enough. '"If you have a structural problem or manpower problem, make that a priority," said the Senate dean. I wonder how many other facilities have "structural" flaws, as Whitmire put it, that make them vulnerable to contraband smuggling?

The committee also received a brief update on the status of the prison population and new rehab beds authorized by the last two Legislatures. Livingston pointed out that at the end of August TDCJ was able to cancel/not renew contracts with county jails for extra beds because they didn't need the space. The prison population, he said, has been "very flat."

Rehab programs authorized by the Legislature, said Livingston, are all in place or coming online soon. Of those, the one with the furthest to go are the 1,400 Intermediate Sanctions Facilility (ISF) beds authorized in 2007. Of those, 549 beds are operational; 851 more are under construction by thevendor and should be operational by 2010.

Of 1,500 newly authorized SAFP (substance-abuse treatment) beds, 920 are operational, with the remaining 560 beds being phased in this fall. All the new SAFP beds, he said, should be operational by February. Finally, 100 of 300 new halfway house beds are still under construction. Livingston expects these to open by spring 2010.

Rep. Jim McReynolds asked about staffing, and Livingston said their guard vacancy level was as low as it's been in 10-15 years: About 1,053 vacancies, currently. (A combination of the recession and front-end pay incentives has dramatically reduced that number from more than 3,700 just a short time ago.)

Senator Kel Seliger asked how quickly TDCJ typically moves prisoners from county lockup to TDCJ units after they've been convicted, saying he'd heard from a county official in his district that it was taking 45 days. Livingston said that 45 days was the maximum time allowed by law, but that the average delay statewide is only 21-22 days.

After these perfunctory updates Chairman Whitmire closed the meeting.

Why do Americans murder?

A New Yorker book review by Jill Lepore explores the question "Why is American history so murderous?" Fascinating stuff. Here's her comparison (based on information in several books reviewed together) of US homicide rates with European nations:

In Europe, homicide rates, conventionally represented as the number of murder victims per hundred thousand people in the population per year, have been falling for centuries. Spierenburg attributes this long decline to what the German sociologist Norbert Elias called the “civilizing process” (shorthand for a whole class of behaviors requiring physical restraint and self-control, right down to using a fork instead of eating with your hands or stabbing at your food with a knife), and to the growing power of the centralizing state to disarm civilians, control violence, enforce law and order, and, broadly, to hold a monopoly on the use of force. (Anthropologists sometimes talk about a related process, the replacement of a culture of honor with a culture of dignity.) In feuding medieval Europe, the murder rate hovered around thirty-five. Duels replaced feuds. Duels are more mannered; they also have a lower body count. By 1500, the murder rate in Western Europe had fallen to about twenty. Courts had replaced duels. By 1700, the murder rate had dropped to five. Today, that rate is generally well below two, where it has held steady, with minor fluctuations, for the past century.

In the United States, the picture could hardly be more different. The American homicide rate has been higher than Europe’s from the start, and higher at just about every stage since. It has also fluctuated, sometimes wildly. During the Colonial period, the homicide rate fell, but in the nineteenth century, while Europe’s kept sinking, the U.S. rate went up and up. In the twentieth century, the rate in the United States dropped to about five during the years following the Second World War, but then rose, reaching about eleven in 1991. It has since fallen once again, to just above five, a rate that is, nevertheless, twice that of any other affluent democracy.

That puts a bit of a different spin on the debate of whether and how much the death penalty acts as a deterrent, doesn't it, when nations that have abolished capital punishment deter murder with greater success?

Lepore also provides an able overview of the antebellum use of capital punishment and three-strikes laws in the United States, including history I hadn't seen before:

Capital punishment has been on the books in Connecticut since 1642. Three strikes has been tried before, too. In Colonial America, many crimes, including murder, were punishable by death and, for lesser crimes, Connecticut, like many colonies, mandated the death penalty for third-time offenders. That began to change on September 7, 1768, when a burglar named Isaac Frasier was hanged in Fairfield. Frasier had shown early evidence of a “thievish Disposition.” “Men go from one degree of wickedness to another,” the town’s minister said in a sermon at the gallows titled “Excessive Wickedness, the Way to an untimely Death.” Convicted of burglary in New Haven, Frasier was whipped and branded and had his ears cropped. Caught again in Fairfield in 1766, he received the same punishment “and was solemnly warned . . . that death would be his punishment on a third Conviction.” When Frasier robbed another house, he was sentenced to death. “The Government of Connecticut have always been remarkably tender of putting persons to Death,” one observer noted. But when Frasier applied to the legislature for clemency, he was denied. Said the pastor at the gallows, “Justice requires that you should suffer.”

An outcry followed. Two weeks after Frasier’s death, a Hartford newspaper published an essay called “An Answer to a very important Question, viz. Whether any community has a right to punish any species of theft with death?” The writer’s answer—an emphatic no—borrowed extensively from Cesare Beccaria’s treatise “On Crimes and Punishments,” published in 1764. Beccaria, an Italian nobleman, argued against capital punishment—which was, at the time, widespread in Europe, too—on two grounds: first, in a republic men do not forfeit their lives to the government; and, second, capital punishment does not deter crime. Beccaria argued (and Kleiman has merely revisited that argument) that punishments, to be effective, must be swift and certain but not necessarily severe. Punishments, he insisted, should be proportionate to crimes, whose dangerousness could be measured, in “degrees,” by their injury to society. For the crime of murder, Beccaria considered life in prison to be both more just and a more effective deterrent than execution.

The first American edition of Beccaria’s treatise was published in 1777, and it reached a wide audience in Connecticut beginning in 1786, when it was serialized in a New Haven newspaper. “If we glance at the pages of history, we will find that laws, which surely are, or ought to be, compacts of free men, have been, for the most part, a mere tool for the passions of some,” Beccaria wrote. This argument held particular appeal for a people who had just finished waging a war against the passions of King George; adopting Beccaria’s recommendations came to seem, in a fundamental sense, American, as if the United States had a special role to play, as a republic, in the abolition of capital punishment. In 1784, the Yale senior class debated whether the death penalty was “too severe & rigorous in the United States for the present Stage of Society.”

In the seventeen-nineties, five states abolished the death penalty for all crimes except murder. By the eighteen-twenties, all Northern states reserved capital punishment for first-degree murder. When incarceration replaced all corporal and most capital punishment, Americans built prisons, and sentenced criminals to jail time. In 1846, Michigan became the first state to abolish the death penalty.

Most of the arguments offered for WHY the United States has higher murder rates seem a little half-baked (a prevalent European theory holds that Americans gained political freedom before we were civilized), but the higher rates are a long-term reality and it's an interesting question why Americans kill each other more often? Go read the whole piece for a taste of the variety of theories offered by different authors to explain the question. Certainly IMO there's a cultural element to it - a distinctly American preference for "honor" over "dignity," as Lepore put it. She also suggests that the wider availability of guns in America contributes. But none of these theories either a) are verifiable or b) completely explain the long-term data, even if true.

Why do you think Americans kill each other more often than citizens of other affluent democracies?

'Constables Gone Wild'

The title of this post is the headline to a Dallas News editorial about evidence that two Dallas constables misled investigators when they claimed not to have contracts with a particular towing company. An attorney for the towing company was able to produce the contracts with the constables' own signature on them. I agree with every word of the Dallas News editorial (something I don't often say), but especially this conclusion:

No one in this dispute has a shred of credibility left. Not the commissioners who recently approved the copying of the hard drive of one the constables. Not the district attorney who has been coy about whether his office is investigating. Not the constables who suddenly have signed towing contracts that a few weeks earlier supposedly didn't exist. And certainly not the towing company, which the Texas Department of Licensing and Regulation is investigating for possible administrative violations.

There are lots of words to describe this debacle. Straight shooting isn't one of them.

In a recent reader poll, 67% of Grits readers thought constables' offices should be abolished (though the Texas Association of Counties disagreed).

About the only positive you can say about the fiasco in Dallas is that it's re-raised debate over just what the hell these obscure, antiquated offices are doing in the modern era. In larger counties like Dallas where, unregulated and unaccountable, they've taken on workaday policing duties, the short answer IMO is "tasks that should be performed by someone else."

Petty cash to informants: Routine investigative technique or inducement to perjury?

One of the ways I keep Grits a (relatively) manageable project is by remaining geographically limited, so I haven't followed in more than a cursory fashion the efforts by Illinois prosecutors to legally harass Northwestern University students working with that university's innocence clinic. But given this blog's interest in informant-related issues, I laughed out loud when I read the latest drummed up charges by prosecutors in that case against students from the Northwestern Innocence Project:

According to the court documents, Tony Drakes, one of the witnesses the students believe was involved in the 1978 murder of security guard Donald Lundahl, told state investigators that he "gave the students a video statement for money" and recanted the videotaped statement.

In the prosecutors' documents, Drakes alleges that Sergio Serritella, the private investigator working with the students, gave a taxi driver $60 for what was estimated to be a $6 cab ride home to a bus station near where the 2004 interview took place.

Drakes says the the cab driver gave him "the change" -- about $40 -- which Drakes says he later spent on crack cocaine.

The prosecutors admitted they also paid Drake $10 for gas money in exchange for meeting with them, but that, obviously, is completely different, right? They assure us, harrumph harrumph, that it undoubtedly is.

I find these charges utterly laughable given the day-to-day practices of police and prosecutors regarding so-called "confidential informants." In Dallas, the snitch at the center of the fake drug scandal was paid about $200,000 in fees by police for helping set up two dozen innocent people based solely on snitch testimony and faked field tests for drugs by police. (With what appeared to be overwhelming evidence, nearly all the defendants, mostly non-English speaking legal and illegal residents, took pleas that included deportation.)

Informants get paid cash all the time. But even more than that, they're often granted massive reductions in their own sentences in exchange for testimony - an invaluable commodity that's routinely exchanged for testimony in American courts. entering into a so-called "5-K" snitch agreement with the US Attorney is the only method on the books for securing a downward departure from federal sentencing guidelines (though after a series of recent cases judges now have discretion for downward departure if they explain their reasons). And snitching is also the only ways federal prisoners already locked up can get out sooner than their day for day sentence.

As far as this example goes, the investigator gave the $60 to the cab driver, not the informant. But even if it was intended that the witness would benefit, that kind of thing happens every day when police are making cases. Money in drug stings falls inadvertently (wink, wink) into informants' hands all the time. (See this petty but typical example.) Indeed, one wonders what if any inducement prosecutors gave this fellow, who is now sitting in jail, to change his story, and whether they taped their interview with the witness the way the Innocence Project students did?

Indeed, if $40 could buy false testimony, as these prosecutors allege, then a large amount of testimony in criminal courts should be similarly called into question. I don't know what Illinois' open records laws are like, but it'd be interesting if somebody asked for how much was spent in recent years by the DA and police departments in their jurisdiction for informant payments. I'll bet it's a bloody helluva lot more than $40.

Judging from afar, with no inside knowledge, these don't appear to be serious allegations so much as a trumped up harassment and PR campaign by a District Attorney who's tired of seeing his old cases unraveled by Northwestern students.

Restorative Justice in Schools

Via The Crime Report:

A new publication by the Illinois Criminal Justice Information Authority provides suggestions for how schools can address behavioral issues and rule-breaking from a restorative, rather than punitive, standpoint. “Implementing Restorative Justice: A Guide for Schools,” finds that “there is no evidence that zero tolerance policies improve student behavior, the school climate or overall school safety,” and encourages school officials to counter the trend of criminalizing school misconduct with such techniques as separating the deed from the doer and using misbehavior as an opportunity for learning.

