Wednesday, December 30, 2009

Texas progressive sanctions manual for judges now online

Via the state prosecutors' association:
The Texas Department of Criminal Justice-Community Justice Assistance Division (TDCJ-CJAD) authorized the publication of the Texas Progressive Interventions and Sanctions Bench Manual in response to requests from the Texas trial judiciary concerning community corrections sanctioning options and resources in Texas. This manual is primarily designed for both District Court and County Court at Law Judges trying criminal cases. However, it is also a valuable source of information for prosecutors, community corrections officials, defense attorneys, crime victims, defendants, and any other citizen with an interest in the broad array of alternatives to incarceration in Texas.

The 2009 revision of the Texas Progressive Interventions and Sanctions Bench Manual has been reorganized to highlight practices that research has proven to be effective with criminal justice populations. For purposes of simplicity, the generic and well-understood term "probation" is used interchangeably with the term "community supervision" throughout this manual. The legislative decision to employ terms such as Community Supervision, Community Corrections, Texas Department of Criminal Justice-Community Justice Assistance Division, and Community Supervision Officers (CSOs) is well understood. The local program descriptions and sentencing alternatives listed herein represent designs adopted by many of the Community Supervision and Corrections Departments (CSCDs) of this State. Local availability as well as access to a specific program is best determined through the local CSCD. Courts, prosecutor, and counsel are encouraged to contact the CSCD of original jurisdiction as to availability of a specific program in that jurisdiction or, in the case of transfer to another CSCD in Texas, the availability of specific programs in the receiving CSCD.

Dallas data definititions changed to acknowledge more car burglaries

After the Dallas News called them on juking their stats, the Dallas Police Department changed its protocols for how it classifies car burglaries so that documentation is required before a complaint is deemed "not credible." Prior practices caused the department to underreport car burglaries by about 2%, according to the News.

Great job by reporters Tanya Eiserer and Steve Thompson vetting DPD's data.

'TYC launches youth reading program'

The title of this post is the headline to a Corsicana Sun story published today which informs us that:
An innovative new teaching curriculum designed to significantly improve the reading ability of youth in the Texas Youth Commission (TYC) was recently launched in all TYC facilities. The program, called “Rewards and Rewards Plus,” is designed to close gaps between the reading abilities of TYC youth and their peers in traditional school settings. ...

In 2009, the Texas Legislature called for an overhaul of TYC’s reading programs through research-based assessment, instruction, and specialized training. The legislature also appropriated $750,000 to pay for these improvements.

Working with the University of Texas Meadows Center for Preventing Education Risk, a standardized reading instruction curriculum has been developed and implemented throughout all TYC schools. The curriculum is based on a three-tier model, with student placement in each tier determined by performance on nationally recognized reading assessments. Each tier, to the greatest extent possible, will include a student population with similar reading abilities to allow for the more individualized reading instruction. All youth will participate in Tier I enhanced reading instruction. Students who require additional reading support are assigned to a separate Tier II reading class or, for those who require more intensive instruction, a Tier III class.

TYC recently hired 10 additional teachers to advance this effort. The Meadows Center conducted reading intervention training for these 10 teachers and five additional TYC instructors. All TYC reading teachers will receive training in the reading intervention by the end of February

Initial evaluations of the new reading curriculum will begin in late December 2009.
This new curriculum was one of the action items in TYC's education plan for the 2009-2010 school year (pdf).

Tuesday, December 29, 2009

2010 criminal justice elections to watch

Looking forward to the 2010 elections, most Texas media and politicos' focus has been on the Governor's race and a handful of open seats and competitive races at the Lege. But as the January 4 filing deadline approaches, what criminal-justice related races out there merit watching?

At the Court of Criminal Appeals, Keith Hampton has announced he will seek Judge Michael Keasler's spot. I'm hoping at least one other Democrat steps up to run against Judge Meyers on the CCA before the filing deadline, just in case the Governor's race turns out to be close and some Democrat gets lucky. In Texas' last mid-term election in 2006, an unknown Democratic CCA candidate who ran no campaign received about 300,000 more votes than then-Senate candidate Barbara Radnofsky. I predict this time, too, judicial races will be Democrats' top statewide vote getters.

Speaking of Barbara Radnofsky, she'll face off against incumbent Attorney General Greg Abbott in a race that for me hinges mostly on the candidates' open records stances.

Ex-Travis County DA Ronnie Earle will run against incumbent David Dewhurst for Lt. Governor, doing his best Don Quixote impersonation.

Among sitting District Attorneys, Dallas' Craig Watkins has a big bullseye on his back. He's definitely the favorite going into the race, but Watkins has taken a lot of hits recently and if the GOP can't knock off the rookie DA in 2010, they're likely stuck with him or some other Democrat for quite a long time. That tells me the Dallas GOP will likely throw the kitchen sink at him hoping to stem the recent tide of Democratic victories in that county. It's what I'd do in their shoes.

Also in Dallas, three of the constables who've been accused of misconduct by the commissioners court are facing primary opponents, reports Kevin Krause at the Dallas News. (It'd be nice to see those problems resolved at the ballot box, for once, instead of in the courts.)

In McLennan County, long-time incumbent DA John Segrest will see his first contested race in a generation. The local police unions are gunning for him and it promises to be a spirited fight.

Meanwhile, Sandra Day O'Connor may think judges shouldn't be elected, but for the time being her opinion doesn't matter much. There are lots of local judicial races heating up in both next year's primary and general elections. The big questions: Will Dallas and Harris judicial races continue to trend Democratic in next year's general election, and will countywide seats all follow suit? (That's partly why the Dallas DA's race is so critical for Republicans who hope to stem their electoral bleeding there.)

Democrats in Bexar should be primed for similar gains in judicial seats, but corruption and disarray in their county party could prevent them from capitalizing on the opportunity.

There are also quite a few judicial primary races to watch: Austin has several open seats up this go-round in district and county courts, but it's unclear how many will end up being competitive races. There are also competitive judicial primaries in both Dallas and Houston. (Kuff is helpfully running a series of Q&As for judges running in Harris County's Democratic primary.)

At the court of appeals level, too few candidates have filed so far to tell what will be the key matchups. I did notice Chief Justice Josh Morris of the 6th Court of Appeals out of Texarkana drew a GOP primary opponent named H.D. Bailey. Dems have a few challengers lined up to run against incumbents or to fill unexpired terms, while most of the Republicans who've filed so far are returning incumbents. An open seat on the 3rd Court of Appeals should be a competitive fight between Democrat Kurt Kuhn and Republican Scott Field. (See which appeals court seats are up next year on this Secretary of State's site.)

I'll sort through competitive local and appellate judicial races more thoroughly after the filing deadline, but in the meantime let me know which races you're watching in your own neck of the woods.

Beyond candidates, there will probably be a vote on a quarter-billion dollars in bonds to expand the Harris County jail. Voters already said "no" to the plan once, but like a bad penny the idea keeps coming back. We'll likely see one or two other county jail plebiscites next year, if I had to guess, though none have been formally set yet.

What other state or local criminal-justice related elections are you watching next year? Let me know in the comments.

Coryell County seeks overbuilt jail to attract private vendor

In Coryell County (Gatesville), commissioners want to build a jail twice the size the Commission on Jail Standards says they need because they want to contract with a private prison contractor to lease out extra beds. Reports the Killeen Daily Herald (Dec. 29):
County Judge John Firth said recommendations made by TCJS staff are a 152-bed facility with the ability to expand to 500 beds over the next 20 years.

