Friday, December 31, 2010

Happy New Year/Criticizing Christmas Clemency

Happy New Year everybody. Use this as an open thread to help me finish a list of the biggest Texas criminal justice stories of 2010 that I started for today but procrastinated. Sharon Keller's acquittal? John Bradley's bullying of the Forensic Science Commission? The exonerations of Anthony Graves and Michael Green? Speculative jails going bust for lack of inmates? Appellate courts shutting down hearings on the Todd Willingham case and the constitutionality of the death penalty? What else happened this year: What do you think were the biggest stories?
Also, for those interested, and I realize it's not the hottest topic I cover on this blog, the Dallas News today published an op ed I wrote criticizing Christmastime clemency for treating pardons like Christmas gifts instead of the pivotal and neglected check and balance on abuses in the justice system anticipated by the Founding Fathers. (Related: See similar commentary on federal clemency, or the lack thereof, published the same day in the Washington Post.)

Stay safe tonight and have a great new year.

See recent Grits posts on clemecy:

Austin PD: Arrests down, use of force reports up, new police monitor named

I wanted to point out a few links regarding police oversight in Austin that may interest Grits readers. First, the City of Austin hired former Travis County Sheriff Margo Frasier as the new Police Monitor, which is a civilian police oversight position created around the turn of the century. Here's wishing her luck in the new post, though the position is so weak and structurally ineffectual, I fear Frasier will find herself frustrated by the new job.

Meanwhile, though it was completed in November, the City of Austin released its annual use of force report (pdf), euphemistically titled the "response to resistance" report, just days before Christmas. Debbie Russell of the Austin chapter of ACLU has a column in the Austin Post pointing out the most important finding: APD in the past had underreported use of force and new reporting requirements caused use of force totals to dramatically increase. From the report: "In 2008, 1.1% of all arrests resulted in the use of force, as compared to this year’s percentage of 1.7%." Russell thinks the increase was "generally due to new policies and practices in reporting: both with increased supervisory oversight and by using newer technology – reporting immediately on their patrol car computers so papers don’t get lost in the shuffle, or not filled out at all."

Another notable tidbit from the report: "The number of arrests citywide has decreased from 79,427 arrests made in 2008 as compared to 69,130 in 2009." That's a 13% decrease in arrests, which seems like an enormous one-year reduction. Normally the increased use of force numbers combined with declining arrests would raise a serious red flag, but because of the changed reporting protocols it's impossible to know whether violence really increased or was just reported more often. As Russell says, in the past many use of force reports were simply never filed, with APD basically accepting the "dog ate my homework" excuse from its officers. Chief Art Acevedo deserves credit for turning that ignominious trend around.

Less experienced officers are more likely to use force: "In 2009, officers with 1 to 5 years of service submitted the majority of response to resistance reports followed by officers from 6 to 10 years of service." That's in part because APD officers must spend their first five years on patrol, the report notes, and most use of force incidents (52.7% in 2009) occur at dispatched calls. "The number of reports submitted by officers in the 1 to 5 year range increased from 544 reports in 2008 to 859 reports in 2009, a 57.9% increase." Even more notably, use of force reports by officers with less than a year's experience increased 146% from 2007 to 2009, from 58 incidents to 143, though there's no way to tell how much of the increase may be attributed to increased reporting.

Black folks made up 25.4% of arrests - more than double their proportion of Austin's population; Latinos made up 34% of arrests, and white folks comprised 39% of the arrest total. Police were 42% more likely to use force when arresting black folks than with whites, and 36% more likely to use force when arresting Latinos. Force was used in 2% of arrests of blacks, compared to 1.9% for Latinos and 1.4% for whites, and all of those rates have roughly doubled since 2007 (again, at least in part due to increased reporting).

Lots of other detail in the report (pdf) for those interested.

Thursday, December 30, 2010

No federal judges, US Attorneys for Texas

The federal Senate Judiciary Committee sent back a couple of President Barack Obama's federal judicial appointees in Texas' Southern District, contributing to already growing immigration case backlogs there, with Texas Sen. John Cornyn opposing them along party lines.

Similarly, nearly two years into Obama's presidency, one wonders when the hell Texas will ever get any new US Attorneys? Given gridlock in the Senate and Cornyn's steadfast opposition on the Judiciary Committee, I wouldn't be surprised to see the 2012 election cycle come and go without Texas ever having anyone appointed to those posts. At this point, anyone who took the USA job would just be getting the office furniture re-arranged when the next national election cycle comes up and they could (and judging from 2010, arguably would) lose the job. What masochist would even subject themselves to that? And what kind of "tuff on crime" conservative would rather see federal prosecutors' jobs go unfilled than give the president a "win"? Thanks for nothing, Sen. Cornyn.

Perry granted 3.5% of total clemency requests

Just to put a final coda on Grits' recent series regarding gubernatorial clemency under Rick Perry, I got back the results of an open records request to discover a piece of data that was inconsistently (and apparently incorrectly) reported in the last decade of annual reports from the Board of Pardons and Paroles: How many total clemency applications does the agency receive each year? The reports gave clear data about the number of cases considered each year by the board, but not always the larger number of clemency requests including those the board didn't hear.

According to the supposedly apples-to-apples numbers sent to me by the Clemency division at the Board of Pardons and Paroles, during Rick Perry's tenure the BPP never received more than 756 requests for clemency (in 2001), with just 574 requests in 2009. I've added the new data to the Rick Perry clemency chart I've been slowly constructing here on Grits over the last couple of years:

The part I still don't understand - and I've asked the BPP for clarification - is what the numbers from their annual reports were referencing. The BPP reported processing 1,061 clemency requests in 2009 in its annual report, 1,555 the year before that, and on up to much higher numbers from FY 2001-03 that clearly weren't methodologically similar to reporting in the later years. Asking for clarification, I was given these new numbers that don't correspond to anything in the annual reports at all that I can see. Go figure. I'll let you know when I get an answer back on that one. (See the update below.)

In the meantime, we can now give a statistic that wasn't possible to state with certainty before (and which would have been underestimated, ironically, based on faulty public reporting): Texans requesting clemency (of all types) during Rick Perry's tenure as Governor had a 3.53% of having it granted. If one gets a favorable board recommendation, though, the odds go up considerably to 34.55%. Still, Gov. Perry failed to grant clemency nearly 2/3 of the time the board recommended it.

It seems like that took a lot of work to get to a number that should have been readily available. Of all the data the Board of Pardons and Paroles should get right in its reporting, how many clemency requests they receive each year seemingly ought to be right up there near the top.

UPDATE: Soon after hitting "Publish" on this post, I got back a partial explanation regarding total-request data from the BPP annual report: Clemency Director Maria Ramirez wrote to say that the higher figures represented the number of "board member votes" for clemency, so if 18 board members voted that'd be 18 votes for each approved clemency request. This appears to mostly, but not completely, explain the discrepancies back to 2004. For '01 to '03, though, the differences remain a mystery. That was a really obscure way to report the data. The above Grits chart appears to be the first time the actual numbers for total clemency requests have been published publicly.