Click here to read the full report.

'Unanalyzed evidence held by law enforcement agencies'

As questions continue to arise about the quality of modern forensic sciences, the National Institute of Justice in a new report (pdf) about "Unanalyzed evidence held by law enforcement agencies" raises questions about when and how forensics are used. According to the NIJ executive summary:

More than 2,000 state and local law enforcement agencies responded to a survey [1] to:

1. Estimate the number of unsolved homicide, rape and property cases [2] nationwide that contain forensic evidence that has not been submitted to a crime laboratory for analysis.
2. Determine the existence of policies and procedures regarding the processing, submission to a lab and retention of forensic evidence.

The survey showed that agencies:

• Had not submitted forensic evidence (including DNA, fingerprints, firearms and toolmarks) to a crime lab in:
  • Fourteen percent of open, unsolved homicides.
  • Eighteen percent of open, unsolved rapes.
  • Twenty-three percent of open, unsolved property crimes.

There are reasons why a law enforcement agency may not submit forensic evidence to a lab. The evidence may be considered not probative, charges may have been dropped or a guilty plea entered. However, the researchers who conducted the NIJ-funded survey also concluded that some law enforcement agencies may not fully understand the value of evidence in developing new investigative leads.

Learn more about why evidence may not have been submitted.

The survey also revealed that:

• Only four out of 10 law enforcement agencies have a computerized system for tracking forensic evidence either in their inventory or after it is sent to the crime lab. Learn more about the use of computerized systems.
• Policies and practices for evidence retention varied widely from jurisdiction to jurisdiction.Learn more about policies and practice.
• There are steps that law enforcement agencies, forensic laboratories and prosecutors can take to improve the use of forensic evidence. Read a summary of the study recommendations.

The survey did not determine:

• How many of the open cases would be solved or yield investigative leads if evidence in them were to be sent to the lab.
• The number of cases in which evidence was analyzed in the past, but which now, with more advanced technology, might be solved or yield investigative leads. Read more about the potential value of the evidence.

The survey found 93% of agencies have no cold case squad assigned to check DNA samples in old cases. They also found 38% of agencies have no written policies about retention of biological evidence even though 80% of surveyed agencies were the primary entity responsible for storing that evidence. Fifty seven percent of agencies had no computerized system for tracking evidence in their possession (pp 49-51 in the pdf).

This research implicates efforts by innocence projects to find cases where DNA evidence could exonerate defendants in older cases, as well as efforts by police cold case divisions to identify the guilty from long-ago crimes. In practice, often agencies don't retain evidence from old crimes or fail to test (and even fight testing) evidence in their possession. I'm glad to see the feds starting to take a more comprehensive look at the practical issues surrounding these important questions.

Defiant John Bradley rebuffed on secrecy pleas

Blogs play different roles in different types of news stories. Frequently Grits covers topics that receive very little attention from the press, in which case simply reporting what goes on provides a meaningful service. But some stories, like Gov. Rick Perry's replacement of the Texas' Forensic Science Commission chairman with Williamson County District Attorney John Bradley, take on a media life of their own. In those cases, nobody really needs me to give the blow by blow.

Yesterday's Texas Senate Criminal Justice hearing was attended by a full-blown media gaggle, whose coverage I compiled as comprehensively as I could at the end of this post. The whole thing was well covered in the MSM, so I won't give a soup to nuts account here, but rather offer my own after-the-fact impressions. All the usual suspects were there: Between the press, legislators, staff and the audience, it seemed like I knew about 2/3 of the people in the nearly-full hearing room, on both sides of the debate. (Even Judge Barbara Hervey from the Court of Criminal Appeals was kind enough to stop and say "hello.")

Mr. Bradley was the sole witness at the hearing. He seemed to thrive in the limelight with his ego swelling more and more as his performance wore on, to the point at the end of near-open defiance toward Sen. Rodney Ellis and state Rep. Tommy Merritt, the chairman of the House Law Enforcement Committee who sat in on the hearing. In many ways, it was quite an arrogant performance - answering nothing concretely and accusing (implicitly or explicitly) anyone who disagreed with him of bias. Several times Bradley spoke of the Innocence Project with a disdainful sneer as a "New York nonprofit," as though Jeff Blackburn of the Innocence Project of Texas weren't sitting just six feet behind him in the audience. As though Texans don't really care about innocent people locked up in prison.

To dredge up a quote from an old Terry Allen song permanently ensconced in Grits' sidebar, Mr. Bradley, "I don't wear a Stetson, but I'm willing to bet son that I'm as big a Texan as you are."

Bradley's main theme, to which he returned several times, was that the Forensic Science Commission had been "hijacked" by people with anti-death penalty agendas. I kept wondering which statewide GOP official who makes appointments to the commission - Rick Perry, David Dewhurst, or Greg Abbott - does he believe aided and abetted this "hijacking"? Apparently Gov. Perry's original appointees were to blame, since getting rid of them, we're now told, will somehow result in depoliticizing and professionalizing the commission. Sen. Whitmire and others reminded Bradley that those "third parties" of whom he was so dismissive were actually representatives of the public, but that did nothing to mitigate the DA's disdain.

Bradley claimed he's not a political "pawn" (perhaps he considers himself a bishop, knight or a rook), but his main agenda was clearly to justify an open-ended delay in pursuing the commission's pending work. Expect the denouement of the Todd Willingham case to be delayed many, many months - it could easily be after the 2010 general election before the FSC takes it up again, to judge by the timeline laid out yesterday. Bradley says the commission first needs to establish rules, which they'll begin to discuss at their January meeting. Assuming the earliest they might vote on rules would be at their next quarterly meeting, more likely even later, new rules won't be in place until, at the earliest, next fall to consider pending business.

Steve Saloom of the national Innocence Project said at a press conference after the hearing that the commission's enabling legislation does not authorize it to create rules. He later elaborated that former Chair Sam Bassett asked the Attorney General's representative who attended every FSC meeting whether or not they should create written rules, and the AG said they weren't authorized to do so. The reason, said Saloom, was that "The Legislature didn't want to create a behemoth bureaucracy. They wanted it to be composed of experts, and they wanted it to be lean."

Saloom added, "Does [Mr. Bradley] want to add a layer of bureaucracy? ... or is he just doing this to stall?" Whatever his intent, there can be no argument that the outcome is to stall.

Despite the obvious delaying tactics, the good news was that no one on the Senate committee seemed sympathetic with Bradley's request to create exceptions to the Public Information Act for FSC investigations, much less allowing the commission to meet in secret. Whitmire said his intent in authoring the bill was for the agency to be "very transparent, very public." Even Sen. Dan Patrick told Bradley he wants to see "transparency in all the work that you do."

Sen. Whitmire made a point that I brought up yesterday on Grits - the commission's role is to examine the science, not investigating and punishing individual wrongdoing like a law-enforcement or regulatory agency. Oddly enough, Bradley agreed (!), but it's easy to say so when his actions contradict that sentiment: Bradley told the committee he'd asked the Texas Rangers to suggest secrecy standards for investigations, even though the commission is investigating science, not necessarily criminal conduct. As the Houston Chronicle's Rick Casey pointed out, "the job of the commission is to investigate science, not crime. The investigative procedures for that should be developed by forensic scientists, not members of a police agency that will be subject to the commission's review."

Sen. Rodney Ellis gave out some data on arson cases I hadn't heard before: He said 742 people are currently locked up in TDCJ for arson, with 275 per year on average convicted statewide on felony arson charges. Ellis said there's no way to know right now if state of the art arson science had been used in all of those cases. (The short answer is: probably not, especially the farther back you look.) According to insurance industry data, Ellis said, about 43,000 fires per year nationwide result from arson.

Overall, the committee appears committed to increasing oversight of the FSC and making sure Mr. Bradley doesn't succeed in making the agency secretive and unaccountable. Of all the comments from senators, perhaps the most telling was one of the most low-key from Sen. Glen Hegar, a Republican who told Bradley he took the Senate's role confirming Governor's appointees "very seriously" and reminded him that they'd all be watching. I took away from the hearing that there's a bipartisan consensus on the committee, at least for now, that Texas needs to confront bad forensics instead of bury the problem under a mountain of bureaucracy, procedure and doublespeak. Mr. Bradley, by contrast, appeared to be promoting quite a different agenda. Time will tell how it all plays out.

When bringing Christianity into the jury box, bring all of it

I've ignored until now a Texas case receiving international notoriety in which jurors consulted some of the more punitive verses in the Christian Bible during deliberations in a death penalty case. It's been getting wide play elsewhere because it hits on two culture-war touchstones - the death penalty and church-state separation - that this writer finds boring, dull and repetitive.

However, this morning I ran across an angle on the case that interests me more. Scott Greenfield at Simple Justice has a post on the case, describing how the 5th Circuit agreed the scripture constituted an "external influence" on the jury but concluded that "under the "highly deferential standard" by which federal courts should review state court decisions, [the defendant] had failed to prove that he had been prejudiced by this unconstitutional juror conduct." SCOTUS recently declined to hear the matter, so the Bible-influenced verdict stood and the defendant was executed last week. A commenter at Simple Justice, Wayne Clemons, points out that:

Reading a few verses down, the jury would have found:

"Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness."

It's not just murder, of course, for which the Bible would require mulitple witnesses: "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." (Deuteronomy 19:15)

It's funny (and not ha-ha funny) how those most aggressively positing a biblical, scriptural basis for capital punishment often appear unconcerned at such biblical due process niceties.

Recently I wrote about a capital murder case in which the only evidence against the defendant was a jailhouse snitch and a scent lineup by Fort Bend County Sheriff's Deputy Keith Pikett's dogs. So I guess that's two witnesses, if you count the dog. But really it's none, since the snitch didn't actually see the crime and was compensated by the state with official leniency for his testimony.

In reality, our judicial system simply does not require proof "beyond a reasonable doubt," even if that's the hackneyed catch phrase with which juries are instructed - not when a jailhouse snitch and an accusation from a dog can get you a capital murder conviction (thankfully in that case the jury gave sentence of life without parole). Until Texas became one of the only states to change its law (in 2001), thousands of drug defendants were convicted based solely on the testimony of an undercover snitch, many of them by drug task forces like the ones memorialized in book and film in Tulia and Hearne. In non-drug cases, that's still legally enough to convict.

The real, workaday standard of proof typically employed in criminal cases is closer to what lawyers would call a "preponderance of the evidence" - based on the evidence heard by the jury, guilt is more likely than not, but by no means certain. That's about all you can say about a case made on testimony by a jailhouse snitch and a dog. There's absolutely no way under those circumstances that all "reasonable doubt" could be extinguished. Ditto for the Tulia cases, where testimony from one lying cop was enough to convict some three dozen people.

Courts routinely allow convictions based on a single eyewitness' identification, even when the witness had never seen the defendant before the encounter. But research shows the error rates in such identifications are unconscionably high, particularly when police don't use best practices and contaminate eyewitness evidence during a lineup.

As I said in the comments at Simple Justice, "It wouldn't matter if you kept the Bible out of the jury room. Folks who believe strongly that way can quote chapter and verse." But I also lamented "that VERY few Christians emphasize the 'two or three witnesses' requirement as strongly as the 'eye for an eye' stuff," even though "for Christians, the New Testament retains the former and rejects the latter." (See this discussion.)