"That's way below what the commissioners and sheriff would be needing," Firth said.

As a result, the court will send a letter to TCJS Executive Director Adan Munoz Jr. to counter the staff's recommendations.

"We disagree with the staff recommendation and will include a feasibility study that was done two years ago that said 250 beds with an expansion capability of up to 500 beds over the next 20-year period," Firth said.

"There's a break in there where it doesn't become cost-effective to spend the amount of money on a 197-bed facility based on in 20 years what we would spend sending them out versus what we will spend, and that 197 is not going to cover us for 20 years," Commissioner Elizabeth Taylor said.

Commissioner Jack Wall said if the county decides on a private jail facility, "the secret number is 300.

That's the number of beds we have to have."

Firth will send a letter to Munoz with the county's recommendation of a minimum 250-bed facility that can expand up to 500 beds.
Counties overbuilding their jails to provide extra space for private vendors have sometimes seen that decision come back to bite them. Cameron County now ships pretrial detainees out of county because so many beds are taken up with contract prisoners, while Gregg County at one point had to stop arresting people for all but serious felonies for the same reason. In Lubbock, commissioners overbuilt their jail hoping to fill it with contract prisoners and now taxpayers must eat the extra costs. Exacerbating the situation, the Texas Department of Criminal Justice has stopped leasing beds from county jails because of its own successful efforts to keep the state prison population under control. And with immigration arrests down as a result of the flagging economy, demand for federal detention beds seems likely to decline in the near future.

As of December 1, Coryell County housed 75 prisoners in a facility designed for 92 - that's a far cry from the 250-300 beds commissioners want to build. The county would do well to scale back their jail building ambitions to focus exclusively on their own citizens' needs, not the needs of some prospective private vendor.

Feds remove needle exchange funding ban; when will Texas get its act together?

Earlier this month Congress approved legislation that removed the federal funding ban on needle exchange programs. According to the San Francisco Chronicle (Dec. 18):
The federal ban, sponsored by the now-deceased Sen. Jesse Helms, R-N.C., was enacted by Congress in 1988 and has been renewed annually.

Supporters of the prohibition said needle exchanges encourage the use of dangerous drugs. Robert Martinez, chief of drug policy under President George H.W. Bush, said government funding for clean needles "undercuts the credibility of society's message that drug use is illegal and morally wrong."

In 2000, however, Bush's surgeon general, David Satcher, said scientists had found that needle-exchange programs were effective and did not encourage drug use. A 1997 study said HIV infection rates had dropped by 5.8 percent in 29 cities around the world with the programs, and increased by 5.9 percent in 52 cities without them.

Obama has sent a mixed message on needle programs. He endorsed federal funding as a presidential candidate, but his proposed 2009-10 budget continued the funding ban, even as his drug czar, Gil Kerlikowske, was supporting needle exchanges at his confirmation hearing.

House Democratic leaders waged a low-key campaign to repeal the ban this year. A Republican proposal to continue the funding prohibition was defeated on the House floor in July on a 218-211 vote, mostly along party lines.
Texas still has no legal, functioning needle exchange program, despite legislative approval of a pilot in San Antonio in 2007. Bexar County District Attorney Susan Reed threatened to prosecute volunteers participating in needle exchange programs, despite the clear intent of legislators to allow the SA pilot. Then in 2009, legislation to legalize needle exchange statewide (with a local opt-in) appeared to be sailing toward passage until the end-of-session meltdown over voter ID killed it along with hundreds of other unrelated bills.

State Sen. Bob Deuell, a Republican medical doctor from Northeast Texas, has lately made passing a needle exchange bill one of his top priorities. Perhaps the decision to free up federal money will be the final impetus needed to push his legislation over the hump in 2011.

Chron: Harris DA's new crack pipe policy 'good for justice'

A Houston Chronicle editorial today praises Harris County District Attorney Pat Lykos for her decision to join the rest of the state's large jurisdictions and cease filing state-jail felony cases on defendants found with crack pipes where labs detect traces of drugs. Instead, unless there's more than .01 grams of a controlled substance, crack-pipe possessors will receive only misdemeanor paraphernalia charges. Opined the Chron editorial board ("Fitting the Crime: Focus more on rapists than crack residue," Dec. 29):
The change is good for justice — but also good for our justice system, which has focused too much of its scarce resources on prosecuting low-level addicts instead of more dangerous criminals. Of the 46,000 drug-possession felony cases the county filed last year, a third involved less than a gram of a controlled substance. Many of those cases involved crack pipes, which almost always carry traces of cocaine residue. (Very likely the bills in your wallet do, too. Those molecules get around.)

Under the new procedure, if police catch a junkie carrying a crack pipe, he would still be charged with possession of drug paraphernalia, a misdemeanor that can carry up to a $500 ticket. But unless police find at least a hundredth of a gram of the drug — you know, at least a speck — the case won't tie up lab analysts, felony courts, prosecutors or the state jail.

That's important because our criminal justice system most definitely has bigger problems to worry about. More than 1,000 rape kits from active cases — currently stuck in limbo — await testing by the Houston Police Department's backlogged crime lab. Police don't bother to collect fingerprints from burglaries or auto thefts because HPD's forensics unit doesn't have time to test them. And our jails are dangerously overcrowded.

Crack pipes are the least of our problems. So it's about time we focused on the bigger crimes — and not on the specks.
Lab resources are scarce and processing times are long, so the Chron's absolutely right that such a volitional use of crime labs to bump up a misdemeanor charge to a state jail felony is a waste of time and money that would be better devoted to more serious offenses. The change has been advocated by Harris County judges from both parties and brings the county's practice in line with other large Texas counties.

I think this is a good idea, and more to the point a necessary one. With its jail bursting at the seams and hundreds of prisoners housed outside the state, Harris County doesn't need to be wasting space in the county jail, clogging up felony dockets, and paying indigent defense costs for every addict with a crack pipe. That's too low a threshold to justify hanging a lifetime felony tag on someone, plus the tactic takes away resources needed to investigate and prosecute much more serious crimes.

Monday, December 28, 2009

NIJ: Solutions to cell phone contraband mostly "expensive and labor intenstive"

Via the Crime Report:
A new paper by the National Institute of Justice examines the challenges that the new generation of cell phones poses to the corrections community. Now smaller than ever and with both audio, video and data capacity, the NIJ reports that cell phones have been used to conduct illegal activity. In the first half of 2008, California corrections officials confiscated 1,331 cell phones from inmates, but technology that senses and blocks phone signals is expensive, and can interfere with staff cell phones.

To read the whole report click here.
The short, two-page report includes a tidbit about cell-phone sniffing dogs, which have received significant press recently, declaring such efforts have "not been rigorously evaluated. Dog training can cost tens of thousands of dollars. Dogs must be close to the phone, and anecdotal evidence suggests that the phone must be left in the same place for a considerable time to be found."

Besides cell-phone jamming, which is illegal for now unless Congress changes a federal communications law that's been on the books since the 1930s, most proposed solutions to the problem, says NIJ, are "expensive and labor intensive."

Harris 'fallen behind' in macabre competition: LWOP led to fewer Texas death sentences

There's something odd about a news story bemoaning the fact that Houston has "fallen behind" other large Texas cities in the number of death sentences given out by its juries. I admit it's remarkable, given the town's long-time reputation as the Death Penalty Capital of the United States, but it seems off-putting to view capital punishment as some sort of score in a macabre competition.