See related Grits posts:

New DA in Waco off to rocky start: Announces new hire who's then indicted

Getting the most possible use of the day pass I bought yesterday to the subscription-only Waco Tribune Herald, I should mention recent news from their District Attorneys office, where 38-year old GOP challenger Abel Reyna defeated longtime Dem DA John Segrest, and wants to model himself on Williamson County DA John Bradley. Reported the Trib:
Reyna said he helped define goals for his office by visiting district attorneys’ offices in Williamson and Collin counties. He said those counties’ prosecutors have tough, take-no-prisoners reputations around the state. He wanted to know why.

“When I got elected, I started digging around to find out what made a great district attorney’s office. Williamson County came up throughout the state as one of the top counties for being tough on crime. I want to surpass that. That became my goal,” Reyna said.
The part that strikes me most about that quote is the sentence, "When I got elected, I started digging around to find out what made a great district attorney’s office." Really? You mean you ran for, and were elected, DA without a clue what it would take to do the job? That's something you started thinking about AFTER election? Yikes!

Reyna wasn't the only one doing some hard thinking after his election. A third of felony prosecutors in the office (8 of 24) resigned immediately, making Murray Newman's complaints of the talent drain at the Harris DA's office seem meager.  Then Reyna announced his first new hires, including a first assistant from Williamson County and senior prosecutor Greg Davis from Collin County, only to have Davis indicted by a Collin County grand jury almost immediately thereafter for tampering with government records, a state jail felony. The Dallas News reported that Davis admitted in court documents to [the DA's Office] altering employee time records to make it appear employees were working when they were not - a charge the DA's office itself had made in gaining indictments against Collin County District Clerk employees. Reyna backed off the decision to hire Davis in light of the criminal proceedings. (Ed. note: The original version made it sound as though Davis himself changed the time records when in fact the News only reported that he filed a motion to recuse the DA's office. I apologize for the misstatement.)

The whole Collin County brouhaha is a complete zoo, with the outgoing DA, the District Clerk, and a district judge in a pissing match that at times has threatened to engulf their whole legal system. Bill Baumbach's Collin County Observer blog is a good place to go to analyze the debacle, since it's one of those instances where you can't tell the players without a program (see here, here, here, here, and here). Given the politicized nature of all of these criminal proceedings - both the ones initiated by Davis and the ones against him - I suspect the charges could be overblown. The incident strikes me as the kind of inevitable, petty infighting that occurs in an environment where Republicans have vanquished all Democrats and begin to turn on one another (witness the Speakers race in the Texas House). Still, Texas' latest John-Bradley wannabe is getting off to a rocky start in Waco.

MORE: See additional coverage of the Collin County indictments from the Dallas News.

Grayson County abandoned speculative jail building scheme

After a majority of the commissioners court spent 2008 and 2009 pushing to build an unneeded, 1,500 bed jail, Grayson County has wisely scaled back their jail building ambitions, approving a contract this week to add 96 beds to their current facility. Even that, IMO, could probably have been delayed. The Grayson jail's current capacity is 432, but as of December 1 (pdf) there were only 315 inmates there, including 30 being held on contract. But at least a 96-bed expansion is clearly designed to fill the county's needs rather than launching some grandiose, speculative venture to compete in the slumping private prison market..

The best part: The county can pay for the smaller jail with cash on hand instead of issuing long-term debt that would require raising taxes. There's a takeaway lesson from this episode that one would think should resonate with fiscal conservatives: Smaller government costs less; jails are government; therefore smaller jails cost less.

Indeed, one need only look at the jail fiascos in McLennan and Johnson Counties - where private companies convinced commissioners to build large facilities they didn't need that now sit empty with no contracts to pay the bond debt - to see the mess Grayson County would be in now if they'd actually built a speculative 1,500 bed jail. Grayson taxpayers should thank the police union CLEAT for suing to stop the jail vote last year; given this outcome, it saved them a lot of money and headaches.

See related Grits posts:

Wednesday, December 29, 2010

Double dipping not cause for firing, says civil service examiner

A Waco police detective was reinstated by a civil service examiner after being fired along with nine others for "double dipping," or working a second job during periods when he should have been on duty at Waco PD. This is the third officer reinstated through the civil service process over the incident. Reported the Waco Tribune Herald (subscription only):
The officers recorded on numerous occasions that they were working an off-duty security job for the Waco Housing Authority while working their city jobs.

The officers who appealed their indefinite suspensions through the civil service process claimed unintentional clerical errors, inconsistent work schedules and faulty memories — not criminal intent — were responsible for their inaccurate time cards.

They also claimed they only did what many officers have been allowed to do and that their actions were consistent with long-standing, unwritten policies approved by supervisors.
Of ten officers given "indefinite suspensions" for doubledipping, "four resigned or retired in lieu of disciplinary action and one did not appeal." Clearly they'd have been better off rolling the dice and appealing their cases under the civil service code. Apparently double dipping is something police officers in Waco can't be fired for doing.

'Prison Pays'

The Houston Press has published an extensive feature by Craig Malisow on the Geo Group in Texas titled "Prison Pays," in which yours truly is briefly quoted. The story is subtitled, "Despite a history of abuse and bad conditions, private prison corporation GEO keeps getting contracts from the state."

See prior, related Grits posts:

McLennan County cuts jail pharmacy spending as doomsday deal devolves

The McLennan County Jail claims to have saved $1 million this year by prescribing fewer antipsychotic medications and other pharmacy costs. Reports, "In February 2010, pharmacy costs at the jail were $54,619. In September 2010, expenditures were down to $17,372." While I'm certain there's a great deal of waste on the pharmaceutical side of carceral healthcare, that's a 68% reduction, which seems like an astonishing number.

I wonder: Who can or more importantly will evaluate whether those reductions were medically justified or merely economically convenient? The Commission on Jail Standards doesn't have staff with medical training to evaluate such things. Unless there's a federal civil rights complaint and DOJ investigates, I can't even think who might look into such a thing. Maybe it's completely justified and inmates previously were being severely overmedicated. That happens in the juvenile system, and it wouldn't surprise me if there is some unnecessary medication in the adult system as well. But how do we know medically necessary medications weren't reduced? State regulators can't tell and there's nobody with oversight authority to doublecheck those decisions.

The question of whether medical necessity or economics drove the decline in pharmacy expenditures may well relate to the jail's larger economic situation - leveraged to the hilt with not enough revenue to cover its bond debt. Checking in with a day pass at the Waco Tribune Herald (now behind a subscription wall), I notice more jail related news ("County extends jail contract, accepts lower payout," Dec. 29): "McLennan County extended Tuesday an agreement to keep its downtown jail closed for another six months, but the arrangement will yield a substantially lower financial reimbursement than the original deal." "Lower" is relative, though. The county was supposed to receive $240,000 over the last six months and got nothing. Now they're supposed to receive $60K from the contract over the next six months, but could easily again wind up with nothing.

Regular readers will recall that McLennan County (Waco is the county seat) used the county's credit to issue bonds to build a large detention center, one not needed for their own purposes but built as a speculative venture to house inmates on contract, partnering with private prison company CEC to manage the facility. But the contracts never came, so McLennan actually closed their perfectly good, already-paid-for jail in order to move all the inmates into a pay per head contract facility, just so there'd be some revenue to pay the bonds. I found this mind-bogglingly irresponsible - a veritable doomsday deal, it's been called - but for several years before the recent economic bust the practice was all the rage.