I don't kid myself that jurors won't bring their religious beliefs with them into the courtroom - including those who believe in biblical infallibility, whose number in Texas are not insignificant. But I wish when that happens, Christian jurors would focus as much attention on the Bible's insistence the right person be punished as they do on Old Testament penalties.

RELATED: Three guys who couldn't be on a Harris County jury: Moses, Jesus and the Apostle Paul

Reducing forensic backlogs source of rare agreement at hearing

At the Texas Senate Criminal Justice Committee hearing today on the Forensic Science Commission, the only reform that new commission chair John Bradley truly sounded enthusiastic about was reducing backlogs at crime labs, so I was interested to see this report out today from CBS News analyzing backlogs in various states. Here's their excerpt about Texas:

At the state lab at the Texas Department of Public Safety there are 1,433 sexual assault kits on open, active cases waiting to be tested. In Houston there are 462 rape kits waiting for preliminary testing to see if there are any biological stains, and 237 kits waiting for DNA testing. The oldest kits date back to 2008. There are also 3,846 kits in storage that have not been tested.

A Houston Police Department spokesman told CBS the kits have not been tested because the kits are taken from victims where the identity of the suspect is not in question, where the department is not pursuing prosecution or the kits are provided by victims who later recanted.

On average in San Antonio the turnaround time for rape kits is 15 to 20 working days according to the San Antonio Police Department at a cost of $315 per kit. The department tells CBS they have 5,191 untested rape kits in storage.

Secrecy at forensic commission not justified based on weak investigative powers

I'm headed up to the capitol a little later this morning to watch the Texas Senate Criminal Justice Committee hearing on the Forensic Science Commission at 10 a.m., where new commission chairman and Williamson County DA John Bradley will explain to the committee why he shut down all commission activities immediately upon his appointment and henceforth wants to operate in secret. (Go here for a live feed of the hearing and a press conference by Sen. Rodney Ellis afterward.)

The Fort Worth Star Telegram has a preview story this morning about the hearing, quoting Sen. John Whitmire saying the FSC could emerge from this controversy stronger and more effective than ever. I hope so. At the same time, Bradley is already making obfucscatory claims that make me think his agenda is to conceal the truth and avoid debates over faulty forensics instead of encouraging reform. For example, he told Texas Lawyer recently:

“It’s not a good idea to conduct an investigation in a public forum,” Bradley says.

Other agencies that have an investigative function, including those in law enforcement, are protected from the Texas Open Meetings Act and the Public Information Act during their deliberations, Bradley says. When investigations are conducted in public, it is difficult to protect them from outside influences, he says. ...

“The commission’s work is focused on investigating and then deliberating on allegations of negligence and misconduct in the forensic science field,” Bradley says.

Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says.

Bradley is confusing the FSC with agencies that investigate individuals on allegations of negligence or misconduct. But this is a horse of a different color. Bottom line: The Forensic Science Commission is not a regulatory agency and has no power to punish anyone. Nobody's due process rights are implicated the way they are, say, when a police officer is investigated by Internal Affairs. The FSC exists to investigate the validity of forensic science and lab practices in Texas and encourage public debate, not to indict or accuse individual actors. It is weak by design, largely because Governor Perry opposed giving it any real power.

Mr. Bradley's excuses for seeking secrecy at the FSC don't hold water. Agencies like the Judicial Conduct Commission that evaluate specific allegations against individuals and have authority to punish them may justifiably maintain secrecy throughout their investigation, but the FSC possesses none of those types of powers. It's simply not a valid comparison.

Investigating people may justify secrecy. Investigating science requires openness.

RELATED: See a Dallas News editorial outlining their hopes for today's hearing.

UPDATE: I'll write up today's hearing tomorrow morning, but in the meantime here's some of the initial MSM and blog coverage:

• CNN: Texas execution probe won't be 'hijacked," new chairman says
  
• Dallas News: New head of Forensic Science Commission says he'll protect panel's integrity
• Texas Tribune: Forensic Science chairmen face off
  
• TPM Muckraker: Perry appointee in no rush to wade back into Willingham case
  
• Dallas Observer: In which Texas Forensic Science Commission chair calls out those with "agendas"
• The Contrarian: The Willingham Hearing
  
• Burnt Orange Report: John Bradley to serve as Rick Perry's puppet on Texas Forensic Science Commission

MORE:

• Houston Chronicle, R.G. Ratcliffe: Forensic panel's new chief says he's not pawn, and Rick Casey: New clues for forensic panel.
• Austin Statesman: Forensic comish needs rules
• See coverage from KXAN Austin.
• Daily Texan: Senate grills forensic science chair
• Dallas News Trailblazers blog: See competing contradictory written statements from Bradley and Sam Bassett
  

Texas Association of Counties says constables still needed

Here's a dissenting institutional view on constables, received via email:

Scott Henson
Grits for Breakfast

Sent by e-mail

Dear Scott:

Consider this an old-fashioned letter to the editor, regarding your recent on-line question about the abolition of constables in Texas. You should first understand that Texas’ 254 counties are too varied to paint one brush stroke across them all, such as abolition of all constables.

Besides, democracy’s way of weeding out officeholders whose constituents are not happy with them is at the ballot box. Also, commissioners courts may withhold budgets if they believe other officeholders are not doing the job expected.

Constables are constitutionally authorized peace officers who perform a myriad of important law enforcement functions. They are the first link in a county's chain of law enforcement. They have the same arrest powers and duties as city police and sheriffs, along with the added responsibilities of serving as judicial officers and executing civil process for the courts. They subpoena witnesses, act as bailiffs and execute judgments.

In large metropolitan counties, constables may perform patrol functions to alleviate the burdens on other law enforcement agencies. They may make criminal investigations. They may operate truancy programs and disabled parking enforcement. They may be heavily involved in family law services, including serving process in cases of divorce, child support enforcement and domestic violence.

Hence, the conclusion that Texas doesn’t need constables is wrong. It overlooks the significant contributions constables make to the overall effort to reduce the effects of crime in their communities. Constables are important cogs in the law enforcement wheel of Texas, and they need to remain such.

Sincerely,

Elna Christopher
Director of Media Relations
Texas Association of Counties
Austin, Texas

None of that explains to me why many of those duties aren't redundant with other agencies or why taxpayers wouldn't benefit from streamlining administrative functions and subsuming constables into county sheriffs. Where constables stick to process serving and acting as court functionaries, it's less of a concern. Where they want to establish competing law enforcement agencies alongside the Sheriff and local police departments, to me that improperly pads costs paid by taxpayers and creates too many accountability problems.

Hampton challenging Keasler for CCA slot in 2010

Keith Hampton, a veteran appellate lawyer and chair of the legislative committee for the Texas Criminal Defense Laywers Association, has announced his candidacy for the Texas Court of Criminal Appeals, lining up to run against Michael Keasler. Here's Hampton's campaign website.

I've had my differences with Keith but he'd be an overwhelming improvement over Judge Keasler, if only to add some balance to the range of opinions on the court.

Like J.R. Molina in 2006, I predict Hampton will receive more votes than the Democratic candidates for either governor or senator - not because of his own popularity but because the Court of Criminal Appeals is so widely disdained. Whether that will be enough to put Keith over the top depends on big-picture electoral dynamics he likely cannot influence. But at least he'll be in a position - like Craig Watkins in the '06 Dallas DA's race - to capitalize on serendipitous electoral trends if things happen to break just the right way. Dems have a better chance of capturing these seats IMO than they do senator, governor, attorney general, or any of the higher profile races on next year's ballot.

UPDATE: From the Austin Chronicle: Hampton for Judge

RELATED:

• Meyers, Keasler, should be Dems CCA electoral targets
• Court races will be spearpoint of Texas Dems' future statewide success
• Expect judicial races to top Democratic vote getters
  
• Less money needed for Dems to target CCA, judicial races

Death penalty deterrent evanescent, symbolic

A couple of readers asked my opinion of a column over the weekend in the Houston Chronicle by Rick Casey ("A murder mystery by the numbers," Nov. 7) analyzing estimates of the death penalty's deterrence value. Here's the bottom line regarding the results of the latest, greatest academic study of Texas-specific data:

They found that many earlier studies had vastly overestimated the effect, but the number of murders did go down in the short-term aftermath of executions.

Based on two different statistical models, they found the effect in the months after each execution to be a reduction of between 0.5 to 2.5 homicides.

That may not sound like much, but as the authors note, “even the estimated .5 deterrent per execution yields an estimated reduction in the expected numbers of monthly homicides of 5 to 10 during the subsequent 12 months, which is substantial.”

I'm sure this isn't the last word on the issue. That's no mystery. Here's the mystery:

This study and previous ones show no correlation between the amount of publicity executions receive and their deterrent effect.

“We have no theory on that,” Teske said on Friday. After a few more questions, he said, “I hear your frustration. If I wasn't working with one of the top guys in the nation, my confidence would be shaken.”

One other mystery: The study shows, as other studies have, more impact on the kinds of murders that don't qualify for the death penalty than on those that do.

So to recap, the study purports to find a deterrent effect in the immediate aftermath, even if no one knows about the execution, and it mostly "deters" people from other kinds of murders.

In my experience, the death penalty's deterrent effect is a lot like the existence of God - you believe in it if you need to believe in it, but it cannot be proven or disproven by available data in a way that will satisfy the culture warriors on either side.

Let's face it: If the death penalty seriously deterred, then Texas as the nation's execution leader would surely see the greatest reduction in murder rates nationally. But our murder rates, though declining, remain above the national average (in line with other southern states), so clearly other factors are more determinative.

In general, people believe harsh penalties deter misbehavior more than they do. (As Mark Kleiman's new book points out, certainty and immediacy of punishment are much more important.) After the Texas Legislature made stealing even the smallest amount of scrap metal a felony, total thefts skyrocketed thanks to the rising cost of copper. The resulting impact on crime from increased penalties is at best (to use a word I learned from Justice Alito this week) evanescent.

It doesn't really matter if the death penalty deters or not because its greatest importance is as a symbol, pro and con. Neither side will budge an inch no matter what this or that new study might find, and the broader public seems profoundly unmoved, as well - at least until the day an individual voter must enter a jury box and decide an individual case.

The Gallup poll question generally cited to show public support for capital punishment asks, "Are you in favor of the death penalty for a person convicted of murder." Here is the data on that question over time - most recently, 65% of the public said they agreed that people convicted of murder should get the death penalty.

But that question comes at respondents completely detached from reality. In Texas, which is the acknowledged national death penalty leader, in FY 2007 we sent just 14 murderers to death row, while a whopping 1,078 entered TDCJ that year based on homicide charges. Even in the Lone Star State, the vast, overwhelming majority of murderers are not sentenced to death. When the question is presented to them directly, Texas' "death-qualified" juries usually don't impose the sentence. In 2007, out of 51 cases where defendants were convicted of capital murder, in 37 of them juries gave sentences of life without parole.

Juries are selected from voter rolls so there's a disconnect when 65% tell pollsters murderers should die but 72.5% of Texas capital juries fail to impose a death sentence. What that means, I think, is that the issue is more complex than it's presented by pollsters and people are smarter than such ill-informed, misleading questions can measure. When confronted with the real-world issues that surround killing by the state, juries balk more often than not, even in Texas.