Still, Texas' and particularly Houston's decline in death sentences are a notable shift, one which Lise Olsen attributes in the Houston Chronicle ("Harris County loses state lead in executions," Dec. 28) to Texas' passage in 2005 of life without parole as a sentencing option in capital crimes:
Long the state's leader in sending convicts to death row, Harris County has fallen behind both Bexar and Tarrant counties in the number of death sentences it imposes, an analysis of eight years of records shows. ...

Since a new life-without-parole law took effect in 2005, Harris County — with a national reputation for pursuing capital punishment and home to the fourth-largest city in America, with a population of nearly 4 million people — has sent fewer inmates to death row than Tarrant or Bexar counties, urban counties that include Fort Worth and San Antonio, respectively. Tarrant County's population is about 1.7 million; Bexar's is 1.6 million, U.S. Census records show.

Bexar and Tarrant each sent eight newly convicted killers to death row in the four years since the law took effect, state prison data show. In the same period, larger Harris and Dallas counties sent six apiece, based on the Chronicle's analysis of Texas Department of Criminal Justice death row arrivals.

Those tallies don't include killers, five in Texas in 2009, who remained on death row after their convictions or sentences were overturned on appeal but who were later resentenced to death.

Texas was the last of the nation's 35 death penalty states to adopt life without parole as an alternative in capital cases. The law offered a legal guarantee to jurors and prosecutors alike that convicted killers sentenced to an isolation cell in lieu of an execution chamber could never be freed.

Statewide, only about 50 inmates have been added to death row since the law took effect Sept. 1, 2005. In contrast, from September 2001 to September 2005 — the four years before the law was enacted — 90 were sentenced to death.

The post-life-without-parole decline in death sentences exceeds 40 percent.
There were a couple of other theories touted to explain the decline:
Roe Wilson, a prosecutor who has long overseen death row appeals for Harris County, agreed the state's life-without-parole law likely has reduced death sentences. But she also cited recent Supreme Court rulings that banned executions of those convicted for murders committed before age 18 and of mentally impaired offenders with low IQs who meet certain criteria.

Williamson County prosecutor John Bradley, who heads the Texas Forensic Science Commission, argues that widespread turnover in prosecution offices statewide, including in Dallas and Harris counties, likely played the greatest role in recent reductions in death sentences.
The change in prosecution regimes doesn't explain lower numbers in Harris County, though, because the new DA only took over this past year. The same trend exhibited itself under Chuck Rosenthal, who reveled in his reputation as a "tuff-on-crime" icon and pro-death penalty enthusiast. Roe Wilson's suggestion about SCOTUS restricting the death penatly for juveniles and retarded defendants may explain some of the trend at the margins, but it does indeed seem like the switch to an LWOP option in capital cases was the trigger that set off Texas' recent decline in death sentences.

An odd appointment to the Juvenile Probation Commission

Just before the holiday, Governor Rick Perry appointed three new members to the Texas Juvenile Probation Commission. Two of them seem routine enough: A lawyer who serves on a county juvenile board and a county commissioner with connections to CASA. But this description of the third appointee caught my eye:
Scott O’Grady of Dallas is a self-employed motivational speaker. He is a life member of the Veterans of Foreign Wars. He served as a fighter pilot in the U.S. Air Force and was commissioned through the US Air Force Reserve Officers Training Corps program. O’Grady received a bachelor’s degree from Embry Riddle Aeronautical University and a master’s degree from Dallas Theological Seminary.
A "motivational speaker" for the Juvenile Probation Commission? Really? So I wondered, "Who is this guy?," and as usual Google is our friend. According to O'Grady's web page on a speakers' bureau site:
Shot down in war-torn Bosnia, Scott O’Grady shares the six-day, life-or-death ordeal that made headlines, inspired millions and taught us about preparation, teamwork and leadership.

An Air Force fighter pilot, Captain Scott O’Grady was shot down over Bosnia while helping to enforce the NATO no-fly zone in an F-16. Alone -- facing death, capture and the elements -- he discovered within himself the spirit to go on and relied on the skills learned during a lifetime of preparing for the unthinkable. From O’Grady’s compelling life-and-death story, audiences learn how to adapt, change and succeed even under the most daunting and trying of circumstances. Even while isolated behind enemy lines, Captain O’Grady remained a member of a carefully drilled team. He details the preparation, teamwork and leadership responsible for his survival and for his dramatic rescue by the U.S. Marines — qualities that are crucial to success in every facet of business and life. The ingenuity and fortitude that kept him alive in hostile territory for six days now inspires audiences to their own groundbreaking achievements.
Quite humorously, though, news accounts of his story don't quite jibe with the idea that "Even while isolated behind enemy lines, Captain O’Grady remained a member of a carefully drilled team." A story from the UK Independent published in 1995 about the episode was titled "All-American hero's errors bring NATO down to earth." Their description paints O'Grady's level of professionalism and preparedness in a different light:
The way he was shot down, and his inability to communicate with aircraft searching for him, have revealed many shortcomings, and the US Air Force will have to take a hard look at its pilots' training. ...

Capt O'Grady's first mistake was a matter of discipline - he took off dressed only in a flying suit and a T-shirt , not properly clad to eject and survive in a hostile environment.

The Bosnian Serbs apparently locked radar on to his F-16 fighter several times, but he continued circling when he should have known he had been picked up. Eventually, the Serbs launched an SA-6 missile ,guiding it towards his plane visually. A quick transmission from the radar was then enough to guide the missile to the plane in its final moments, blowing it in two.

Capt O'Grady did not, apparently, know how to use his survival radio or the Global positioning system. Eventually, he seems to have worked out how to use the aids by trial and error: had he been well versed in the drills, he could have been picked up days earlier, sources said. He also headed towards a reference point quite needlessly, showing a misunderstanding of basic procedures.
Pretty striking differences in those two accounts, huh?

Most recently, Mr. O'Grady obtained his seminary degree in 2007, has been giving speeches at "Tea Parties" and he wants to run for office, though he can't decide which one. He's got a very odd campaign website that promotes him as a leader for Texas, asks for contributions and volunteers, but strangely declines to say what office he's seeking. On his contributions page, it declares, "Scott needs your financial support to explore the opportunities to serve Texas at the State or National Level." I wonder if this was the opportunity he was exploring, and if so what he'll do with his contributors' money?

There's nothing on O'Grady's "Issues" page that would make you think he's ever given a second thought to juvenile justice. This seems like an appointment motivated by political patronage instead of experience and merits. It'll be more than a year before the Senate gets around to confirmation hearings on these appointees, but when they do, O'Grady's selection to the Juvenile Probation Commission probably deserves a second look.

UPDATE: Though the press release didn't say so, this was actually a reappointment, according to TJPC's website. O'Grady was already on the board, though according to meeting minutes he missed two of the last three board meetings. So it's not a new appointment, but it's still a strange one.