Regrettably, the private prison company appears to hold all the cards in the negotiations and is threatening to walk away from the deal entirely, leaving county taxpayers holding the bag. Reports the Trib:
CEC Senior Vice President Peter Argeropulos told the court last week that CEC felt it would be unable to continue paying a monthly fee because the jail still was operating at a loss.

Most of the money that has come in through the facility has been sent to U.S. Bank to cover payments on the $49 million in project revenue bonds that paid for the jail’s construction.

After enough money is accrued to cover the $3.7 million annual bond payments, the county is paid the monthly fees and CEC keeps the rest.

The county is still awaiting its $240,000 that is due for the past six months of the contract. CEC has yet to receive any money from the jail and is covering payroll and operating expenses itself.

Last week, members of the court suggested alternatives to waiving the fee, including a 90-day waiver, deferring the due date of the payment or reducing the monthly fee to $20,000. Argeropulos said at the time he did not think the company would agree with those options.
Without the public really understanding the magnitude of what was happening, commissioners bet the economic farm on this deal. Said one commissioner, "What people have to understand is that so goes that jail, so goes McLennan County." Readers may recall that County Judge Jim Lewis claimed earlier this year that CEC, not the county, was on the hook to pay off the jail bonds. Now it's clear to everyone this was a pure corporate subsidy: The company profits if it succeeds, but if it fails they walk away and taxpayers must pony up for the debt or default and ruin the county's bond rating. In another recent story ("Company operating new Hwy 6 jail asks county commissioners to waive monthly fee," Dec. 22), the Trib reported that:
The county’s bond rating was used to secure the bonds. If the debt service payments go into default, then the county’s bond rating likely would be affected.

“People keep on saying it’s not going to be a debt of the county, but it is going to be a debt to the county if it goes under,” [commissioner Lester] Gibson said. “A whole lot is at stake with our bond rating. If this project fails, it will create a whole lot of systemic problems.”
No kidding! It's a situation so irresponsible that I'd almost say commissioners deserve what's happened to them except it's not really them who're harmed but the taxpayers whose money they were gambling with.

See prior Grits posts on McLennan County jail financing:

News and Views from the Land of Dairy Queen

After he'd commented on the last Grits post, I checked in for the first time in a while at Wise County lawyer Barry Green's blog, Liberally Lean in the Land of Dairy Queen, and noticed these interesting tidbits:
  • "Years ago I was doing an oral argument in front of the Fort Worth Court of Appeals when Justice Dauphinot suddenly interrupted me and tersely asked, "Who wrote this brief?" I paused and meekly said, "I did." She paused, too, before saying, "Thank you. It will be very helpful." She was just screwing with me."
  • "The state prosecutor organization, TDCAA, provides all the forms a prosecutor needs to create a Vampire Weekend program -- including press releases and "talking points".  Hello, big brother."
  • Barry pointed out this story about the recent arrest for DWI of a Fort Worth police officer (see especially the bulleted list at the end of recent incidents), declaring "The wheels are off the Fort Worth PD."
  • And speaking of wheels, Barry pointed to this story I hadn't noticed from Christmas Day about a North Texas cop hit by his own patrol car as a suspect drove away in it at a traffic stop.
  • From Dec. 20, "There's was a guy in an armed standoff with cops at a downtown Dallas restaurant this morning. It got even odder when it was learned that it was the same guy that stole a cop car while handcuffed last week."
Lots of other fun stuff at LLITLODQ, particularly if you're a fan of women's breasts. (SFW, barely.)

Defense bar critiques suggestion for deferred adjudication on DWIs

Now that the defense bar has had a chance to review state Rep. Todd Smith's HB 189 - a MADD-endorsed bill that would allow deferred adjudication for first-time offenders (see earlier Grits coverage here) - several prominent attorneys are expressing serious reservations.

Mark Bennett at Defending People doesn't like the idea. He's argued in the past that Harris County's DIVERT program (which some have criticized as de facto deferred adjudication) makes little sense for defendants given that roughly 95% of Harris County DWI defendants who don't plead guilty have their cases dismissed or prevail at trial.

At The Defense Rests, Paul Kennedy at first thought the legislation seemed promising,. Yesterday, though, he looked more closely at the bill and declared he couldn't support it in its current form, but that "that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted."

After initially offering a more sympathetic view, Robert Guest now says the bill is "a con designed to trick unwary DWI defendants." It's a different breed of cat than usual "deferred adjudication," he notes, and mandates ignition interlocks on the first offense (I'm okay with requiring interlocks on the second offense; the first is unnecessary and unworkable).

My question to these writers and other interested readers: What specific changes would need to be made in the bill to make it palatable? (See the text.) Rather than oppose the bill reflexively, it might make sense to brainstorm about ways in which it would be possible to meet MADD and Rep. Smith halfway. After all, the defense bar opposed it when MADD convinced the Lege to eliminate deferred for DWIs in the first place. Or maybe deferred adjudication itself is simply an idea that never really fulfilled its promise and deserves to be relegated to the dust bin of history. I'm not at all sure where I come down on these issues without giving it a lot more thought. Let me know your opinions in the comments.

UPDATE: See a comment string discussing the bill on the District and County Attorney's Association User Forum.

Cuts to mental health will drive up county jail expenses

The Houston Chronicle editorial board joins the chorus criticizing plans to cut mental health services in a way that would strand mentally ill inmates and associated expenses in local jails. The editorial opens:
What's wrong with this picture? The largest administrator of mental health services in Harris County is the county jail. It's a symptom of a national problem: There are now more than three times more seriously mentally ill individuals in jails and prisons in this country than in hospitals.

But in Texas, that ratio is almost eight to one. In the Harris County Jail, the third largest in the country, on any given day 20 to 25 percent of the 10,000 or so inmates are receiving psychotropic medications. And jailing these inmates isn't cheap: According to the National Alliance on Mental Illness of Texas, each costs taxpayers between $30,000 and $50,000 a year, compared with $22,000 for those without mental illness. And the mentally ill tend to stay in jail or prison two to five times longer.

It's not the jail's own funding, however, that is precipitating the crisis: It is the fact that county Sheriff Adrian Garcia's office contracts with the Harris County Mental Health and Mental Retardation Authority to provide its mental health services, and MHMRA, already struggling financially, is facing severe budget cuts.

When the Department of State Health Services announced major cuts earlier this year, much of it from MHMRA, Dr. Steven Schnee, MHMRA's executive director, told KHOU TV, "It's really tragic how we are treating these conditions …. People with these serious conditions don't go away. They will resurface someplace and we will pay as a community." He said that would mean higher emergency room costs and higher crime.
In reality, cuts to mental health services - particularly competency restoration - don't really save a lot of money; they just shift costs to counties and local hospitals in an unfunded mandate that arguably ends up costing taxpayers more.

Tuesday, December 28, 2010

Federal legislation would implement NAS forensic science recommendations

At the federal level,  Sen. Patrick Leahy (D-Vermont) has released a preliminary draft of a bill called the Criminal Justice and Forensic Science Reform Act which would implement many of the recommendation from the National Academy of Sciences report on the forensic sciences.. I was particularly pleased to see the inclusion of "$90,000,000 per year 2012 to 2016 ... for grants for forensic science research."