I'm not inherently against the death penalty, though I certainly share fears that our sloppy justice system might convict and kill an innocent person. (Besides Timothy Cole, I mean.) I think death is an appropriate sentence for lifers who commit murders in prison - tacking on more years simply isn't a meaningful deterrent in that setting. Make me philosopher-king, and I also think it should be used only in cases (which is most of them) where the identity of the killer is not in dispute. At the same time, the cause of "saving" death-row offenders from a fate that awaits us all, when life without parole is the alternative, frankly fails to motivate me.

Perhaps there is some vanishingly small, short-term deterrent effect to the death penalty. Like the existence of a God that created man in His own image, I doubt it but won't rule it out. But in its current form, the death penalty is a political boondoggle and distraction involving a miniscule number of cases - a costly sideshow carnival act of the first order that distracts from more important discussions. Any legitimate cost-benefit analysis would find death-penalty deterrence doesn't measure up compared to underfunded but less-expensive programs that would save more lives and do more to reduce crime and deaths.

Death penalty cases easily can cost the county bringing them upward of $1 or $2 million each before they're said and done. (It'd be easier to justly complain about that cost if Texas didn't screw up so many cases - it literally doesn't matter if the judge slept with the prosecutor, our Court of Criminal Appeals will sign off on the execution.)

Would that money do more to promote safety if, for example, it were used to reduce community supervision caseloads or pay for ignition interlock devices on the cars of recidivist drunks? Almost certainly. But the details of misdemeanor probation conditions are boring things to debate compared to the death penalty, where everyone gets to claim the moral high ground, look down their noses, sneer, and accuse one another of "bias." That's all a lot more fun (and politically useful, one supposes) than prioritizing criminal justice spending on programs that demonstrably reduce deaths and crime.

Most Grits readers say get rid of constables

Last week Grits posed this question in a reader poll: "Does Texas still need constables in the 21st century? A whopping 67% of you said "No." Another 22% wanted to keep them and 9% weren't sure.

Count me among those who believe constables should and ultimately will go the way of the county inspector of hides and animals. They're anachronisms, even if for the moment in the bigger counties they're often also well-funded sources of law-enforcement pork that duplicate larger agencies' capacity, if frequently in a less regulated or professional environment. They're also bottom-tier elected officials, which is enough to receive deference from the political establishment in both parties when their power is challenged. Even where they work as they're historically supposed to, constables require duplicative supervisory and administrative staffing and counties would probably function better if those duties were subsumed by the Sheriff.

Most Texas constables stick to their traditional duties, but in larger jurisdictions they've become mini-police departments. A series of recent items from the Dallas News underscores how little oversight these agencies receive compared to their often dramatically expanding budgets:

• Dallas News: County and state should rein in constables
• Watkins seek court order to halt Dallas County constable investigation.
• Dallas constables dog at center of new debate.
• Dallas constable challenges investigation; staff allegations can't be ignored, officials say
• Dallas County constables' growing ticketing said to boost safety - and county coffers
• With little scrutiny, Dallas County constables have turned offices into de facto police departments

Meanwhile, from a couple of weeks ago we find a related debate occurring in Travis County, where commissioners expressed discomfort with the expanding role of constables in an Austin Statesman story from Oct. 20, "Constable vehicles fuel debate," wherein "County Judge Sam Biscoe said that law enforcement "should not be the primary responsibility of the constable's office. That's why we have a sheriff and about 300 law enforcement deputies.'" Bingo!

It sounds like Biscoe and Commissioner Sarah Eckhardt are asking the right questions about constables' request to outfit them with more militaristic equipment like Sheriff's deputies. After the episode where a deputy constable tasered a 72-year old great grandmother because she dared him to, Travis County constables ought to be treated like Barney Fife - given a single bullet apiece and told to keep in in their shirt pockets until ordered to take it out.

I fully understand why county commissioners in Dallas and Travis think constables need to be reined in. The Statesman story included this telling comment: "Travis County Sheriff Greg Hamilton earlier criticized Bieze's actions in the Taser incident. On Monday, Hamilton declined to comment on the role of the constable, but Travis County sheriff's spokesman Roger Wade said: 'According to the (Texas Code of Criminal Procedure), the only difference (between the sheriff and constable) is the name.'" That's technically true, if also somewhat troubling. Perhaps it's something the Legislature should take a stab at rectifying sooner than later.

Stephen Colbert on prison privatization

In case y'all missed it last week, here's Stephen Colbert's recent take on prison privatization:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
The Word - The Green Mile
www.colbertnation.com
Colbert Report Full Episodes Political Humor U.S. Speedskating

Just to have said it, the preposterous notion of Arizona selling its prisons then leasing them back from the buyer to solve short-term cash flow problems ranks among the most irresponsible government schemes I've ever heard of from the taxpayers' perspective. Do the math yourself - there's a fundamental economic reason people choose to buy their homes instead of rent them. It's a lot cheaper in the long run. And for better or worse, governments are in it for the long run.

For more recent private prison news check out the blog Texas Prison Bidness.

Bradley seeks closed meetings, records for Forensic Science Commission

I know, gentle readers, you will all be shocked to learn what Williamson County District Attorney John Bradley thinks Forensic Science Commission investigations should be secret and closed to the public. That suggestion tops the list of things he'll propose next week to the Texas Senate Criminal Justice Committee, according to an informative article by Mary Alice Robbins at Texas Lawyer. Bradley suggests:

• Making investigations secret and meetings about them closed.
• Re-education of commissioners: "Bradley says that when people act as investigators and judges, they typically should have some background in that work. Most members of the commission don’t do investigative work and need training, he says."
• Lengthening terms for commissioners. (No word why the governor couldn't just reappoint if continuity is so important.)
  
• Creating new rules and procedures for the commission (no detail).
• "Clarifying" whether the commission has authority to investigate the Willingham case. (He seems unwilling to take his former boss Sen. John Whitmire's word for it.)
  

Hardly anyone attends FSC meetings - at the last one in Houston not a single media member showed up, including this blogger - so the secrecy request can only be a reaction the Willingham uproar, which was raised to a national issue with Bradley's abrupt appointment by Governor Perry to chair the FSC and his subsequent decision to cancel all commission activities. What's more, Bradley thinks the public shouldn't get to know what taxpayers bought for $30K from the expert hired to advise the commission - a proposition that seems like a really big stretch, to me, anway.

On the bright side:

Bradley says, “I do plan to recommend that the commission move forward and complete a report in the Willingham case. I think it’s in the best interest of the public to have the report come out.”

Don't look for that to happen before the March Governor's primary, though, and maybe not until after next year's general election, if I had to guess. What's more, I'd be willing to bet it won't look much like the version that was released by Dr. Beyler. Perhaps I'm too cynical, but this appears to be a straight up case of politics trumping science.

E pur si muove

UPDATE (11/8): Check out a lengthy profile of John Bradley from the Austin Statesman.

A "perverse" position on prosecutors fabricating evidence ... by the Obama Administration

Wednesday the US Supreme Court held oral arguments on an important case regarding prosecutorial misconduct, where prosecutors sought absolute immunity when they fabricate evidence to frame a defendant if the information is used at trial.

In looking at the transcript (pdf) from Pottawatamie County v. McGhee, it was a bit of a shock to read Neal Katyal, the attorney representing the Obama Administration, tell the court that if a prosecutor knows a police officer fabricated evidence and puts it on at trial, there is not a Fifth Amendment due process violation (p. 20) !! That's change we can believe in, baby! Yikes!!

Having earlier previewed the case on Grits, I wanted to point readers to some of the initial coverage in its aftermath and offer some initial thoughts:

• NY Times: Justices, in aftermath of two murder cases, hear claims of a process gone wrong
• Christian Science Monitor: Supreme Court appears split on tackling rogue prosecutors
• SCOTUSBlog: Rethinking prosecutorial immunity?
• Time magazine: When is it legal to frame a man for murder?
• NPR: High court ways prosecutors' immunity
• Dahlia Lithwick, Slate: The Framers on the framers
• Durham in Wonderland: Pottawatamie County and Nifong
  
• Section 1983 Blog: Pottawattamie County v. McGhee Oral Argument Transcript
  
• Preaching to the Choir: Supreme Court Bizarro World
  
• John Terzano, Huffington Post: Prosecutors must be held accountable for misconduct
• AP: Court worried about stifling prosecutors

Here's a link to the transcript (pdf) from Wednesday's oral arguments and a link to the SCOTUSWiki page.

The Obama Administration's postion before the court was to reject the idea that US citizens have "a free-standing due process right not to be framed," according to Katyal. Justice Stevens dismissed that declaring, "There is no free-standing right. There is just a right not to convict a person with made-up evidence," adding:

of course a prosecutor insofar as he's involved in the prosecutorial stage is absolutely immune. But if he's involved in the investigatorial stage of that event, well, then he's not immune absolutely. That's a policy decision. That has nothing to do with free-standing rights.

Katyal insisted to the court that while a policeman or even a prosecutor who fabricated evidence in the investigative stage of a case only had qualified immunity, if the same prosecutor put the fabricated evidence on at trial, they would confer upon themselves absolute immunity for the act - an outcome Stevens referred to as "perverse." Yes, that's right, one of the liberals on the US Supreme Court - the Justice President Obama is most likely to replace next, in fact - called the Obama Administration's doctrine of prosecutorial exceptionalism "perverse." Chew on that for a moment, Democrats.

I also thought it was interesting that Justices seemed fairly dismissive of the effectiveness of other sanctions against prosecutors. Sotomayor referenced "numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage."

Finally, to the handicapping. From the Christian Science Monitor to the Section 1983 Blog, most folks predict the vote will be close. Just from reading the transcript, I'm not sure I agree. I'd predict near-certain defeat for the prosecutors and the Obama Administration - the question is, what will defeat look like? Several comments from key justices left me with that impression.

Notably, at one point Justice Breyer asked McGhee's attorney, "what is the most safe rule that will allow you to win your case?" The answer to that question IMO will probably end up being the court's decision. Breyer also seemed to reject the prosecutors' cagey technical arguments why they couldn't be liable for pretrial behavior: "I don't see a conceptual problem," he said, "Maybe there are practical problems, but I don't see a conceptual one."

Justice Kennedy is usually the swing vote on the court and oft-considered the body's bellwether. He was the first justice to ask a question of Pottawatamie County's attorney. In its entirety, his question was, "Your -- your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons. ... I mean, we were just spinning our wheels in that case?" He later summarized the prosecutors position as "the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition." That doesn't sound to me like a man who is inclined to side with the target of such jabs (though of course all such prognostications at this point are mere speculative tea-leaf reading - hey, this is a blog).

Based on what was said at oral argument, I think they could and likely will easily find a (probably narrow, incrementalist) answer to Breyer's question that sides with McGhee and pulls in Breyer, Ginsburg, Stevens, Sotomayor and Kennedy, at which point I wouldn't be surprised to see Scalia and perhaps even Chief Justice Roberts hop on board, just so they'll have some influence over the opinion and avoid a bad vote. Even though justices seemed sympathetic to the practical concerns raised by prosecutors, they all seemed reluctant to grant an official green-light for prosecutors to frame innocent people. If I were a betting man, I'd wager they don't want to put their official imprimatur on such a "perverse" position, even if inexplicably the Obama Administration is willing to do so.