Governor's Christmas pardons an odd mix, short list

Having earlier mentioned Gov. Rick Perry's relative historical indifference to clemency petitions, I should point out that the Governor issued eight Christmastime pardons this year granting clemency to:
  • Cory Gibson Brazeal, 31, of Fort Worth, was convicted in 1998 of resisting arrest at the age of 19. He received 30 days in jail which was probated for one year, and paid a $100 fine. He is granted a full pardon.
  • Natalie Ann Dukate, 33, of Dallas, was convicted of possession of marijuana in 1996 at the age of 20 and in 1997 at the age of 21. She received three days in jail and paid a $1,500 fine for the first offense, and 180 days in jail which was probated for 180 days, and paid a $300 fine for the second offense. She is granted a full pardon.
  • Dan Warren Luper, 52, of Burleson, was convicted of burglary of a motor vehicle in 1975 at the age of 18. He paid a $1,000 fine. He is granted a full pardon.
  • Sheena Nichole McCloud, 24, of Killeen, was convicted of theft by check in 2002 at the age of 17. She received 180 days in jail, and paid a $100 fine and $106.32 restitution. She is granted a full pardon.
  • Victor August Moeller Jr., 49, of Moulton, was convicted of driving while intoxicated in 1977 at the age of 17 and evading arrest in 1985 at the age of 25. He received 30 days in jail, which was probated for six months and paid a $100 fine for the first offense, and paid a $273.50 fine for the second offense. He is granted a full pardon.
  • Maria Luisa Ramirez, 50, of Lyford, was convicted of theft in 1983 at the age of 23, and driving while intoxicated in 1986 at the age of 26. She paid a $100 fine for the first offense, and received 30 days in jail which was probated for one year and paid a $200 fine for the second offense. She is granted a full pardon.
  • Royce Dean Richardson, 68, of Whitewright, was convicted of burglary in 1960 at the age of 20. He received three years probation. He is granted a full pardon and restoration of firearm rights.
  • Desire Maraw Taylor, 29, of Belton, was convicted of assault with bodily injury in 2000 at the age of 22. She received three days in jail and paid a $350 fine. She is granted a full pardon.
Just like Perry's previous pardons, this list makes me wonder why these particular folks received clemency for relatively common, low-level offenses when thousands of similarly situated people did not? Cynics may answer, "political connections," but a quick Google of the eight names revealed no obvious links to big donors, powerful interests or political activists. (If you know something I don't on that score, btw, please enlighten us in the comments.)

In particular, this is the second year in a row that a single, petty pot offender has made Perry's Christmas pardon list, but hundreds of thousands of Texans have been convicted of that crime. I'm happy for Ms. Dukate that she received her pardon, but why shouldn't others receive equal consideration? Perhaps petty drug offenders would make a good candidate for the sort of mass clemency recently advocated by bioethicist Jacob Appel on The Huffington Post.

Another interesting thing to note here is the length of time passed since the offenses Perry pardoned. Some follow the time-honored pattern of pardoning older folks for offenses committed in their youth. But two of those pardoned - McCloud and Taylor - are just seven years removed from the crimes that got them in trouble. Ms. Dukate's offenses were only 12 years in the past. I'm glad to see it, but it makes me doubly wonder why more people aren't eligible for clemency if the Governor feels comfortable pardoning these women just seven years after their offenses?

I wonder how many folks we'd be talking about if the Governor were to issue clemency for every low-level pot offender who spent seven years or more after their offense without recidivating? I don't expect Rick Perry to take such a bold step, but this year's Christmas pardons raise those questions, however unlikely such actions might seem given the Governor's past pardon record.

Comprehensive anti-recidivism legislation out of New Jersey

A New York Times editorial published on Christmas Eve titled "Smart Answers to Recidivism" highlights pending reentry legislation out of New Jersey that the Grey Lady suggests should be a national model:
New Jersey lawmakers heard some depressing testimony in hearings leading up to the legislation. Deterred by barriers to jobs, housing and education, about two-thirds of the people released from prison in New Jersey end up back inside within three years. Since taxpayers spend about $48,000 per prison inmate per year, by some estimates, the state could reap significant savings from even a small decline in the return-to-prison rate.

The proposed reforms in New Jersey seek to end practices under which former prisoners are denied employment because of minor convictions, even in the distant past, and crimes that have nothing at all to do with the work being sought.

No reasonable person would suggest that a sex offender be given a job in an elementary school or day-care center. An ex-offender could not be disqualified for employment unless the offense was directly related to the job. Job seekers would no longer be required to disclose convictions on applications for state, county or municipal jobs. The offenses could still be uncovered in background checks, but they would no longer automatically rule out an applicant from the start.

The bill would lift the state ban on food stamps and welfare benefits for people with felony drug convictions and would expand education and training opportunities for inmates. And it would end an odious practice under which the prison system earns a profit by overcharging poor families for the collect calls they receive from relatives inside a system. The added cost sometimes forces families to choose between putting food on the table or letting a child speak to an incarcerated parent.

The New Jersey Legislature has a chance to provide a new lease on life to thousands of families while offering a model for the rest of the nation.
All of these are smart suggestions. The idea of not requiring disclosure of criminal history on job applications has become colloquially known as "banning the box" (i.e., the "box" you must check if previously convicted of a crime), a tactic Travis County introduced last year with no known ill-effects. Employers still perform background checks before hiring, but don't screen out ex-offenders automatically on the front end.

Eliminating state bans on food stamps and welfare benefits could prevent placing ex-offenders in the position of having no options besides illegal activity to put food on the table or a roof over their heads. After the Clinton-era welfare reforms, that still doesn't mean they'll be supported by the state ad infinitum. But especially during a recession when jobs are scarce, the move mitigates to some extent economic motivations for crime. Coupled with expanded education and training opportunities that steer ex-offenders into the workforce, the suggestion makes a lot of sense.

And eliminating price gouging on jail and prison phone calls makes the most sense of all. There's not even a "punishment" justification for that, since the only people it harms are the offenders' families, who should be viewed as allies to prevent recidivism but instead are treated as cash cows mulcted by the state six ways from Sunday.

Texas only recently installed phones in prisons and expanded prisoners' access, but part of the justification for allowing it was the ability to profiteer off inmates' families. Lowering rates to market levels would increase communication with families and make it more likely offenders will be successfully reintegrated when they return home.

That sounds like a pretty comprehensive piece of state legislation. Any one piece of it would be a significant victory; collectively it's a particularly impressive effort that I hope succeeds and is replicated elsewhere.

Sunday, December 27, 2009

The coming fight over independent crime labs

There's a behind-the-scenes tussle going on in Washington D.C. between the mayor and the police chief over whether their troubled crime lab will be independent from the police department, reports the Washington Examiner ("Top DNA doctor transferred out of D.C. police amid turmoil," Dec. 27)
D.C.'s top forensic scientist has been transferred out of the police department amid an increasingly bitter conflict for control of the city's crime laboratory.

William Vosburgh was brought in amid much fanfare to assist construction of a long-delayed, $140 million crime laboratory and to build a top-flight forensic science program to match it. But after months of conflict with police department brass, he's being "detailed" to the mayor's office, sources with intimate knowledge of the controversy told The Examiner.

At the heart of the matter is whether the crime lab will be independent or under the authority of the police department. Vosburgh has argued internally that the lab has to be independent to prevent police from influencing forensic tests; his boss, Assistant Chief Peter Newsham, wants the lab to report to him. ...

The stakes are enormous: Without a working crime lab, the District is sitting on thousands of untested samples from rapes and homicides. There are about 4,000 unsolved homicides on the department's books.

But experts say it's not enough to have a crime lab: The city also has to build an effective one. In Houston, officials are still reeling from revelations that its technicians were poorly trained, kept shoddy records and spoiled evidence with leaky roofs and bad habits. Dozens of cases have had to be retested. One prominent criminologist called Houston's criminal justice system "completely dysfunctional."

There have been similar scandals in crime labs in Oklahoma City, Montana, Washington state and even at the FBI lab at Quantico -- where the District's samples were being tested until Vosburgh took over and overhauled the District's staff.