I haven't had a chance yet to look through this bill thoroughly but thought I'd pass the relevant links along. Go here and here for blog posts summarizing the bill and here for the actual bill language.

'It's Time to Close Prisons in Texas'

Reacting to this Grits post, Matt Kelley at's Criminal Justice blog has created an online petition titled "It's Time to Close Prisons in Texas," asking Texas Department of Criminal Justice chief Brad Livingston to consider prison closures in budget cutting plans being prepared for the legislative session next spring. See this related blog post.

Argues Kelley: "When you keep 112 prisons open and lay off corrections professions, you are putting the safety of officers and prisoners at risk. Rather than cutting prison staff or services, you should seriously examine closing several prisons and consolidating operations. It’s the right move for public safety and for public funds. Other states have closed prisons as their populations declined, and their experiences could provide a roadmap for TDCJ in 2011."

Go here to read and sign the full petition.

The making of an unfunded mandate: Cuts to mental health would dump costs on county jails

Around the state, reporters and local officials are waking up to a sleeper issue that this blog has been sounding the alarm about for years: The danger posed to county budgets, especially local jails, by cuts in the number of state mental hospital beds and mental health care generally - an issue likely to reach a critical stage if state hospitals are cut further next spring by the 82nd Texas Legislature. A TV station in El Paso is the latest to pick up this meme; reports KFOX-TV:
"Legislatively, the movement for treating mentally ill people is going from the state and it's going to local governments," [El Paso County Sheriff's Lt. Michaela] Hebeker told KFOX 14.

Funding of mental health programs could turn into a monumental shift come January and the 82nd Texas Legislative session.

"We know that cuts are inevitable, but we want to make sure the cuts aren't made just for the sake of cuts that end up cost-shifting huge amounts to local communities, local tax payers," said Gary Larcenaire, CEO of El Paso Mental Health Mental Retardation.

Larcenaire said he's putting together a strong case for state legislators to keep the mental health funding that he said is so critical to El Paso.

He said if funding is cut for the local state hospital, for MHMR or other local entities, then mental health inmates will stay in the jail longer, and more mental health patients will end up in the UMC emergency room.
See prior, related Grits posts:

MADD endorses deferred adjudication for first-offense DWI

I'm incredibly pleased to see Mothers Against Drunk Driving backing off some of its more draconian policies in recent months. First they declared they wouldn't oppose abolition of Texas' Orwellian-named "Driver Responsibility" surcharge, and now Paul Kennedy points to an Austin Statesman article in which MADD endorsed allowing deferred adjudication for drunk driving offenses, in part to boost conviction rates and to avoid having DWI cases plead down to non-alcohol-related offenses. MADD's position is especially surprising since they were the primary champion of eliminating deferred for DWIs in the first place.

Smith's bill strikes me as a much better solution to the problem than Austin Police Chief Art Acevedo's DWI-Lite suggestion. Here's a notable excerpt from the Statesman story in which even Williamson County DA John Bradley endorsed reinstating deferred adjudication for first-time DWIs, which was eliminated as a sentencing option by the Lege some years ago in a fit of overzealous pique:
Supporters say the plan could ease court backlogs by routing cases out of courtrooms, give prosecutors a new negotiating tool and remove the threat of jail that makes some first-timers refuse guilty pleas in DWI cases.

By the time a House legislative committee held a hearing on the issue in August, more than 122,000 misdemeanor DWI cases were pending in state district courts. Prosecutors argue they are too limited in the options they can offer first-time offenders.

"Our alternatives that we can offer have diminished such that our bargaining positions have weakened, and cases are backing up," testified Richard Alpert, a 24-year Tarrant County prosecutor who has become a key figure in the fight against drunken driving.

The practice of convicting first-time offenders on reduced charges is more prevalent in counties near San Antonio and Houston, where backlogs have become a significant concern, witnesses reported during the hearing. If the drunken driver repeats the offense, critics worry there is then no record of a first conviction, and no grounds to enhance punishment for repeat offenses.

"The other thing this will do is hopefully make sure that we have a record of that drunken driving incident," said Williamson County District Attorney John Bradley, who expressed support for the measure. ...

In counties where the practice of reducing charges is not as prevalent, such as Travis and Williamson, the move could still ease backlog concerns, several prosecutors said.

"This would be a first step to putting some sanity in that system as long as people make sure to retain it only for the true first-time offender," Bradley said.
Paul Kennedy notes that "My quibble with Rep. Smith's proposal is barring nondisclosure in DWI cases since law enforcement and state licensing agencies have access to the arrest records of defendants whose cases were disposed of through deferred adjudication." He's right, of course, and in an ideal world I wish Rep. Smith would tweak his bill as Paul suggests. But Smith's compromise is one I'm willing to make in exchange for the benefits of avoiding the Driver Responsibility surcharge, which is the biggest reason for the decline in DWI pleas, and to ease the overwhelming burden on county courts imposed by the massive case backlog.

The bill would also have the benefit of clarifying the legality of the DIVERT program created by Harris County DA Pat Lykos, which has generated controversy in some quarters because of its essential similarity to deferred adjudication. One of Harris County's 15 judges hearing misdemeanor DWI cases, Bill Harmon, has refused to participate in the program, and this legislation would presumably eliminate his opposition.

Kudos to Rep. Todd Smith and his staff for tackling this hot-button, third-rail issue in a moderate, sensible way. With even MADD endorsing the bill, there is plenty of political cover and only knee-jerk reasons left for opposing the legislation. And during a session when counties seem certain to face additional unfunded mandates on the criminal justice front, it'd be nice to pass at least a few pieces of legislation that reduce the cost burden on county justice systems. See HB 189 bill details.

RELATED: MADD sounding quite reasonable on mandatory license suspensions.

Privatization and the fallacy of zero fiscal notes on criminal penalty enhancements

This story out of Maine included an interesting chart depicting what proportion of each state's prison population is housed in privately-run facilities:

FWIW, Texas reliance on private prisons - where the state pays contractors by the head to lock up inmates -  puts the lie to statements in "fiscal notes" from the Legislative Budget Board (LBB) that criminal penalty increases generate no significant costs. Because 11.6% of our inmates are in private facilities, we pay extra for every additional person who enters a Texas prison. Even when new prisoners go into state-owned units, beds are fungible, prisoners are frequently moved around, and system-wide the marginal extra cost of each new inmate will still equal the cost of an extra private prison bed - probably somewhere in the $15-17,000 range.

If the state owned all its own facilities, it would be arguable that the cost of adding inmates would be de minimis - as LBB maintains - because fixed costs and staffing make up most of the expense. But when the state contracts with private companies to house 11.6% of its prisoners, every extra prisoner must be paid for, even if the state budget indulges in the convenient fiction that housing more inmates is free.

RELATED: The Maine article also referenced this 2006 analysis (pdf) of the pros and cons of privatization from the Congressional Research Service which I hadn't seen before. See more coverage of private prisons from our pals at Texas Prison Bidness.