More detail on scent lineup case headed to Texas CCA

A helpful reader points to a December 2007 article from the San Jacinto County Times about the case of Richard Lynn Winfrey, Sr., which was accepted this week by the Court of Criminal Appeals for purposes of evaluating scent lineup evidence. Here's the description of the case against him, including vastly overblown claims by prosecutors about the reliability of dog-scent lineups:

Winfrey was charged with capital murder but since the missing guns were never recovered the jury had a reasonable doubt as to whether the murder occurred in the course of committing robbery and convicted Winfrey on the lesser included offense of murder.

“This trial has shown that canine scent evidence, which has been upheld by appellate courts as reliable scientific evidence is as powerful as DNA evidence to support a conviction,” [San Jacinto County Criminal District Attorney Bill] Burnett said.

“The FBI is comfortable using Fort Bend County Deputy Keith Pikett’s dogs and canine scent evidence and I, as a Texas prosecutor, support the use of canine scent evidence to help bring criminals before the bar of justice.”

Giving the court his qualifications as well as the qualifications of his four canines, Pikett said he conducted two scent lineups – one in August of 2004 in San Jacinto County and one in August of 2007 near Bellaire.

“Quincy and Jag, registered bloodhounds, were used in 2004,” Pikett said. “Quincy has ran 976 felony trails, participated in 107 lineups and done 1,480 scent pad cases and wrong only two times on the scent pad lineups.” Pikett blamed himself for the two errors. He said Jag has been on 356 trails, 413 scent lineups and never proven to be wrong.

He said he has two other dogs, James Bond and Clue. James Bond has been on 279 trails and 964 scent pad lineups and never wrong, while Clue has been on 92 trails and 406 scent pad lineups and never wrong.

During the 2004 scent lineup, two of Pikett’s dogs alerted on scents from Richard Winfrey Jr. and Megan Winfrey.

The second scent lineup was conducted in August 2007, three years after the first, using scent pads from Burr’s clothing and Richard Winfrey Sr. At that time, Quincy and Clue both alerted on Richard Winfrey Sr., Pikett said.

Concluding a series of witnesses called by Burnett was David Wayne Campbell, 44, who is currently completing his sentence in the Federal Detention Center, Houston. Testifying last Thursday, Campbell said he knew Richard Winfrey Sr. while they were incarcerated in the Montgomery County Jail. Campbell said he overheard Winfrey describe a murder in San Jacinto County and how it occurred.

Interestingly, to judge by comments in the New York Times Wednesday, the FBI now isn't as supportive of scent lineup evidence as it was two years ago when Mr. Winfrey's case went to trial. Here's how they described the reliability of the tactic:

Thomas Lintner, the chief of the F.B.I. Laboratory’s evidence response team unit said that the bureau has been using scent dogs to link people to crimes for four years as an “emerging technology” and works under carefully controlled conditions using “scent transfer units” that vacuum air across pads with minimal contamination. Even then, the F.B.I. restricts the uses of the evidence produced by dogs.

“It’s a lead generation activity,” he said. “It’s not something we’re going to take to court and say, ‘we need to indict this guy.’ ”

It doesn't sound to me like the FBI would back up Pikett's claims of reliability for his dogs if anyone had asked them, but that's what the jury heard from San Jacinto County prosecutors, for whom Pikett's dogs are "as powerful as DNA evidence to support a conviction." Unreal.

In closing arguments at trial, Winfrey's attorney described the array of evidence presented against his client - Pikett's dogs and a jailhouse snitch:

You’ve heard information about a crime that took place but no evidence. The medical examiner told you about wounds but no evidence to tell you who caused those wounds. Texas Rangers said there were no signs of forced entry. Burr’s house was cleaner than my house and nothing out of place. Nothing was in disarray. Nothing to indicate a struggle or robbery. There was no evidence of guns being stolen or nothing else taken. If you don’t find robbery you can’t find capital murder. There was no evidence of a robbery at all and you can’t find capital murder,” Taylor told the jury.

“Inside the house there were no prints, no one else’s blood at all and none outside. There is nothing at all to tie Richard Winfrey Sr. to Burr’s trailer – no eye witness, no DNA, no woman to match pubic hair, died red hair found. There was nothing found to tie any of the three Winfrey’s to the scene. And there was nothing found that could be traced back to Burr in the Winfrey’s possession,” Taylor said.

“Winfrey told Campbell of things he had heard two years after Burr’s death. Winfrey didn’t admit to the crime. There is absolutely no evidence of a robbery. Nothing missing except a Bible and we’re not sure of that. Dogs and Campbell’s testimony are the only things you got. You have a tough task ahead of you,” Taylor said.

There are a number of patterns that recur in recent Texas DNA exonerations, and one of them is that a single error is seldom enough to convict an innocent person, but it's much more likely to happen when two unreliable sources of evidence are combined - particularly when there's no other corroborating evidence.

That appears to be the case here, to judge by this media description. Overestimating the value of bad forensics and a jailhouse informant could easily have combined to convince jurors an innocent man was guilty. I don't know for sure this is an actual innocence case, but it has many of the earmarks. The defendant has steadfastly maintained he didn't do it.

That's all good news in terms of how the CCA will likely view the petition to evaluate scent lineup evidence. If there were other significant evidence against Winfrey, some judges on the court would be tempted to overlook flawed forensics as harmless error. But in this instance, the paucity of evidence casts the harsh spotlight squarely on Deputy Pikett, and for reasons described in the recent Innocence Project of Texas report, I suspect his methods won't survive close examination.

While a Houston appeals court had earlier approved of Pikett's dogs - a case where Pikett allegedly misrepresented his academic credentials on the stand - this is a case of first impression for the CCA. They can more or less start with a clean slate. While some commenters have expressed (justified) skepticism that Judge Keller and Co. will do the right thing, I remain hopeful, in part because I don't think the court would have accepted the case if there weren't five judges inclined to disfavor scent lineup evidence. We'll see soon enough.

Travis County jail expansion results in few new beds

Travis County opened a massive new jail wing last week with 1,336 beds, though those will mostly replace so-called "variance" beds that the state Commission on Jail Standards previously authorized with temporary waivers to accommodate of jail overcrowding. (The daily newspaper didn't cover the story, though it got some play on local TV news.) Oct. 28 was the grand opening for Building 12 at the jail, which is reportedly the largest such unit in Central Texas.

I spoke yesterday with Maj. Darren Long who's in charge of the jail for more details about where Travis stands.

He told me a total of 817 "variance beds" at the jail will be eliminated over the next five months as they open up different pods in Building 12. An additional 336 beds will be eliminated by closing a number of smaller units on the campus, according to the TCSO. That's a total of 1,153 out of the 1,336 "new" beds that are simply replacing old ones that will be taken out of service, so at the end of the day the total capacity expansion will be rather minimal: Just over 180 new beds, according to these data.

Long said another 384 beds will be temporarily mothballed and left unstaffed, but will remain available for use in peak summer months. The total cost of all the improvements came to $72 million, he said.

To tie a bow on this story, I should mention that, in the run-up to the bond election where Travis County voters approved this expansion, County Judge Sam Biscoe wrote to Grits that:

Unfortunately, the new beds under discussion contain very few additional beds. Almost all of them are replacement beds. Here's the explanation: in addition to the 575 variance beds, another 888 new beds are to replace beds that are in "poor" condition. Thus, construction of a total of 1463 beds without a net gain of a single bed. The 888 old beds do not have to be replaced, but something must be done to address life and safety issues, which will cost a substantial amount periodically and requires the continued use of an old and inefficient system.

(Maj. Long disputed the "poor quality" characterization, FWIW, saying all beds met TCJS standards.)

When Travis County issued these bonds, I opposed them at the ballot box in part because I didn't trust that the county would actually replace old beds, instead fearing they would simply take the opportunity to expand overall capacity. That concern now appears to have been unfounded. It's true the number of what Biscoe called "poor quality" beds being decommissioned was reduced, but the number of "variance beds" eliminated somehow increased, so the overall outcome is at least within the ballpark of what Biscoe suggested.

Maj. Long also mentioned that one of the decommissioned buildings formerly housed the county's work-release program, which was eliminated earlier this year in an effort to reduce jail overcrowding. Under the old work release program, inmates would come into the jail, stay at night, then leave to go to their job, also spending weekends in the jail.

In its stead they've created the Sheriff's Weekend Alternative Program (SWAP), in which folks check in on Saturday and Sunday, work 8-5 on county supervised projects like picking up trash, etc., but they don't stay there - they get to go home at night. Long said the change was made because the work-release program dealt with very low-level misdemeanors where safety was of little concern - after all, the inmates were being released every weekday, anyway.

TCSO public information officer Roger Wade told me the Sheriff believes the county needs more jail beds in the near term, but I continue to believe Travis County doesn't need to expand jail capacity, particularly in light of Long's assertion that 88% of Travis inmates are sitting in jail awaiting trial. If that's true, there's plenty of room for pursuing other alternatives before launching into more jail building. Indeed, that was sort of my point when Grits opposed the jail bonds four years ago: I thought, and continue to think, that the county should focus on diverting petty offenders from the jail and reducing unnecessary pretrial detention instead of immediately turning to construction as the cure for all ills.

Texas Court of Criminal Appeals will hear arguments on dog-scent evidence

Thanks to an attentive commenter, I learned that just yesterday the Texas Court of Criminal Appeals agreed to hear a case out of San Jacinto County that calls into question the validity of dog scent lineups.

09-0987 WINFREY, RICHARD LYNN, SR., SAN JACINTO, MURDER

1. An important question implicating the administration of justice is presented by the Court of Appeals' reliance upon a dog scent lineup to sustain the legal sufficiency of the evidence without regard to the inherent limitations of such evidence.

2. An important question implicating the administration of justice also is presented by the Court of Appeals' failure properly to evaluate the factual sufficiency of the evidence by addressing the inherent limitations of dog scent lineup evidence.

This is absolutely excellent news, and I'm quite looking forward to hearing oral arguments in the case. As somebody who has frequently criticized the CCA, let me be the first to commend them for taking up this matter. For once, I'm proud of them for stepping up to the plate. It's pretty clear law enforcement won't stop on their own.

Meanwhile, the Houston Chronicle today has coverage of the three new civil lawsuits challenging dog scent testimony. And Jacob Sullum of Reason addresses the myth of the infallible police dog.

It's the judiciary's job to keep unreliable forensics out of the courtroom, but until now the CCA treated the issue as a task for the Legislature or some other body. (For example, the court's Criminal Justice Integrity Unit called on the Lege to reform eyewitness ID practices among police, but the court could easily require such changes themselves if they cared to do so.) Perhaps dog scent lineups will be the watershed moment when the court realizes it needs to more seriously vet unreliable forensics and can't just rely on old precedents approving invalid science.

UPDATE: Via the Texas Court of Criminal Appeals Blog, "Here's a link to the court of appeals opinion (published). Here's a link to the court of appeals info."

Reduce pretrial detention to stave off jail overcrowding

I had a conversation with someone today at the Travis County Sheriff's Office who was surprised to learn that Travis County has one of the highest rates of jailed pretrial detainees among large counties, so I thought I'd gather up the relevant data for comparison.