The National Academy of Sciences recently published a massive study arguing for independent crime labs.
Will scientists or cops control forensic testing? That's the question underlying this bureaucratic feud in D.C..

It's a political fight we've not yet witnessed in Texas, but it's likely looming just over the horizon. The matter will probably come to a head first in Houston, where police chief Harold Hurtt just stepped down after the new mayor said she would fire him during the campaign, in part over crime lab issues. Potentially, Mayor Annise Parker could avoid this particular battle by making sure the new police chief is on board with removing Houston's crime lab from the police department altogether and making it independent - possibly collaborating with other jurisdictions to create a long-discussed regional crime lab. Will she take that next, big step? Quien sabe? Time will tell. It's definitely what's needed.

Similarly, we've not yet seen a serious push to disentangle state crime labs from the Texas Department of Public Safety, which has not been immune from its own scandals, but there aren't many sound arguments besides cost and inertia for leaving crime labs in law enforcement bureaucracies that subject them to investigators' biases and demands.

Saturday, December 26, 2009

Wall Street Journal suggests raising white flag on marijuana prohibition to de-fund Mexican cartels

It's quite astonishing to see this subhed in today's Wall Street Journal story titled "Saving Mexico": "To weaken the cartels, some argue the U.S. should legalize marijuana, let cocaine pass through the Caribbean and take the profit motive out of the drug trade." According to the WSJ:
Growing numbers of Mexican and U.S. officials say—at least privately—that the biggest step in hurting the business operations of Mexican cartels would be simply to legalize their main product: marijuana. Long the world's most popular illegal drug, marijuana accounts for more than half the revenues of Mexican cartels.
Several other related, recent stories caught my eye today.

An AP story published widely on Christmas Day noted the odd truth that El Paso remains a relatively calm, crime-free city compared to Juarez across the river where the worst of the Mexican cartel wars are raging.

Meanwhile, an ominous item from The Business Insider notes that drug profits and increased value of expatriate remittances thanks to the falling peso are all that's propping up the Mexican economy, which is 12th largest in the world, now that the nation's oil reserves are running out.

This New York Times piece from last week details the story of a corrupt US Customs agent from El Paso.

Former Seattle police chief Norm Stamper says the death of drug kingpin Arturo Beltran Leyva doesn't reflect a victory for law enforcement but instead creates a job opening for thugs underneath him. PBS has the story of retaliation killings against a Mexican military hero's family by Beltran's gang, who may have had assistance from local police in making their getaway. Ciudad Juarez, reports PBS, has a murder rate three times as high as Baghdad, Iraq.

This item from a former Mexican foreign minister discusses how few good options present themselves to Mexican President Felipe Calderon in prosecuting the drug war Though he didn't make the analogy explicit, the story reminded me of accounts of Lyndon Johnson as he struggled to make sense of US policy during the Vietnam War.

Creating 'task force' won't automatically solve communications issues on big-rig theft

The Texas Tribune's Reeve Hamilton recently published a feature reporting that:
Texas has the worst rates of cargo and heavy equipment theft — thieves rolling away with anything from semi-trailer trucks full of electronics to a backhoe on a flatbed — in the country. It also has the worst track record of recovering stolen heavy equipment. At 16 percent, its rate of recovery falls five percentage points below the national average.

Despite this, it is the only state reporting significant cargo thefts without an organized law enforcement task force addressing the issue.
With Texas' central location as a North American transportation hub, the state faces unique challenges regarding commercial vehicle theft and there's no doubt the problem deserves concerted focus. (For that reason, it may not be fair or useful to compare Texas' data to, say, New Hampshire's or Ohio's.) But it overstates the case to say there's no "organized law enforcement task force addressing the issue," it's just being addressed locally and regionally instead of statewide. A bigger issue has been that officers staffing such investigations don't always use good strategies, sound approaches, or competent officers capable of working openly and honestly across agencies.

In 2008, Dallas Sheriff's deputies with the North Texas Auto Theft Task Fore were investigating big-rig thefts and actually, knowingly allowed one of their informants to participate in an armed robbery in the next county which they chose not to monitor or prevent. Then the deputies failed to cooperate with Dallas PD's commercial auto theft unit or the Ellis County DA when they investigated the crime.

That episode makes me think the problem isn't that nobody is focused on commercial vehicle theft, particularly in North Texas where Hamilton said the problem is greatest, but that detectives are more focused on turf and protecting their informants than solving the problem. If Dallas deputies wouldn't share information through their regional task force, I don't know what would make them do so with a statewide entity.

Perhaps a new statewide task force would assist in breaking down these kinds of turf-driven communication barriers, which would be a plus. OTOH, a new entity fighting over turf could exacerbate the problem. Quien sabe? Better strategies may be just as or more necessary, even, than more manpower. Either way, it's not the case that without a new, million-dollar task force nobody's focused on these crimes.

Thursday, December 24, 2009

Christmas behind bars

The title of this post is the headline of a story from the Odessa American interviewing inmates and family members about the emotional strain placed on them during the holiday season.

Sleazy telemarketers capitalize on public sympathy for fallen police

I agree with Charley Wilkison on this one:
Nonprofit groups with ties to law enforcement have your number and they're dialing it this Christmas.

A review by The Dallas Morning News found that several charities have spent up to 89 percent of the money they collect on telemarketers, cutting deeply into what they can spend on programs.

Some say the figures show that a Texas law regulating telephone solicitation by law-enforcement-related groups isn't working.

"When your spending is upside down like that, you would have to ask yourself as a consumer, 'Are they a telemarketing organization or are they legitimately representing the concerns of law-enforcement officers?' " said Charley Wilkison, spokesman for the Combined Law Enforcement Associations of Texas. ...

Wilkison, the CLEAT spokesman, called phone solicitation an "illegitimate funding stream," but he didn't single out any group for criticism.

"Texans have big hearts. They hear that an officer is killed in the line of duty and it touches them. They think they are giving it to a widow and an orphan, and the fact is they are not," he said.
I got one of these calls at home the other day and turned them down, more offended by it than inspired to generosity. Looking at the data at the end of the Dallas News story, this bizarre niche has turned into a lucrative industry of telemarketers profiteering off public sympathy for fallen police. Pretty sleazy and manipulative, if you ask me.

Fingerprint examiner: 'They put pressure on you shamelessly'

Having recently seen Houston PD release a majority of its fingerprint examiners for errors and possible misconduct, I was interested to see this story from Missouri Lawyers Media describing how police sometimes pressure forensic fingerprint examiners to match prints to their suspects:
A police officer rushes up to the fingerprint examiner and pleads for help.

The suspect sitting in the interrogation room is as guilty as can be, the officer insists, and a confirmed fingerprint match would surely bring about a confession.

Not exactly the environment to produce an unbiased examination.

But neither is it far-fetched in the sometimes boiling climate of crime-fighting. Police officers want arrests to stick, they want to get criminals off the street, and if the system allows them such access to the key processors of information, well, some officers will take advantage.

"They put pressure on you shamelessly," Pat Wertheim, a longtime fingerprint examiner, said. "I've felt it. "
Forensic examiners should have no access to case details or other information about suspects when they perform forensic analysis, but many labs operate on exactly the opposite assumption, considering themselves part of the team instead of an independent, scientific voice.

Whenever you see TV shows like Bones or CSI portraying analysts as intimately involved in detective work, they're flaunting best practices for preserving the scientific validity of forensics. That's how you end up with situations like the one in Los Angeles where fingerprint examiners falsely accused at least two people and potentially tainted hundreds of other cases.