Todd Willingham documentary

The Texas Tribune has posted excerpts from an upcoming documentary on the Todd Willingham arson case, and published an interview with the filmmakers. Check it out. The Tribune's Evan Smith declares that:
the breakout performance is that of Williamson County District Attorney John Bradley, who was appointed by Rick Perry to chair the Texas Forensic Science Commission  just as the commission and its previous chair were inconveniently set to weigh in on the Willingham case during the gubernatorial campaign. Bradley is combative, bordering on hostile, from the moment he appears in Incendiary, both in his dealings with the press and with his fellow commissioners.

Monday, December 27, 2010

The rest of the story

A commenter on Grits' Christmas Day open thread left this back-handed complement:
I would like to commend Scott for his passion for justice. He has done well, some would suppose, to view one-half of the equation and champion a cause based on that half view. However, some would argue, what about the half that he either denies or fails to see?

Could I say he is right? He is half-right, but is one so ardent in his half perception really all that right? I guess it's something to contemplate as we enter a new year.
I appreciate the commenter's (perhaps reluctant) homage to the Christmas spirit of forgiveness and understanding. It's certainly true that this blog focuses almost exclusively on problems and their solutions within the criminal justice system. I admittedly don't spend much time lauding the good job being done day to day by police, courts, attorneys, judges, prison staff, probation and parole officers - the "half of the equation" to which my generous reader clearly refers. Let me be clear why that is.

There are already a large number of public relations staff employed full-time in Texas who do nothing but promote those positive, system-is-working, move-along-nothing-to-see-here messages. TDCJ and DPS each have multiple public relations staff, and every large police and sheriff's department has full-time media professionals, often former reporters, who do nothing but promote positive stories about their agencies. Police and deputies unions are locally powerful, as are District Attorneys, and their views are respectfully and regularly represented in the MSM. So that's perhaps several dozen full and part-time media folks around the state working for various state and local agencies and special interests promoting the half of the story I'm supposedly missing. Is it really so bad that one person, in his spare time, blogs about the half of the issue that official sources tend to ignore? "Half" is a lot of territory to cover!

As Reason magazine's Radley Balko is fond of pointing out, the MSM doesn't "suffer from liberal bias; they suffer from statism"; they're not pro-liberal, but pro-government (which can sometimes be mistaken, understandably, for Big Government Liberalism). The reason, though, isn't this or that reporter or publisher's personal politics or bias, it's the structure of how professional journalism is taught and practiced, as well as the context in which it is performed. Not all, but a majority of workaday news stories on most subjects arise from the following formula: Government or other official source does something or says something; reporter gets quotes from them (sometimes canned in public statements or press releases) then quickly finds someone to quote for "the other side" by deadline who a) is usually given less space and b) is commenting on a story whose focus has already been fundamentally defined by officialdom.

This formula's limitations are strongly on display with crime coverage, which often has only two possible sources - the government and the defense. Save for exceptional circumstances, the defense will avoid speaking to the media, while the DAs and police are set up to churn out press releases whenever the need arises. Coverage of criminal justice at the legislature adds additional institutional players - state agency PR staff, police chiefs and sheriffs associations, unions, single-issue groups like MADD, the occasional vendor - who mostly share an interest in the status quo. Since few besides paid lobbyists for these institutional, pro-law enforcement interests attend legislative hearings, that's who tends get quoted in the resulting news stories.

This blog was created expressly as an antidote to one-sidedness I perceived in MSM coverage on criminal justice. My view is I don't need to tell "the other side"; a small army of paid media flacks and MSM reporters already do that and I routinely link to their work. That's why many blog posts on Grits are structured by quoting an MSM story then providing additional information or a takeaway, summary sentiment: My goal isn't simply to point readers to others' reporting so much as so supplement their reporting with the part of the story that routinely, for structural reasons, gets diminished or left out.

As this blog moves into its seventh year of commentary, and as we prepare ourselves for what promises to be a rough-and-tumble legislative session, I thank Grits readers for seeking out and hopefully putting to good use the information and perspectives you find here. Unlike most TV news viewers or newspaper readers, you are not passive. Instead, you are people from a variety of backgrounds and perspectives with more than a passing interest in criminal justice who are looking for more information and/or analysis than the MSM is giving you - as Paul Harvey used to say, "the rest of the story." I hope you continue to find it on Grits for Breakfast, and continue to tell me when you don't. Until then, here's wishing everyone a happy Xmas, and hoping in the holiday spirit that we all find wisdom and grace headed into the new year.

Sunday, December 26, 2010

Mentally ill Tyler teen who murdered teacher lingering in legal limbo for incompetence

The mentally ill Tyler teen who killed his teacher at John Tyler High School remains in legal limbo, the Dallas News reports, because he's too sick to be declared competent to stand trial. The story by Lee Hancock ("Teen suspect in legal limbo more than a year after teacher's slaying," Dec. 26) opens:
In 14 months awaiting trial for killing his teacher, a 17-year-old named Byron has come to fear that someone is changing his body parts. He says the voices that told him to kill are saying that violence will heal him.

After a recent evaluation, court-appointed forensic psychologist Emily Fallis concluded that the schizophrenic teenager remains delusional and dangerous. The Fort Worth behavioral expert's report to a juvenile court, obtained by The Dallas Morning News, predicted a "low probability" that Byron could maintain the minimal level of competence required for trial.

So Byron's case remains unresolved more than a year after special education teacher Todd Henry collapsed in his Tyler classroom with a butcher knife in his chest. Byron's last name is not being used because The News does not identify juvenile offenders.

Earlier this year, The News obtained 7,000 pages of Byron's records from schools, mental health clinics and hospitals, and juvenile agencies. They detailed failure after failure in communication and care as Byron's turmoil worsened.

His case illustrates the difficulty in finding treatment and incarceration for severely mentally ill juvenile offenders in Texas, say the Smith County prosecutor and defense attorney involved in the case.
This sad case reinforces why it'd be folly for the Legislature to slash funding for mental health services. As the assistant district attorney handling the case for Smith County told the News, "If there had been proper treatment for a juvenile with these kinds of diseases, if there had been a long-term placement available for a poor kid like him, Todd Henry would still be alive."

A forensic science 'blockbuster' and the limits of accreditation

A couple of forensic science related items before I turn my attention away from the blog for the day:

NAS Forensic Science Report a 'Blockbuster'
In an interview, White House science adviser John Holdren was asked, "What single published finding or scientific paper has had the biggest impact on your office?" He gave several examples, but notably mentioned:
[Another is] the Academies' report that came out last year on forensic science that suggested much of forensic science is less solid than is assumed. We ended up spending a lot of effort, and we're still spending a lot of effort on what needs to be done to shore that up and what are the policy implications. In the meantime, we're working with the Justice Department. That [report] was quite a surprise. I'd not given a lot of thought to the scientific foundations of forensic science. But that one was a blockbuster.
"Blockbuster" is the right word for it. I'm still startled when folks in criminal justice fields who work routinely with forensic examiners aren't conversant about the NAS report on forensics or pooh-pooh its importance. Others take the NAS report as a personal affront, but at least that unnecessarily defensive reaction denotes a recognition of what a big deal it is. Like it or not, that report re-set the terms of debate over forensic errors for probably the next couple of decades, which is how long, at a minimum, I expect it will take to perform the necessary scientific research to validate or refute longstanding forensic methods from ballistics to fingerprints, many of which simply have no scientific basis.