As described on this blog many times, the primary cause of overcrowding in Texas jails is excessive pretrial detention, particularly in the larger counties. Based on data from the Texas Commission on Jail Standards (pdf), here are the pretrial detention rates for Texas' six largest counties, along with the percentage of jail inmates who are misdemeanor defendants being held pretrial:



Throughout Texas, this has been the main cause of county jail overcrowding over the last few years. Dr. Tony Fabelo has calculated that while overall jail population increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. And counties like Travis incarcerating significant numbers of misdemeanants pretrial are exacerbating the problem.

As recently as 1995, pretrial defendants made up just 30.3% of Texas county jail populations, compared to 54% today.

Prosecutors like pretrial detention because it induces plea bargains, in some cases even from people who may be actually innocent. Judges tend to like it because it lets them appear "tuff on crime." Since neither judges nor prosecutors must raise anyone's taxes to adopt that stance, it's an easy position to take that passes off the difficult decisions about jail overcrowding to commissioners courts.

It's worth noting that the National Association of Counties recently put out a report titled Jail Population Management: Elected County Officials' Guide to Pretrial Services (pdf). I've not yet gotten around to reading this timely document, but its publication reinforces my sense that reducing pretrial detention is the best way to reduce overcrowding pressures in the near term.

UPDATE: According to Maj. Darren Long of the Travis County Sheriff, the data reported to TCJS understates how many defendants in the Travis jail are pretrial detainees. He said the Urban Institute just completed a study of the jail population which has not yet been published, but according to their draft report a whopping 88% of Travis County jail inmates are pretrial detainees! That's an astonishing number. I'll try to figure out the source of the discrepancy in the coming days and report back.

Prison Legal News sues TDCJ over book censorship

I just received this press release via email:

Prison Legal News – For Immediate Release

November 4, 2009

PUBLISHER SUES TEXAS DEPT. OF CRIMINAL JUSTICE FOR CENSORING BOOKS

Corpus Christi, TX – Prison Legal News (PLN), a non-profit monthly publication that reports on criminal justice-related issues, filed suit today in federal district court against Brad Livingston, Executive Director of the Texas Dept. of Criminal Justice (TDCJ), and other TDCJ officials.

According to PLN’s complaint, TDCJ has inappropriately censored books sent to Texas state prisoners. One of the censored books was Women Behind Bars: The Crisis of Women in the U.S. Prison System, by Silja J.A. Talvi. Ms. Talvi is an accomplished journalist and award-winning author. Her book on incarcerated women was described by one reviewer as a "comprehensive and passionately argued indictment of the inhumane treatment of female prisoners ... the sort of shocking expose too seldom seen in these media days of so much celebrity fluff." Two other Texas prisoners also were not allowed to receive Women Behind Bars after placing book orders with PLN.

PLN contends that the censorship of Women Behind Bars, which was upheld by senior prison officials, was improper. Further, the TDCJ did not notify PLN of the censorship decision which would have provided PLN an opportunity to respond and contest that decision.

TDCJ staff also censored another book ordered from PLN, The Perpetual Prisoner Machine: How America Profits from Crime, by Joel Dyer, on the basis that the book mentions "rape." In fact, as PLN explains in its federal complaint, Perpetual Prisoner Machine "quotes from a 1968 Philadelphia District Attorney’s Office investigation into sexual assault in prison, and describes crimes committed against prisoners." Again, the TDCJ did not notify PLN of this censorship.

"It is a sad commentary when government officials censor books sent to prisoners – particularly books that deal with prisoners’ rights and conditions in our nation’s prisons," stated PLN editor Paul Wright. "Apparently, the TDCJ prefers that prisoners remain uninformed about issues that directly affect them. We believe this is a poor rationale for censorship."

"For decades, Texas prisoners have had the right to read most books while they are incarcerated," said Scott Medlock, Director of the Texas Civil Rights Project’s Prisoners’ Rights Program. "If there is anything everyone should be able to agree on, it’s that encouraging prisoners to read is a good thing."

PLN is seeking compensatory, punitive and nominal damages plus declaratory and injunctive relief for violation of its rights under the First and Fourteenth Amendments, as well as attorney fees and costs.

The case is Prison Legal News v. Livingston, U.S. District Court (S.D. Texas, Corpus Christi Division), Case No. 2:09-cv-00296. PLN is ably represented by Scott Medlock with the Texas Civil Rights Project and by HRDC general counsel Daniel E. Manville in Ferndale, Michigan.

Prison Legal News (PLN), founded in 1990 and based in Seattle, Washington, is a non-profit organization dedicated to protecting human rights in U.S. detention facilities. PLN publishes a monthly magazine that includes reports, reviews and analysis of court rulings and news related to prisoners’ rights and criminal justice issues. PLN has almost 7,000 subscribers nationwide and operates a website (www.prisonlegalnews.org) that includes a comprehensive database of prison and jail-related articles, news reports, court rulings, verdicts, settlements and related documents. PLN is a project of the Human Rights Defense Center.

Hump Day Roundup

Here are several criminal-justice related items from the news that merit Grits readers' attention:

• Fort Worth may begin jury trials for red light camera tickets.

• TDCJ: Prisoner can't review books on sailing for pay.

• TYC employee accused of sex with 14-year old.

• Family says Sheriff shouldn't perform investigation of Dallas jail death.

• Edwin Colfax: How many more innocent people weren't so lucky?
  

• What's next: Dallas County constable investigation.

• Lawyer advising Big D commissioners court on constable investigation dies of swine flu.

• El Paso: Clean up county corruption is top mandate of ethics panel.

• State Rep. Terri Hodge planning re-election campaign as bribery trial looms.

• DPS officer resigns after assault allegations.
  

• Texas trooper pleads not guilty to steroids charge.
  

• Immigration agents mishandle informants.
  

• At Supreme Court: Can prosecutors be sued for framing defendants?
  

Ramshaw, Tribune tackle TYC mental illness discharges, restraint of disabled kids at school

Yesterday I neglected to offer a bloggerly "Howdy" to our friends over at the just-launched Texas Tribune, but this morning Emily Ramshaw forces the new site onto our radar screen with coverage of TYC's policies regarding mental health discharge, focusing on a recent case in Tyler where a mentally ill youth killed a schoolteacher at John Tyler High School. Reports Ramshaw:

Dozens of juvenile offenders with serious mental illness are released from TYC lock-ups every year because they’re too sick to treat — not because they’re no longer a threat to the community. In the last five years, the agency has discharged hundreds of youth under this mental illness statute.

One was a schizophrenic and psychotic 16-year-old who fatally stabbed a Tyler high school teacher in September, just months after his release from the TYC.

TYC officials say state law requires them to discharge juveniles who are mentally ill or profoundly disabled if they’ve completed their minimum sentence and aren’t benefiting from rehabilitation programs. Of the 206 youth offenders they’ve released under this provision since 2005, 20 percent have been recommitted to either the TYC or an adult lock-up.

Until this spring, a youth discharged for mental illness wasn’t eligible for specialized psychiatric services in the community. Enter Rep. Jim McReynolds, D-Lufkin, who last session shepherded a bill providing reentry services and health care referrals to youths discharged for mental illness. That care is being provided by the Texas Correctional Office of Offenders with Medical or Mental Impairment (TCOOMMI).

Prior to the bill “the treatment youth received out in the community was sporadic,” TYC spokesman Jim Hurley said. Hurley said with the McReynolds bill, the TYC can now refer kids with mental health diagnoses to care providers in their communities.

The legislation fills a gaping hole, but advocates say it isn’t foolproof: It’s tough to force youth and their guardians to participate with treatment plans or fill prescriptions. The mentally disturbed teenager who killed his Tyler teacher was discharged from the TYC after McReynolds’ measure went into effect.

While the Tyler case did occur after McReynolds' bill took effect, IMO that's not an indictment of his approach: It takes time to build up treatment capacity, which isn't necessarily available in every community. And for that matter, a 20% recommitment rate for youth receiving mental health discharges is really quite low compared to TYC's overall recidivism rates, which hover around 50%.

There's a risk the Tyler case will be used as a Willie-Horton-style indictment of Texas' juvenile justice system, when really it's an indictment of the profound lack of community-based mental health treatment and the inadequacy of the justice system to deal with mental illness. That view was expressed in Ramshaw's story by our friend Ana Correa

“For the kids who suffer from severe mental illness, it’s a shame they end up in the TYC to begin with,” said Ana Yanez-Correa, executive director of the Texas Criminal Justice Coalition. “My fear is that [the Tyler case] will be used as an example to not have anyone paroled out, when the truth is we just need better services.”

Relatedly, yesterday Ramshaw offered up an important article on the use of physical restraints on youth with disabilities in public schools. She wrote that in the 2007-'08 school year:

school staff restrained four of every 100 special education students, with some students being restrained dozens of times. More than 40 percent of restrained youth suffered from emotional problems like post-traumatic stress disorder; nearly 20 percent were autistic.

Educators say restraints are sometimes the only way to prevent disasters. They point to the September 2009 case of a 16-year-old Tyler special education student who fatally stabbed his music teacher in a classroom.

But disability rights advocates say the numbers point to a crisis in Texas special education. They say teachers are resorting to physical restraints because they aren’t properly trained to manage their students’ disabilities – posing a threat to vulnerable children and to themselves.

Their concerns were echoed in Washington this spring, where a federal agency exposed thousands of restraints – including several deaths – of special education students in schools nationwide. In many cases, the U.S. Government Accountability Office found restraints were performed on children who weren’t physically aggressive, and by teachers who weren’t trained to use them.

Excellent stuff from Ramshaw and the Tribune. I'm glad to see the new site up and running an wish Evan Smith and everyone involved the best of luck.

More litigation, disapprobation for dog 'scent lineups'

Yet another lawsuit will be filed today in federal court over false arrest and imprisonment based on dog "scent lineup" evidence from Fort Bend County Sheriff's Deputy Keith Pikett. Reports AP:

Three men who spent months in jail after dogs linked their scents to evidence from crimes they did not commit are filing a lawsuit claiming Texas authorities falsely arrested and imprisoned them, their attorney said Tuesday.

The lawsuit, which will be filed in federal court in Houston on Wednesday, asks for compensatory and punitive damages for the emotional pain and suffering the men say they suffered in jail.

Named in the lawsuit are: five homicide investigators in the Houston Police Department; Fort Bend County Sheriff Milton Wright; and Deputy Keith Pikett, whose dogs were used in the investigations. The City of Houston and its police department are also listed as defendants.

This is at least the third lawsuit targeting Pikett, who has spent about 20 years training dogs named Clue, James Bond and Columbo to sniff out possible criminals in more than 2,000 scent identification lineups. Pikett says his dogs determine if a suspect's scent matches smells from crime scene evidence.

Relatedly, the New York Times has coverage this morning of Deputy Pikett's scent lineups and the Innocence Project of Texas report (pdf) criticizing the practice. Times reporter John Schwarz has a blog post with additional information, including more detail about the FBI's past and present use of the practice:

The ability of animals to read their handlers, known as the “Clever Hans” phenomenon, has been written about in The Times for 100 years.

While some states have used dogs for scent lineups, the Federal Bureau of Investigation says it shuns the practice, and uses dogs to follow a trail to a suspect or a location associated with him, and not to identify one person out of several. Thomas Lintner, the chief of the F.B.I. Laboratory’s evidence response team unit said that the bureau has been using scent dogs to link people to crimes for four years as an “emerging technology” and works under carefully controlled conditions using “scent transfer units” that vacuum air across pads with minimal contamination. Even then, the F.B.I. restricts the uses of the evidence produced by dogs.