The National Academies of Science earlier this year published its conclusions that fingerprint examination and other comparative forensic disciplines do not have a substantive scientific basis and may be unduly influenced by cognitive bias. This example demonstrates the mechanics of how that bias might play in the field.

Wednesday, December 23, 2009

Can Dewhurst's budget cut goals be met by closing TDCJ prison units?

To meet Lt. Gov. David Dewhurst's budget-cut goals for the Texas Department of Criminal Justice, reports Jason Embry at the Austin Statesman, "the state’s criminal justice division would need to trim $218 million. Where are the smart cuts there as the agency is still struggling to properly staff many state prisons?,” he recently asked.

Actually, IMO Jason's question answers itself. Since TDCJ is "struggling to properly staff" its prisons, the "smart cuts" would come from reducing the number of prisoners and prison units in order to safely staff the ones that remain.

As a thought experiment, what would be required to achieve Dewhurst's goal of saving $218 million per biennium at TDCJ if it came entirely from the institutional division? Looking at TDCJ's widely varying cost-per-prisoner at each unit (and excluding medical facilities whose high costs stem from the additional services provided), several older TDCJ units stand out as especially expensive:
  • Jester 1, Richmond, 323 prisoners, built in 1885, prisoner cost per day: $71.04
  • Vance Unit, Richmond, 378 prisoners, built in 1885, prisoner cost per day: $54.26
  • Goree Unit, Huntsville, 1,321 prisoners, built in 1909, prisoner cost per day: $47.27
  • Central Unit, Sugarland, 1,060 prisoners, built in 1909, prisoner cost per day: $43.10
Closing those four units would save $110,657,684 per biennium and reduce capacity by 3,082 prisoners. Next let's look at larger, rural units with chronic understaffing - mostly areas where prisons where located for ill-conceived economic development purposes.
  • Dalhart Unit, Dalhart, 1,356 prisoners, built in 1995, prisoner cost per day: $31.90
  • Smith Unit, Lamesa, 2,125 prisoners, built in 1992, prisoner cost per day: $35.36
  • Wallace Unit, Colorado City, 1,502 prisoners, built in 1994, prisoner cost per day: $38.10
These three chronically understaffed prisons cost $128,204,498 per biennium to run and collectively house 4,983 inmates.

Closing those seven units would reduce capacity by a little more than 8,000 beds and save the state $272,212,962. The $54 million above and beyond Dewhurst's savings requirement could be reinvested in more intensive community supervision and reentry services for parolees.

That's my best guess at how to safely cut $218 million from TDCJ's budget. Taking it away from treatment and diversion programs would necessitate even more expensive prison building in the near term. That would be cutting off the nose to spite the face.

Such a modest (5%) reduction in TDCJ incarceration capacity - while dramatically bolstering supervision and reentry services for parolees - could be fairly easily accomplished using mechanisms already in place. After all, more than 60% of TDCJ inmates are already parole eligible, and strengthened probation and diversion strategies like mental health and drug courts have shown remarkable success at reducing revocations to prison. Even a slight uptick in the parole rate coupled with more rigorous compliance by probation departments with state-funded diversion strategies could reduce the prison population that much in a very short time.

In Washington when it's time to pay the piper, Congress just runs up a larger debt tab with the Chinese; state governments don't have that luxury and when revenue goes down, real-world budgets decline. So if cuts are forced on TDCJ, closing its most expensive and understaffed units would be the safest way to slash the budget without undercutting successful diversion strategies that have recently reduced incarceration pressures.

See related Grits posts:

Clemency in the Rick Perry era

Digging around this morning in the Board of Pardons and Paroles recent annual reports, I compiled this table regarding recent gubernatorial clemency decisions. These data reflect the number of full pardons considered by the board and the number approved by Governor Rick Perry:

In my own mind, I probably hadn't given the parole board enough credit for how many clemency recommendations they make compared to the meager number Governor Perry ultimately signs off on. They recommended 147 people for full pardons during this period, and Governor Perry signed off on just 38 of them - many of those DNA exonerees. Overall, among those seeking a full pardon whose cases were heard by the full parole board, just 4.2% ever received clemency.

(Slightly) higher Texas parole rates helping reduce overincarceration

Via Sentencing Law & Policy, I noticed this AP article predicting the United States' overall prison population may decline in 2009 for the first time in decades. The article contained this Texas tidbit:
the economic crisis forced states to reconsider who they put behind bars and how long they kept them there, said Kim English, research director for the Colorado Division of Criminal Justice.

In Texas, parole rates were once among the lowest in the nation, with as few as 15 percent of inmates being granted release as recently as five years ago. Now, the parole rate is more than 30 percent after Texas began identifying low-risk candidates for parole.
I replied thusly in the comments about that particular claim:
I don't recall Texas' parole rates ever being at 15% anytime in recent memory. There has been an increase, but it's much more modest - from about 27% several years ago to 30-31% today. But when you've got 160,000 prisoners and release 75,000 per year, that 4% bump is enough to make a big difference b/c our prison system is right at capacity.

Also, Texas' rising parole rate isn't really a money-driven decision, at least not directly. Instead, the parole board for years had refused to release DWI and drug offenders who'd not received treatment while incarcerated. In 2007 and 2009 the Texas Lege invested significantly in treatment programs in and out of prison (to avoid even more expensive new prison building), and now that those resources are available the parole board has been releasing those sorts of petty offenders at higher rates.
I was citing those stats from memory, but looking at the Board of Pardons and Paroles' annual report (pdf), I was pretty close. Texas' 2008 parole rate was about the same as in 2004 (30.74% compared to 30.37%), but it dipped as low as 26.26% in 2006. Here's the data for recent years:
2004: 30.37%
2005: 27.50%
2006: 26.26%
2007: 29.82%
2008: 30.74%
That said, even as straight-up parole rates increased, the rates of approval for prisoners eligible for release under the oxymoronically named "Discretionary Mandatory Supervision" (DMS) have been declining steadily over the same period - from a 58.11% approval rate in 2004 to 49.97% in 2008 - somewhat mitigating the benefits from higher parole rates. DMS represents about half the number of TDCJ releases compared to parole, but it's still a large number.

By my calculations, if DMS approval rates in 2008 had been the same as in 2004, the parole board would have released 1,450 more prisoners. Then we really could start the debate about whether it's time to close one or more prisons.

There are lots more data in the parole board's annual report that may be fodder for future additional posts.

Tuesday, December 22, 2009

What solutions exist for witness intimidation on both sides in criminal cases?

Catching up on my newspaper and blog reading this morning, I ran across two high-profile stories from outside of Texas on the subject of witness intimidation that deserve Grits readers attention:

By Criminals: From the Philadelphia Inquirer, there's a must-read series titled "Witnesses fear reprisal and cases crumble." According to this report, "Witness intimidation pervades the Philadelphia criminal courts, increasingly extracting a heavy toll in no-show witnesses, recanted testimony - and collapsed cases." A former prosecutor sums up the problem with this statement: "When people would ask me if I could guarantee their safety, I would say, 'Unfortunately, I cannot.'" (Just a taste of a massive series, btw, the whole thing is well worth a read.)