Thoughts on Accreditation and Forensic Reports
At the Court of Criminal Appeals' Forensic Science Seminar, I attended a presentation by Ralph Keaton from ASCLD-LAB (see his power point presentation here), which is the largest accreditation agency for forensic sciences. Accreditation has come a long way; Keaton said that 25 years ago, not a single lab in the country, including the FBI's, would meet their standards today. Even so, until 10 years ago ASCLD-LAB was run out of somebody's house, and they had no staff before 1995. Today they employ 13 people to overview crime labs across the country. Their prominence has been boosted by states like Texas, which began requiring accreditation in 2003 for certain types of forensic evidence to be submitted in court. The state has accredited 90 crime labs (not all by ASCLD-LAB) to submit evidence in Texas courts; half are outside the state.

Even so, lab accreditation isn't a cure-all: Once they're accredited, ASCLD-LAB only requires renewal once every five years, when labs submit a "conformance file" for assessment, and shorter annual reports in between. What's more, the labs themselves choose what cases inspectors examine, so there's a risk they clean them up ahead of time or cherrypick examples. Keaton insisted that if that was occurring, they didn't do a good job of covering their tracks because they "always" found something.They also require proficiency testing of lab workers and do interim inspections related to allegations.

Anyway, readers will recall that it came out at that seminar that DPS did not disclose disagreements among fingerprint examiners in their final reports. I was later told that was the agency's practice not just in fingerprints but in other comparative disciplines like hair, ballistics, tool marks, etc.. Under the ACEV method (Analysis, Comparison, Evaluation and Verification), when an examiner concludes that two items match, a second examiner is brought in to verify the finding. When those examiners disagreed, the case went to a supervisor for resolution. In situations where the supervisor decided in favor of the examiner who thought a match was found, the disagreement was not being reported even to prosecutors, much less to the defense, in the crime labs' final reports.

I'd noted before that the failure to be forthcoming about in-lab disagreements among examiners violates the state's obligation under Brady v. Maryland to disclose exculpatory evidence to the defense. But looking again at my notes from the presentation on accreditation, it also strikes me that the practice probably violates the ASCLD-LAB accreditation standard passed in 2005 that requires issuance of reports for all work performed. I was recently told DPS is in the process of "fixing" that oversight - I need to check on the status of any changes in that regard - but even if they do, there are an unknown number of past cases where disagreements weren't disclosed, and every reason to believe that other, non-DPS labs across the state are doing the same thing. What should be done about that?

Unfortunately, accreditation doesn't solve the problems raised in the NAS report because labs are accredited based on compliance with existing practices that simply haven't been validated by science one way or the other. But if its strictures were meaningfully enforced, accreditation might help prevent structural errors like the failure to disclose examiner disagreements by DPS.

Michael Green, exonerated, now working to free others

Exoneree Michael Green spent 27 years in TDCJ for a rape he didn't commit and now spends his days combing through jail mail, reports AP: "Since his release in July, after new DNA tests showed he was innocent, Green has worked for his attorney as a volunteer, reading letters from inmates, looking for others who might be wrongfully imprisoned. "We might find a case where there's another me that I can help," said Green, 45." Juan Lozano has a nice feature on him.

I got to meet Mr. Green soon after his release at the Innocence Project of Texas annual meeting (Green's attorney, Bob Wicoff, is a board member of IPOT who led the review of tainted cases from the Houston crime lab), and he's an impressive figure - soft-spoken, but sharp as a tack and extraordinarily determined, from the brief interaction I've had with him. I'm going to be representing IPOT again at the Legislature next spring, so I've little doubt we'll be working together in some fashion promoting innocence reform legislation. The exonerees who came down to Austin in 2009 to promote reform legislation made a big impact on legislators and the terms of debate over reform bills just by telling their stories. It's really an honor to get to work with folks like that.

Flat-out Irresponsible: TDCJ says it's still not considering prison closures

According to the Huntsville Item, TDCJ still isn't contemplating possible prison closures in the face of a gaping budget shortfall, insisting it can lay off thousands of employees but keep all 112 of its facilities open: "At this point, TDCJ is not looking at closing prisons, Oliver Bell, chairman of the state prison board, said when the Texas Board of Criminal Justice met Dec. 9."

That's the most irresponsible thing I've ever heard. In other words, rather than close units, the agency will just leave them unguarded. The suggestion that TDCJ would fire a significant number of line staff and keep the same number of units open is fundamentally unsafe and unsound. I consider this a typical bureaucratic budget ploy, refusing to suggest realistic cuts and instead offering up only unrealistic approaches to shaving the budget that would obviously harm public safety.

What needs to be happening right now - and if the agency won't do it, the task will fall to legislative staff or the public interest lobby - is to develop unit-by-unit profiles just like was done at TYC to tell legislators exactly what each unit is costing, the pros and cons of keeping it open, and how much could be saved if it were closed. Check out the spreadsheet (xls) with that data for TYC facilities, rating facilities by staff turnover, difficulty of recruiting, cost per day, the condition of the physical plant, and a variety of other factors. Further, somebody - and it clearly won't be TDCJ - needs to be developing policy recommendations to reduce inmate numbers, just like the state did with juvenile prisons. The Texas Public Policy Foundation would be a good place for legislators to turn on that score.

I can't believe at this late date TDCJ anticipates cutting its budget by as much as is required through staff cuts alone without closing a single unit: It's just not realistic and smacks of bureaucratic gamesmanship. TDCJ has already been asked to cut $75 million, and is $61 million short on healthcare costs for a total of $136 million in red ink before the serious budget cutting even starts. I don't believe they can cut even that deeply without closing multiple units. If and when cuts go any deeper, the agency will pay a heavy price for their complete lack of leadership and planning on this topic, as decisions they refuse to contemplate get made by others in ways they won't always anticipate, much less agree with.

This malingering by agency administrators and head-in-the-sand comments from TDCJ's board chair remind me of my 4-year old granddaughter, who likes to play with her food and utensils instead of eating at the dinner table. When we take her fork from her and put food in her mouth directly, with threats of a time-out for non-compliance, she plaintively asks why we don't let her feed herself "like a big girl." We answer that if she would eat on her own, we wouldn't have to do it for her. I guaran-damn-tee a moment will come during the 82nd Texas Legislature when legislators (or their staff) will tell TDCJ chief Brad Livingston exactly that: If you'd do it yourself, we wouldn't have to do it for you. Somebody has to make the tough choices; agency staff can put off eating their vegetables, for now, but next spring legislative budget writers cannot.