“It’s a lead generation activity,” he said. “It’s not something we’re going to take to court and say, ‘we need to indict this guy.’ ”

A story written in 2002 by Scott Shane, now a New York Times reporter, when he worked at the Baltimore Sun, suggests, however, that F.B.I.’s approach to using dogs to gather evidence has not always been so scrupulous. That article (which is archived, and requires a payment to see in full), suggested that bloodhound handlers from Southern California brought in to assist in the search for the source of deadly anthrax in letters mailed in 2001 may have contributed to the the F.B.I.’s flawed decision to focus on Dr. Steven J. Hatfill, who was later cleared of suspicion in the case. One news report called bloodhounds the F.B.I.’s “secret weapon” linking Dr. Hatfill to the letters.

The use of scent lineups in the Hatfill/anthrax case is arguably the highest profile example in America of prosecuting based on accusations by dogs, but the Texas lawsuits show it's not an isolated incident.

We also get a little update on the current status of Deputy Pikett's scent lineup work:

Jeff Blackburn, the author of the Innocence Project report, said of Mr. Pikett, “It’s a marvel to me that they’re still using him anywhere.”

Randall Morse, an assistant Fort Bend County attorney who is representing Mr. Pikett, said that that Mr. Pikett’s lineup work has dropped off considerably since the lawsuits began. While unwilling to comment extensively on cases in litigation, Mr. Morse said that Mr. Pikett and his dogs provide valuable evidence for police to act on, nothing more. He cited cases in which the dogs have not given police the answer they hoped for in linking a suspect to a crime, and were later proved right when another suspect was convicted.

But, he acknowledged, the process itself can seem mysterious, even to him. “The first time I saw it, I couldn’t understand what the dogs were doing,” but Mr. Pikett clearly did, he said. “He’s been doing it so long, he doesn’t understand why we don’t see it.”

That's pretty amazing coverage for the recent report (pdf) by my former employers at the Innocence Project of Texas. As journalists like to say, this story has legs ... in this case four of them.

See prior, related Grits coverage:

• 'Scent lineup' evidence may be used in Anthony Graves capital case
  
• CNN profiles cop wrongly accused by dog scent lineup
  
• 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
• Scent lineups by dogs don't pass the smell test
• Texas Innocence Project vetting dog scent lineup cases
• Evidence mounts against dog handler, scent lineups
• Texas Innocence Project report discredits dog 'scent lineups'
• More innocent people accused by dog 'scent lineups,' but FBI now using technique

Montgomery County spending juvie diversion funds on mental health

I haven't heard much so far about how local juvenile probation departments are spending diversion money given them last spring by the Legislature to help keep kids out of the Texas Youth Commission, but here's a story out of Montgomery County ("New mental health program aimed at helping juveniles," Conroe Courier, Nov. 2) describing how they're spending the new money on unmet mental health needs:

With around 40 percent of juvenile offenders in Montgomery County on some sort of psychotropic medication – such as antidepressants – officials believe a new mental health diversion program will get those young offenders the help they need.

Montgomery County’s Juvenile Probation Department, in collaboration with Tri-County Mental Health Mental Retardation, has started a program to ensure juvenile offenders with mental health issues get treatment and counseling, instead of detaining them, Director Ron Leach said.

The program started Oct. 1.

“We’re taking the services to them at home,” Leach said. “The goal is to get them out of detention and into services immediately.”

The county funded about $50,000 for the program, and the department also received $50,000 from the state to staff a second care manager, Leach said. The program is capped at 15.

Nationally, about 70 percent of juvenile offenders suffer from mental health disorders, with 25 percent experiencing disorders so severe that their ability to function is significantly impaired, according to a 2006 study from the National Center for Mental Health and Juvenile Justice.

“On any given day,” Leach said, “about 40 percent (of the county’s juvenile offenders) are on psychotropic medication. Not all are severe mental health cases. Many are here for family violence.”

Some of the youths with mental health issues are as young as 10, Leach said.

The comment section to that story included some interesting discussion on whether medicating youth can really help solve crime or whether youth in the juvenile justice system are overmedicated. I don't have strong or well-informed opinions on the topic, but it's worth raising the question.

Still, this seems like a worthwhile use of new diversion funds, focusing on a subpopulation for whom resources are perennially scarce and who TYC is particularly ill-equipped to manage. I'm interested in hearing how other communities are spending their new juvie diversion money.

Do prosecutors "hate new crimes"?

Our pal Shannon Edmonds of the Texas District and County Attorneys Association forwards a link to this short law review article provocatively titled, "Why prosecutors hate new crimes" (pdf). Give it a read, the fellow makes an interesting argument - one I partially (but not entirely) agree with. I replied to Shannon's email thusly:

Thanks Shannon,

But surely "hate" is a little strong? They're not always out there promoting them, but prosecutors don't "hate" new crimes enough to publicly oppose them. And they certainly don't push to roll back extra crimes created in the past. Ever.

Perhaps the title should have been "Why prosecutors are sometimes slightly annoyed at new crimes even if they never say so publicly." ;)

It's certainly true that most new crimes and penalty increases are proposed by special interest groups, not police or prosecutors. But if prosecutors "hate" new crimes I'd expect them to oppose them at the Lege when they're proposed. That seldom happens. Ditto for "enhancements."

I don't think prosecutors "hate" new crimes mainly because they have discretion to ignore them. When they really hate this or that change in criminal law, I haven't noticed prosecutors being particularly reticent about criticizing bills they don't like.

Should prostitutes be protected or prosecuted?

Are prostitutes criminals or victims? Or might the correct answer be "both"? And if it's "both," what should be the relationship of law enforcement to workers in the sex trade - should they seek to prosecute or protect them? Those questions are raised by an interesting program established by the Dallas Police Department known as the Prostitution Diversion Initiative (PDI). According to the Dallas News ("Dallas police to collect DNA from prostitutes," Nov. 3):

The Dallas Police Department plans to start collecting DNA samples from truck-stop prostitutes on a voluntary basis to help identify the women if they are later reported missing, comatose or murdered.

The unprecedented endeavor is scheduled to begin early next year as a new phase of the department's 2-year-old Prostitution Diversion Initiative, which offers prostitutes a chance at rehabilitation, often as part of a criminal sentence.

It comes as authorities nationwide are increasingly working together and with the FBI to solve hundreds of murders along major highways that are thought to be committed by serial killers working as truckers.

Dubbed the High Risk Potential Victims' DNA Database, it will be funded and maintained by the University of North Texas Center for Human Identification in Fort Worth.

"These women who are essentially working a lot of these truck stops, they are ... high risk to be killed, to disappear," said Arthur J. Eisenberg, co-director of the UNT center.

He hopes the database eventually will be nationwide.

For Dallas Police Chief David Kunkle, the DNA plan is a logical extension of the philosophy of the DPD prostitute diversion program, which is that prostitutes ought to be treated as victims.

Dallas is taking a novel approach to prostitution, as evidenced by this description of the program:

The Prostitute Diversion Initiative (PDI) was developed by the Dallas Police Department (DPD) in collaboration with multiple organizations to address this increasing problem of street prostitution. Instead of treating prostitutes as criminals, the DPD would approach them as victims, offering an opportunity for prostitutes to gain access to a comprehensive and multi-step in-patient and out-patient treatment program as an alternative to further victimization and continued involvement in the criminal justice system. Recognizing that violence and substance abuse outcomes characteristic of this vulnerable subgroup are points of common interest for criminal justice systems, social services, and public health, the PDI capitalizes on the participation of a broad range of organizations with multi-disciplinary expertise and key resources to understand the causes of high risk behaviors and ultimately inform more effective ways to reduce associated crime. Included in this collaboration are the Dallas County Sheriff’s Office, Dallas County Health Department, Parkland Hospital, courts, and Homeward Bound which takes the lead for over 45 social service and faith-based organizations. The overall goal is to provide those individuals engaged in prostitution, should they choose, a complete exit strategy from the sex trade industry.

According to the PDI annual report (pdf), "More than 1,100 individuals, both men and women, have been identified by Dallas Police as engaging in prostitution at four major truck stops along the I-20 corridor." What's more, "Last year, 3,342 prostitution arrests were made in Dallas county alone," but those arrests didn't make a dent in the problem because they merely moved "the visible foot traffic from the streets into the big rigs. This unexpected result from conventional enforcement illustrates how prostitutes are able to quickly adapt to the environment and frustrate law enforcement." The county last year created a specialized prostitution court to handle these cases and administer the program.

At the end of the day, says Dallas PD, the strategy of arresting and jailing prostitutes hasn't reduced the problem. "Many, if not all, arrests resulted in only a temporary solution, due in part to the turnaround time of these types of offenses. Since prostitution is considered a minor offense, these offenders are one of the first to be released from overcrowded jails, essentially creating a revolving door to which prostitutes would return upon release to the only environment and option they believe they have for survival."

It's too early to judge whether this program works better than an enforcement-only approach, since "It is understood that the process for a successful exit from a life of prostitution is long term and could take years for each participant. There may also be those that will require them to be dependent on services for the rest of their life." Of course, those in jail are 100% dependent on government services.

The annual report also included results from a survey of 175 Dallas prostitutes. Here are some of the highlights.

Summary of Findings Demographics

• Current ages of participants ranged from 19-59 years old, with an average of 37 years.
• Sixty-seven percent of participants were African American
• Half completed at least a high school education or GED
• Nearly seventy percent were mothers

Physical Health Problems

• Over half of participants tested positive for a STD
• Five new HIV cases were identified
• Twenty-three percent of participants reported high blood pressure
• Approximately ten percent of participants reported asthma and seizures
• One participant was currently using a colostomy bag
• Four of the participants reported having cancer

Mental Health Disorders

• Sixty one percent of participants reported having a mental health condition
• Nearly twenty percent of participants reported having more than one mental health condition
• One third of participants reported major depression and bipolar disorder
• Twenty percent of participants have attempted suicide
• Thirteen percent of participants reported having schizophrenia
• Nearly three-quarters of participants were diagnosed on Axis I (DSM criteria)
• Over half of participants received diagnoses on multiple axes (DSM criteria)

City Courts

• Seventy-nine percent of participants had citations pending warrant status
• In total, there were 4,397 citations pending warrant status
• Outstanding warrant fines totaled $1,979,109
• Six year back log on citations being signed into warrants

Outcomes

• Fifty four percent of participants were eligible for immediate diversion to treatment services
• Over half of those participants eligible opted for treatment
• Of those participants entering into the program, nineteen percent completed the initial recovery phase
• Seventy-six percent of participants entering PDI outside the night of initiative completed the initial recovery phase
• Of those participants completing the initial recovery phase, 90% have not returned to the street
• Twenty one participants were repeaters to the PDI
• All of the repeaters to the PDI have relapsed
  

Cross-examination by teleconference?

Robert Guest at Dallas Criminal Defense Lawyer has a post on a case out of the Dallas court of appeals which approved remote testimony via teleconference in a capital murder trial (see the opinion) because a witness who lived in Chicago was pregnant. The witness claimed hers was a high-risk pregnancy that prevented her from traveling or exerting herself, but no medical testimony was presented to support that claim.

Previously Texas courts have only allowed remote testimony in cases where the witness is terminally ill, says Robert, asking, "I'm no doctor, but from what I've gathered about human pregnancy vs. terminal illness is that pregnancy usually ends within 40 weeks with the mother alive. Ergo, wouldn't the witness have been available later?" SCOTUS has held that the Confrontation Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."