By Prosecutors: Meanwhile, via TalkLeft, I was fascinated to read a ruling (pdf) from U.S. District Court Judge Cormac J. Carmey dismissing a federal prosecution against William Ruehle, former CEO of Broadcom, finding that federal prosecutors had "intimidated and improperly influenced" three witnesses. In one particular instance, "The government met with [the witness] on 26 separate occasions and subjected her to grueling interrogation during which the government interjected its views of the evidene and, at least on one occasion, told her that she would not receive the benefits of cooperation unless she testified differently than she had initially in an earlier session." Jeralyn called Carmey's ruling the "strongest condemnation of prosecutorial abuse I've ever read."

Both types of witness intimidation are serious, endemic problems, though the brand being discussed in Philadelphia is much more frequently criticized. The Denver Post ran an also-excellent series on the topic a couple of years ago, finding that:
Only a handful of states have comprehensive witness protection programs and most do nothing to protect witnesses. Colorado's program has a $50,000 a year budget - cut from $100,000 this year by state lawmakers - which can be used to buy witnesses bus tickets or help them move to a new apartment.

But in the four years before [two local witnesses] were killed, the state spent an average of $29,895 a year protecting witnesses statewide, less than the amount Denver spends to plant flowers.
Most states including Texas and apparently Pennsylvania don't have comprehensive witness protection programs analogous to the feds. District Attorneys could conceivably spend asset forfeiture funds for that purpose, but I've never known one to do so. (For that matter, if I had my druthers, we'd be spending the Merida Initiative money in Mexico on witness protection instead of buying the Mexican Army helicopters.)

Regarding witness intimidation by prosecutors, that's arguably just as common and insidious a problem - one that's as difficult to solve as witness intimidation by crooks because prosecutors enjoy massive power and discretion combined with near-complete freedom from liability. In such a setting, with a mindset that one is fighting for the righteous cause of "justice," the line can be grey indeed between liberty and license.

In Florida this year, their legislature passed "Rachel's Law" which, among other protections, requires that law enforcement must "Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant." That's a start.

But the witnesses being coerced in the Broadcom case were wealthy, educated people, presumably with high-dollar attorneys, and they still could not stand up to the overweening power prosecutors brought to bear to secure what appears to have been false testimony. Judge Carmey said she had "absolutely no confidence" that one witness' statements reflected her own memory as opposed to "what the government thought her recollection should be." (Jeralyn's right, you really must read the whole thing to get a sense of how disgusted the judge is with the US Attorneys' alleged misconduct.) Besides having strong judges willing to stand up to abuse, I don't know how you police such behavior.

Let me know in the comments: Which type of witness intimidation do you think is more common? Which is the greater danger? What solutions might exist for each type of witness intimidation besides traditional witness protection programs and strengthening the right to counsel?

Monday, December 21, 2009

I know, you're shocked: Texas fines, fees, court costs went up in 2009

Just in from the Comptroller:
Let's run through a few highlights from this rather dry document (N.b., see the correction/clarification below):

As usual, what we see here is for the most part a one-way ratchet: Only new fees are created and costs only ever go up. Fees charged for documents and routine job functions of the courts are increasing. (The only notable exception to that trend is the allowance for waiver of a fee for expunction related to an acquittal.)

There's a new fee for being arrested:
WARRANT FEE: A defendant convicted of a felony or misdemeanor shall pay $50 for a law enforcement agency’s execution of an issued arrest warrant, capias or capias pro fine, if the agency requests the court, not later than the 15th day after the date of execution, to impose the fee.
And there's another fee for not arresting you but instead writing a notice to appear in court:
Arrest Fee: $5 for issuing a written notice to appear in court following the defendant’s violation of a traffic law, municipal ordinance or penal law or for making an arrest without a warrant. (Art. 102.011, Code of Criminal Procedure)
There's a new $25 fee for anyone who elects to pay fines on a time payments, split 60-40 between the state and county courts..

The new veterans court program notably includes a "reasonable program fee not to exceed $1,000" along with "a testing, counseling and treatment fee in an amount necessary to cover the costs of any testing, counseling or treatment performed or provided under the program."

Adult probationers and parents of youth committed to TYC will be assessed a $34 fee to have their DNA swabbed for inclusion in the statewide database.

I also learned for the first time from this document about a bill that received little attention during the 81st Legislature (certainly by me) but which threatens to create a lot of mischief for folks caught up in the spiral of criminal fines and civil fees associated with unlicensed drivers and no-insurance tickets. Dubbed "Eric's Law," here's the comptroller's description:
House Bill 2012, effective Sept. 1, 2009, amends Section 521.457, Transportation Code, by enhancing the penalty for the offense of operating a motor vehicle without a valid driver’s license from a Class C misdemeanor to a Class B misdemeanor if it is shown at trial that the person was operating the motor vehicle in violation of the motor vehicle liability insurance requirement, and to a Class A misdemeanor if it is shown at trial that the person was operating the motor vehicle in violation of that requirement and caused or was at fault in a motor vehicle accident that resulted in serious bodily injury to or the death of another person.
With one in four Texas drivers still uninsured despite millions of no-insurance tickets given, I seriously doubt this new law will change the number of uninsured drivers on the road. And the reason Texas' has so many drivers without licenses is that after they get a no-insurance ticket, the state suspends their driver licenses if they can't pay their steep "Driver Responsibility Fee," which is a civil penalty paid for three years after the offense on top of any criminal fines.

(BTW, I learned last week that the Department of Public Safety will next month finally be releasing its long-awaited new rules on indigency and amnesty programs for the Driver Responsibility Program. Stay tuned on that score. State Rep. Sylvester Turner's staff is trying to convince DPS to share the proposed rules with stakeholders before posting them in the Texas Register.)

HB 2012, authored by Dallas-area Democrat Allen Vaught, will discourage indigent drivers from complying with the law by increasing fees and fines so high they can never pay their fines and fees and also pay for auto insurance. If Texas cities had good public transportation, that might not be a problem. But with 25% of drivers uninsured, if starting tomorrow they all complied with the law and quit driving, it would actually disrupt the economy from so many people unable to work.

This change won't do any more than the old law to encourage drivers to buy insurance or renew their licenses. Instead it will jack up the fines they owe to an unreasonable amount, needlessly fill up the jails with more low-level cases, and, for indigent drivers, compel counties to pay for more attorneys for Class B misdemeanors. In other words, the new law creates a lot of problems with no real upside but squeezing revenue from a source (drivers who can't afford insurance) who already cannot pay for their basic obligations as a driver.

None of that's the Comptroller's fault, of course. She's just the messenger. It's just a bit of a Grinch-ish message to deliver every biennium, much less during a recession, that "fines and fees are going up."

CORRECTION/CLARIFICATION: A couple of commenters rightly pointed out that I misinterpreted the comptroller report by saying that all the new fees described in it where passed this year. In fact, this document updates courts' fee list overall - each of the listed fees was not created this session, though some of them were like those for veterans courts and the boosted fines in HB 2012. I regret and apologize for the error.

SCOTUS will revisit crime lab confrontation decision

Over the weekend the New York Times ran a story by Adam Liptak previewing a US Supreme Court case ("Justices revisit rule requiring lab testimony," Dec. 19) called Briscoe v. Virginia that prosecutors hope will overturn the Melendez-Diaz case from last term requiring confrontation for testimony by crime lab workers. (Lyle Denniston at SCOTUSBlog discussed this case last summer soon after the court agreed to hear it; oral arguments will happen January 11. See the SCOTUSWiki page for briefs and lower court decisions.)