Friday, December 24, 2010

Things I'd like for Christmas that may not fit in Santa's sack

As we approach the 82nd Texas Legislature, here's a list of ten criminal justice policy reforms I'd like for Christmas that may not fit in Santa's sack:
  1. Honest fiscal notes regarding the true cost of legislation increasing criminal penalties at the Texas Legislature. Relatedly, perhaps Santa could ensure that the budget shortfall will force Texas to reconsider its mass-incarceration policies of the last two decades.
  2. That the 82nd Texas Legislature will eliminate the Driver Responsibility Surcharge.
  3. Some way to hold prosecutors accountable for overt misconduct as in the Anthony Graves case.
  4. More local anti-red light camera initiatives.
  5. That the Lege will avoid cuts to mental health services that will fill up jails and prisons.
  6. More permission graffiti spots on government property in underutilized public spaces.
  7. Restoration of the law enforcement exception in the Public Information Act (Sec. 552.108 of the Government Code) back to the historic AG's interpretation prior to the 1996 SCOTX case Holmes v. Morales. That was a tremendous blow to transparency about which few people are even aware.
  8. That the powers that be will reconsider and eliminate onerous and pointless security theater at the entrances to the Texas capitol.
  9. A statewide mechanism to vet past convictions of potentially innocent people based on flawed forensics like dog-scent lineups and old arson cases.
  10. New grants from the feds or private foundations for primary research to validate and improve forensic sciences.
Merry Christmas, folks. Use the comments as an open thread to let me know what you want for Christmas, be it criminal justice policy changes or a new Xbox.

Prosecutor honored who dismissed charges against Anthony Graves

The Dallas News nominated Kelly Siegler, former Harris County DA candidate and the prosecutor who dismissed charges against Anthony Graves, as a finalist for its Texan of the Year honor. The recognition is well deserved - and may even revive her political prospects, broadening her image from that of simply disgraced DA Chuck Rosenthal's heir apparent - but among the News' Texan of the Year nominees so far, I think I might vote for these folks.

Institutional prosecutorial bias limits federal pardon recommendations from DOJ

Having been focused lately on questions of clemency, I was pleased yesterday to receive an email from Samuel Morison, who was a staff attorney for ten years at the federal Office of the Pardon Attorney and recently resigned, publicly articulating his displeasure with the process. For Morison, the problem at the federal level is institutional. In a November 6 editorial in the LA Times titled "A No-Pardon Justice Department," he argued that it's problematic for the Justice Department to control the office because of competing institutional priorities:
the problem in the vast majority of garden-variety clemency cases — those involving ordinary applicants for whom a grant of clemency would not cause any public controversy — is precisely that recent presidents have given far too much deference to the pardon attorney's office. Having spent more than 10 years as a staff attorney in that office, I can say with some authority that the prevailing view within the Justice Department is that the pardon attorney's sole institutional function is to defend the department's prosecutorial prerogatives. There is little, if any, pretense of neutrality, much less liberality. On this parochial view, the institution of a genuinely humane clemency policy would be considered an insult to the good work of line prosecutors.
As a result, there is a strong presumption within the pardon office that the number of favorable recommendations should be kept to an absolute minimum, regardless of the equitable merits of any individual petition. This stance ignores the reality of a burgeoning federal prison population of more than 200,000 inmates, many serving lengthy sentences for nonviolent drug offenses, and the proliferation of collateral disabilities that hinder ex-offenders' ability to restart their lives, which the attorney general himself has criticized as a "recipe for high recidivism."
Until his nine pardons earlier this month - the longest it's taken any Democratic president in history to issue their first acts of clemency - Barack Obama had pardoned more Thanksgiving turkeys than US citizens, so I can understand Mr. Morison's frustration.

Reading about these institutional dynamics made me consider the position of the Texas Board of Pardons and Paroles as a de facto, semi-autonomous appendage of the Department of Criminal Justice. Indeed, for years the board chair's husband ran TDCJ's institutional division which operates the state's 112 prisons (before he was tapped to be "conservator" at the Texas Youth Commission then retired - I wonder what Ed Owens is doing these days?). So I wouldn't be surprised if there were conflicting institutional interests at work behind the scenes at the BPP, though perhaps not quite as blatantly as it sounds like is happening at the US Pardon Attorney's Office. That said, Governor Perry refuses clemency in about 70% of the cases they recommended to him, so there's little reason to think the problem lies solely with Rissie Owens and the parole board. If they recommended more pardons he'd likely just deny more.

By contrast, at the federal level, according to Morison, "the bureaucratic managers of the Justice Department's clemency program continue to churn out a steady stream of almost uniformly negative advice, in a politically calculated attempt to restrain (rather than inform) the president's exercise of discretion." I can certainly see where putting an agency dominated by federal prosecutors in charge of clemency could be problematic. Morison suggests that for federal clemency to fulfill its intended constitutional function, the president must "defer less to the jaundiced advice he receives from the Justice Department and rely more on his own moral judgment."

Today Mr. Morison works as appellate counsel for the defense in military tribunal proceedings for prisoners at Gitmo. (Given that those seem to be little more than kangaroo courts, it's ironic he would leave a job over its frustrating futility then take that unhappy, thankless task). He also has an academic paper that may interest some Grits readers on Presidential Pardons and Immigration Law.

Thursday, December 23, 2010

Perry mostly ignores the advice of parole board appointees on clemency

I was briefly quoted in a Texas Tribune story by Brandi Grisssom on Gov. Rick Perry's Christmastime pardons ("Per national trend, Perry stingy with pardons," Dec. 23), which contained several other notable tidbits.

First, as Grits has reported in the past, Grissom noted that "From 2001 to 2009, the board considered more than 2,000 applications. It recommended clemency in more than 530 cases, and Perry granted about 30 percent of them." The Tribune's Matt Stiles created a helpful, searchable database of Perry's Pardons.

P.S. Ruckman who writes the blog Pardon Power got in a good one: "In Texas, the Board of Pardons and Paroles would seem to give the governor a kind of political cover, since he can’t grant a pardon without their recommendation. Ruckman says it’s baffling that Perry so often rejects the suggestions of a board whose members he appoints. This year, the board recommended 41 clemency applications to Perry, but he rejected 80 percent of them. 'You’ve got to wonder, if he appoints them … why he disagrees with them so much,' Ruckman says." Indeed. Grits has noted in the past that "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." Texas would actually have a more robust clemency program if Governor Perry followed his appointees' recommendations.

Grissom compares Perry's record to recent governors: "In his nearly six years as Texas governor, George W. Bush  granted only 21 pardons. Compared to Texas governors before them, Ruckman says, Perry and Bush have been particularly parsimonious with their pardons: Republican Gov. Bill Clements issued more than 800 pardons during his eight-year tenure, and Democratic Gov. Mark White issued nearly 500 pardons in four years." Grissom didn't mention how many pardons Ann Richards gave during her single term, but this source says the number was 70.

The article closes with these sentiments from former Clinton pardon attorney Margaret Colgate Love:
Of course, pardons aren’t just for people who want out of prison. Many times those who request pardons have already served their time and paid their fines and are simply fed up with not being able to find jobs, buy guns for hunting or vote because of their criminal records. In Texas, there are some 1,400 legal barriers for convicted felons, says Margaret Love, a clemency attorney and former U.S. pardons attorney during the Clinton administration. A full pardon wipes those away and gives the offenders better access to jobs, homes and a normal life, which also means they will be less likely to get into trouble with the law again. “The function of the pardon is precisely to say, ‘Hey, it’s okay now,’” she says.

Love says that if Perry is worried about political fallout, he would do better to rely more on the board’s pardon recommendations instead of picking through them himself. “He would be able to use his power more generously," she says, "and there is certainly a need.”
See related Grits posts:

Wednesday, December 22, 2010

Innocence is fine, but what happened to remedies for 'unfortunate guilt'?