Teleconferencing is used in a variety of ways in the justice system, from supplementing inmate visitation to consultations with medical staff at TDCJ to approving negotiated plea deals for already incarcerated defendants. But it's taking that trend too far IMO to allow teleconferencing when a witness must be cross-examined. SCOTUS went partially down that path a few years ago by allowing child witnesses in sex abuse cases to testify remotely and IMO it's led to problems, for reasons identified in an example from a commenter on Robert's blog:

I tried a case where a child complainant testified by CCTV from the same building. He called me Donald Duck, and the prosecutor Elmer Fudd, as he sat in a room full of toys and stuffed animals talking to a television that spoke back for the first time in his life. Despite this, it still took the prosecutor two hours of (permitted) leading questions to drag a scintilla of accusation from him. That six year old had no idea of the gravity and solemnity of the situation.

Guest identifies some of the potential pitfalls with allowing this practice more widely:

In court cross examination is a great tool for discovering the truth. I can see, hear, and even smell the witness against my client. I've only conducted pleas via close circuit camera (jail chain in Bowie County) but never cross examined a witness.

Even in something simple as a plea there is no rhythm to the conversation. The cadence of dialogue is gone, broken up by "What did you say?" and "Can you repeat that?"

It doesn't sound like much but it's one of the ways I get to my client's version of the truth. I'm not sure I could get the same results with Skype. With a client hundreds of miles away from the jury and me I would be at a disadvantage. What comes to mind first is exhibits. What if I wanted to ask the witness to read something? Or demonstrate something?

What about demeanor? You can't tell much about a witness from a grainy head shot. For example, many cops testify with their notes in their lap. Something you couldn't see via web cam. Finally, with me on a TV set they can control my volume and presence to the witness. Crescendo has less impact when the witness is starting at me through a netbook.

This decision undermines, by a degree, the Confrontation Clause requirement that the US Supreme Court has been strengthening lately in the wake of its decision in Crawford. It's one thing to allow remote testimony for witnesses with terminal illnesses, but not just for convenience's sake, which seems like the net result when mere pregnancy becomes an excuse to avoid confrontation in life-or-death proceedings like a capital murder trial.

Prosecutorial hubris, entitlement on display in recent cases

The National Law Journal published an op ed today by Bennett Gershman criticizing the Texas Court of Criminal Appeals and Collin County prosecutors for using procedural excuses to avoid addressing egregious judicial and prosecutorial conduct in the Charles Dean Hood case, where the judge and prosecutor were engaged in an extramarital affair during Hood's capital murder trial. Gershman says too often prosecutors and judges rely procedural excuses to dismiss legitimate defense claims, even in actual innocence cases:

Of all the gamesmanship that prosecutors routinely play, one of the most alarming is to aggressively raise ­hypertechnical and attenuated procedural obstacles and hurdles that a defendant must overcome in order to get a court to listen to his often meritorious claim that the prosecutor committed misconduct. Indeed, the U.S. Supreme Court has characterized such prosecutorial conduct as "gambling" and "playing the odds" with a defendant's rights, playing "hide and seek" to avoid disclosure of exonerating evidence, and requiring a defendant to engage in "scavenger hunts" to find exonerating evidence of which the prosecutor is secretly aware but has suppressed.

Thus, knowing full well that a defendant's claim is legitimate and meritorious, prosecutors regularly argue that the defendant failed to raise his claim earlier, as with Hood, even though the prosecutor well knew that the defendant could not raise the claim because he did not have the information that, brazenly, the prosecutor had suppressed. Some prosecutors have sought to deflect post-conviction claims of innocence by arguing that the defendant pleaded the wrong theory, or failed to use the correct nomenclature to describe the violation. And too many courts have endorsed the prosecutor's arguments. There are limits to this judicial deference. A few terms ago, in Banks v. Dretke, the Supreme Court reversed the U.S. Court of Appeals for the 5th Circuit, which had endorsed another Texas prosecutor's gamesmanship. In a death penalty case, the prosecutor argued that the defendant failed to differentiate sufficiently between his distinct legal claims — in effect, he "didn't say 'Simon Says.' "

Procedural gamesmanship by prosecutors is not a new phenomenon. But with the increasing demands by courts for enhanced and much more rigorous pleading requirements — for example, the Supreme Court's decision last term in Ashcroft v. Iqbal — defendants like Charles Hood are going to find the gateway to justice littered with procedural hoops and mazes of sufficient magnitude and complexity that a defendant may be barred from establishing on the merits that a prosecutor engaged in prejudicial misconduct, that a fair trial was denied and that the truth was lost. And some prosecutors, like the prosecutor of Hood, will champion this result as a big victory.

Hood's case must be one of the worst examples of prosecutors seeking (and usually, procuring) procedural excuses for tolerating official misconduct, but it's hardly an isolated instance. Later this week the US Supreme Court will hear oral arguments to decide whether there is a "freestanding constitutional right not to be framed," as the Washington Post editorial board put it this morning. Prosecutors in that case say there is not, including the National District Attorneys' Association. (See briefs pro and con on the SCOTUSWiki page.)

These two cases are thematically linked by prosecutorial attitudes of entitlement and hubris. Where are the voices among elected District Attorneys saying this kind of behavior can't be tolerated? Who really believes that prosecutors needn't be held accountable for framing innocent people, or that prosecutors and judges may have sexual relations during trial so long as they successfully conceal it from the defense until years afterward? How can anyone truly trust the justice system when stakeholders routinely defend such corrupt and abusive practices?

AG thwarting transparency on justice matters

I'm incredibly disappointed at recent trends developing over at the Texas Attorney General's Open Records division. For the first several years after Greg Abbott became Texas AG, he was a staunch open government advocate - much better, frankly, than either John Cornyn or Dan Morales before him. Lately though, on criminal justice matters, the Texas AG has been issuing decisions that fly in the face of the plain language of the Public Information Act.

An excellent example can be found in an op ed this morning in the Houston Chronicle from Texas Appleseed's legal director complaining that Abbott's office ruled against forcing school districts to disclose use of force policies for police officers they employ. Writes Deborah Fowler:

many parents may be surprised to learn that campus police officers in some Texas school districts are using tasers, pepper spray and other forms of restraint to handle these types of incidents. At Manor High School north of Austin, 12 students were treated for exposure to pepper spray last week after police used the spray to break up fights. Last April, six students at a Dallas high school were hospitalized and the school evacuated when pepper spray, used to break up a fight between two students, got into the school's ventilation system.

Two months earlier, some Edinburg school board members expressed surprise that a school district police officer was allowed to keep his job after video showed him dragging a sixth grade student by handcuffs.

Can it happen in your child's school? Answering that question just got harder with the recent release of brief opinion letters by Texas Attorney General Greg Abbott supporting efforts by Spring Branch ISD and San Antonio ISD to keep their policing policy off limits to the public — no explanation given.

There's just no excuse for keeping these records from the public. The law enforcement exception to the Public Information Act simply doesn't allow police departments to keep use of force policies secret, whether or not the officers work for a school. Information about individual incidents may be another matter, depending on the circumstances, but the policies are public records, and should be.

Appleseed should sue to obtain these documents - this is a terrible precedent to set.

Similarly, Abbott is helping Governor Perry keep secret memoranda related to the Todd Willingham execution, even though he approved release of the same documents related to Gov. George W. Bush in 2003. The Houston Chronicle is suing to gain access to those documents.

One of the downsides of the decline of daily newspapers over the last 20 years is that fewer entities out there have resources to sue over open records when the Attorney General makes politicized rulings like these that don't comply with the act. Most individuals don't have the means to take on the government in an extended legal fight. That means nonprofits like Texas Appleseed need to pick up the slack or there won't be any institutional players out there protecting the public's right to know.

This isn't a partisan issue: When the last Democratic AG was in power, Dan Morales, he was much worse than Abbott on open government. In general, those in power would prefer that us plebians can't know what they're doing and why - it's always been thus no matter which party is in charge. That's why, IMO, stewardship of the Public Information Act is arguably the single most important duty of the Texas Attorney General. Abbott risks tarnishing his legacy on transparency with these recent decisions, not to mention setting bad precedents that could end up sticking when requestors don't have resources to sue for the records.

Bizarro allegations against TYC Ombudsman center on contraband smuggling

Many readers have asked what I think about the bizarre story regarding Texas Youth Commission Ombudman Catherine Evans, a former juvenile court judge from Dallas who is under fire for smuggling contraband - allegedly including weapons, cash, a cell phone, and prescription drugs - onto TYC facilities. This was first reported while I was out of town and for the life of me I still can't figure out what was going on or why in heaven's name Judge Evans would do such an unabashedly stupid thing.

Evans claimed she was "testing" security at TYC units - she supposedly brought contraband onto 2 or 3 other units before she was caught at Crockett - but that's not the role of her office and it would be easy to document lax security without resorting to such methods. The previous ombudsman raised the same issue without engaging in those sort of grandstanding ploys. What was this woman was thinking?

One source told me one of the weapons was a knife (found at Crockett) and that she also allegedly brought a handgun onto another facility (which possibly was "fake," I was told). There was speculation by a different person that the drugs she allegedly brought onto facilities were "fake," and that investigators were having the substance tested. Quien sabe?

I was also told that the Inspector General's office is "very serious" about pursuing a case against Evans - that her explanation about "testing" security may not be enough to forestall her eventual prosecution. That'd be something, wouldn't it? It'd be amazing if they wound up prosecuting the Ombudsman, whose position was only created in 2007, before they prosecute TYC employees alleged to have sexually abused kids at the West Texas School. What a mess!

Mike Ward at the Austin Statesman had some interesting backstory regarding how this came to light:

Evans was found to be carrying a weapon and other prohibited items as she entered the Crockett State School, according to Susan Moynahan, the deputy ombudsman who served as interim director before Evans arrived. Evans was asked to leave the facility.

Moynahan resigned Oct. 8 after telling Perry's office about the Beaumont episode. The ombudsman reports to the governor, not Youth Commission officials.

"Although it is unclear by your report what type of weapon you carried into the facility you reported that you intentionally brought contraband into a facility, which is a felony, and could have resulted in arrest and endangered the lives of youth and staff at that facility," Moynahan's resignation letter states. "In addition, to report this behavior within a site visit report would no doubt result in extremely negative repercussion" for the ombudsman's office.

Moynahan told the American-Statesman she has been interviewed by Youth Commission investigators. "Carrying a weapon onto a correctional facility? This is insanity — not to mention it's a crime," she said. "If she was trying to test security, this is not how you do that. State employees are not above the law."

Youth Commission Inspector General Chris Love did not return a message. But Townsend said she knew of no approved sting for Evans to test security.

So the deputy ombudsman ratted Evans out and resigned over this early last month! Perhaps Ms. Moynahan will get a chance to explain to a legislative committee at some future date exactly what's been going on behind the scenes at that office. (Certainly Judge Evans will, if she doesn't resign her position first.) There's a lot more to this story, one suspects, than has been revealed so far in media accounts.

RELATED: While it's true as mentioned above that the former TYC employees from the West Texas State School accused of sexual abuse have not been brought to trial, a former staffer from Brownwood was sentenced last week to 54 years for sexually assaulting three teenage girls at the Ron Jackson unit. According to the Abilene Reporter News, four other former TYC guards from Brownwood are currently facing felony charges.