The case doesn't affect Texas state courts, which already have confrontation procedures which comply with the SCOTUS ruling, but it's important both for federal cases and because the debates surrounding the issue reach core questions about errors and misconduct uncovered in the last few years at the nation's crime labs: Should crime lab work product be considered neutral and scientific or does it require cross-examination just like other kinds of testimony put on by the state in criminal cases?

Another story published in the Times two days before ("Report condemns police lab oversight," Dec. 17) to me demonstrates precisely why crime lab testimony should require confrontation:
The New York State Police’s supervision of a major crime laboratory was so poor that it overlooked evidence of pervasively shoddy forensics work, allowing an analyst to go undetected for 15 years as he falsified test results and compromised nearly one-third of his cases, an investigation by the state’s inspector general has found.

The analyst’s training was so substandard that at one point last year, investigators discovered he could not properly operate a microscope essential to performing his job, the report released on Thursday said.

And when the State Police became aware of the analyst’s misconduct, an internal review by superiors in the Albany lab deliberately omitted information implicating other analysts and suggesting systemic problems with the way evidence was handled, the report said. Instead, the review focused blame mostly on the analyst, Garry Veeder, who committed suicide in May 2008 during the internal inquiry.
Who thinks it would be wise to allow this fellow to testify in cases without cross-examination? How about his co-workers who must have known about his shoddy practices and said nothing? Is it really reasonable to just allow the state to produce a piece of paper from people such as this and allow that to be admitted as evidence without the right to confrontation? Surely this would be the wrong time to revisit Melendez-Diaz, unless they intend merely to clarify or strengthen the ruling.

Not to be outdone by New York, the Houston crime lab recently cut loose several long-time fingerprint experts accused of sloppy lab work. In recent years, they've had drug-analysis technicians verify the existence of drugs without running any tests. An HPD ballistics analyst misidentified not only scoring patterns on bullets but the weapons caliber. An employee in Houston PDs serology lab allegedly falsified results to help secure convictions. Investigators who examined these problems found Houston's crime lab had a "team spirit" mentality which had sometimes encouraged them to withhold exculpatory evidence. I could go on and on.

This problem is not limited to New York and Houston: A Texas DPS breath test technician allegedly faked records and committed fraud. A DPS crime lab in Lubbock supplied false evidence that convicted Brandon Moon, one of Texas' early DNA exonerees. A DPS serology lab in McAllen was temporarily closed because of errors. Statewide, autopsy reports are frequently shoddy, incomplete or flat-out erroneous. All these examples show why the state shouldn't just be allowed to submit a piece of paper to the court and insist it be taken as fact without cross-examination just because the cop who wrote it wore a white jacket and worked behind a door labeled "Laboratory."

In Texas, the confrontation requirement is satisfied through a "notice and demand" process where the defense is notified of the evidence and may demand the right to confront the witness at trial if they choose. Our system processes cases at a high volume and extending this right to defendants has not significantly retarded the ability to prosecute crime. In most cases the right is waived, but there have been enough examples of unreliable crime lab testimony that it seems important to retain it for cases where there's reason to doubt the results or the work of a specific examiner. Notably, Texas Attorney General Greg Abbott is not a signator on the amicus brief (pdf) filed by state attorneys general.

The fight here is over the vote of rookie Justice Sotomayor: All the other justices took sides in last term's 5-4 vote, so if Obama's new appointment reverses David Souter's vote, the outcome could change 180 degrees. That's another reason to care about this case: It will be an early indicator of Justice Sotomayor's approach on SCOTUS to criminal cases. Will she side with Justice Scalia, who is confrontation's greatest champion on the court? Or will she follow the lead of Chief Justice Roberts and Justice Alito, who would overlook logical or constitutional inconsistencies to cater to practical concerns? Quien sabe?

I don't know which way the court will go, but backing confrontation may be an easier vote for the ex-prosecutor Sotomayor with the crime labs in her home state demonstrating "pervasively shoddy forensics work."

Sunday, December 20, 2009

2011 Budget Blues: Close prison units to shave 2.5% at TDCJ

Lt. Gov. David Dewhurst says Texas state agencies must reduce their budgets by 2.5% in each of the next four years to account for declining tax revenues, Jason Embry at the Austin Statesman reports ("Legislative leaders eye spending cuts to deal with looming budget hole," Dec. 20), providing an excellent short summary of the underlying source of the state's budget woes:
As compared with a year earlier, sales tax collections were down 14.4 percent in November, and those kinds of returns have hastened budget-cutting talk. But what's really driving the conversation is a decision that lawmakers made in wealthier times to put property tax cuts at the top of the state's permanent priority list.

In 2006, facing an order from the Texas Supreme Court, lawmakers passed a one-third reduction in school property taxes for operations, committing the state to spend $7.1 billion every year to hold those taxes down. But the tax increases that lawmakers passed at the same time to replace that money — most notably a revamped business tax — produce less than $3 billion per year.

So every two years, the state has to pull more than $8 billion away from other priorities, such as public schools, universities or prisons, to pay the rest of the cost of property tax cuts. Doing so wasn't too difficult when the state had surpluses, but now that they're gone, the property tax cuts threaten to eat up any revenue growth the state sees, even though many homeowners never saw much of a decrease in their tax bills.

To meet the state's commitment to hold down property taxes, to pay for an increasing number of people enrolling in public schools and colleges and joining Medicaid rolls and to replace the stimulus dollars used to pay for the current budget, lawmakers in 2011 might have to come up with $15 billion or more to balance the budget, which now totals $182 billion over two years.

That's a daunting number, but Dewhurst said he is convinced the state can close that gap without severe cuts in state services.
At the Texas Department of Criminal Justice, a 2.5% cut would amount to more than $125 million over the biennium. In years past, TDCJ's institutional division (which runs the state's 112 prison units) has been shielded from budget cuts, meaning that in 2003, when agencies were last cut to the bone, the only thing available to slash were treatment dollars.

I hope Texas officials won't make the same mistake in 2011. Instead, by investing more in diversion strategies and expanding on successes from the 2007 probation reforms, the state could actually close one or two prison units - as we've seen in other states - and use those employees to bring other facilities up to adequate staffing.

There are two ways to think about which prison units to cut: "Which units are most expensive?," and "Which units are most difficult to staff?"

If you're talking about the most expensive units, those are mostly TDCJ's older facilities which tend to have higher costs-per-prisoner. (See this post analyzing data on TDCJ unit age and cost.)

If you're talking about those where understaffing is chronic, you'd start in Dalhart, where TDCJ wages and working conditions don't favorably compete with factory farming of hogs or a nascent dairy and cheese-making industry that's cropped up there in the last decade.

There could also be political considerations. The local chamber-of-commerce crowd in Fort Bend County outside of Houston want a prison unit closed because it sits on land that has become increasingly valuable as the city of Sugarland has expanded and an airport was placed near the area. During the Sunset process last year, they were turned down when they suggested TDCJ close the unit and build a new one somewhere else. Perhaps they'd have more success during a budget crunch arguing the unit there should be eliminated outright.

In any event, to avoid massive new prison building in the future it's important that the state not limit budget cuts at TDCJ to probation, treatment and diversion programming, but instead "spread the pain" or even limit it to the institutional division, where they're still short 1,000 guards and could close units without necessarily eliminating jobs.

Now's the time to be thinking about alternative budget solutions because when the Lege session starts a year from now, demands for slashing 9-figure amounts from the budget could be quite immediate.

RELATED: From Sentencing Lay & Policy, "Notable prediction that prison population may decline in 2009."