I've been focused elsewhere today but here are several items that each might deserve its own, separate post if I had time:

Did faulty medical evidence help secure molestation convictions?
The SA Express-News has posted online their story of the possible wrongful conviction of four women accused of child molestation in the '90s. The "San Antonio Express-News investigation — including interviews with witnesses and experts and a review of police reports, medical studies and thousands of pages of trial transcripts and other court documents — raises troubling questions about the scientific legitimacy of medical evidence deployed against the women, whether authorities checked a previous rape allegation made by the girls and whether anti-gay views prejudiced Ramirez's jury."

Inquire no more
The Third Court of Appeals shut down the Todd Willingham court of inquiry, declaring Judge Charlie Baird abused his discretion. See their ruling. Also, after looking at the related caselaw, Mark Bennett didn't think much of the decision by the Court of Criminal Appeals to shut down an inquiry in Houston into the constitutionality of the death penalty. A group of prominent, unlikely allies filed a brief on Wednesday urging the CCA to let the hearing continue. Perhaps if nobody inquires, all these questions will just go away? Or maybe not.
Reasonable suspicion is in the eye of the beholder
Check out a discussion at Liberty and Justice for Y'all of the devolving state of reasonable suspicion at DWI stops, commenting on the Court of Criminal Appeals decision to overturn an intermediate court ruling to allow a stop based on "flimsy" cause. And speaking of DWI enforcement, Paul Kennedy has interesting posts up here and here about increasingly popular no-refusal policies, and reports a rumor that state Sen. Dan Patrick wants to eliminate Administrative License Revocation hearings in a way that would conflate criminal and administrative governmental roles.

A matter of time
I noticed this preliminary story about new inmate litigation over inadequate healthcare at a TDCJ facility. Given Texas' chronic underfunding of inmate healthcare, if what's happening in California is any indication, it's only a matter of time before these suits begin to succeed if the state doesn't sufficiently invest in healthcare for inmates or else reduce their overall number.

Tipping point or temporary plateau?
The overall number of people in the United States under control of the criminal justice system - in prison, jail, on probation, or on parole - declined last year for the first time since such data began being gathered in 1980 according to a new report (pdf) from the Bureau of Justice Statistics.

Reading corner
I was just sent a review copy of Rev. Alan Bean's new book "Taking out the trash in Tulia, Texas," which tells the story of the infamous Tulia drug stings from one of the front-line warriors fighting to free those wrongly convicted. Also, I saw an interesting looking book on the shelf while I was Christmas shopping and then noticed a review of "The Killer of Little Shepherds: A true crime story and the birth of forensic science."

Restorative justice and shame
At Women in Crime Ink Vickie Pynchon writes that "The concept of reintegrative shaming was first introduced by restorative justice theoretician John Braithwaite  as a means of 
distinguishing between shame that stigmatizes criminal offenders (and thus increases crime) from shame that condemns wrongdoing but forgives and respects the offender, hopefully reducing recidivism and decreasing crime."

NYC: Send 'em back
In New York, NYC Mayor Michael Bloomberg is asking state government to do something that may be foisted onto Texas counties against their will: Get rid of youth prisons and let New York City handle its own criminal youth.

A remedy for 'unfortunate guilt'
Here's an excellent quote from Alexander Hamilton on the need for a robust clemency policy, writing as Publius in Federalist Paper No. 74: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." Notice the author was not only concerned with pardons for innocence, but also for "unfortunate guilt." Today, of course, executive pardon power is extraordinarily "fettered" and quite frequently "embarrassed" (think Mike Huckabee), disregarding Hamilton's sage and prescient advice.

Tuesday, December 21, 2010

Christmastime clemency is a joke, but pardons could be meaningful remedy for 'government overreach'

Governor Rick Perry's office announced its annual Christmas pardons yesterday, granting eight pardons for extremely petty, mostly long-ago offenses.

I've come to be incredibly frustrated with this Christmastime pardon ritual, for reasons ably articulated in a recent blog post by P.S. Ruckman: "Christmastime pardons send a very wrongheaded - if not outright dangerous - signal to the American people that pardons are something like Christmas gifts, passed out during the holiday season, to those who actually may, or may not deserve them. Which is to say, it is no wonder the DOJ and OPA are so shy about pardons. The very timing of them implies their work re the assessment of pardon applications is a joke."

Indeed, it's hard to not consider these pardons a "joke" when you look at the details. E.g., a 73-year old man was granted clemency for a theft conviction from 1955. If the governor had waited any longer he might have had to issue his second ever posthumous pardon. Another pardon recipient spent three days in jail 31 years ago for unlawfully carrying a handgun. If it's true that justice delayed is justice denied, these latter-day pardons hardly constitute justice.

And why pardon one individual who "was convicted of possession of marihuana in 1971 at the age of 21"? What does it really matter if someone is pardoned who received a probated sentence 40 years ago? There are hundreds of thousands of others in the exact same position, after all, who will never benefit from such gubernatorial largesse.

In 2009, 57.9% of all drug arrests in Texas were for marijuana - a total of 69,956 adults. Similar numbers are arrested for marijuana possession annually, and there's no reason to believe this one individual is any more deserving than others who've been arrested for that offense. Issuing a pardon on a 40 year old pot charge is insulting not just to the person pardoned but to the hundreds of thousands of other people similarly positioned who did not receive clemency. If the Governor is going to issue pardons for such petty offenses, the only fair thing to do would be to pardon entire classes of offenders - for example, pot offenders with no other convictions on their record.

In his recent essay, "The Conservative Case for the Pardon Power," Ruckman suggested just such a systematic use of pardons as a remedy to governmental overreach in the War on Drugs: "It is the president [ed. note: and governors] who should now consider the careful, systematic use of the pardon power (or, more specifically, commutations of sentence) in individual cases - at a minimum - for first time, non-violent offenders who have already served considerable sentences and show evidence of rehabilitation (just as an example). In addition to approximating fairness, such use of the pardon power could save tax payers millions of dollars." Citing such class-wide applications of pardon power in the past, Ruckman observes that, "It is quite obvious that, if Conservative presidents (and governors) ever decide to get serious about addressing the problems associated with government overreach, the pardon power is there, waiting."

I'm not holding my breath for Governor Perry to begin to make clemency a more meaningful remedy for "government overreach," but there's a strong case to be made that he can and should treat the pardon power as more than just a token Christmastime genuflection to values of mercy and forgiveness, which are then ignored in practice throughout the rest of the year.

RELATED: How the Grinch stole clemency: Christmastime pardons trivialize process

UPDATE: Via Pardon Power, I noticed this story about clemency policy in Georgia,  where their Board of Pardons and Paroles "issued 561 pardons in fiscal 2010 that ended June 30," which is more than three times the number Rick Perry has given out during his entire tenure. Thirty eight percent of requested pardons are granted in Georgia. "Margaret Colgate Love, a former pardons official at the U.S. Justice Department and author of a book on state pardons, said Georgia is near the top of a group of 17 states that grant a substantial number of pardons each year. Most states seldom grant them, she said" to the Atlanta Constitution-Journal.

MORE: From CNN, see commentary from Kemba Smith Pradia, who argues that "Obama should commute the sentences of many people serving egregiously long sentences for crack cocaine offenses."