Wednesday, August 31, 2011

Texas: Awash with limited government, and hundreds of new laws

Just received this press release from Tom Vinger at the Texas Department of Public Safety:
Below is a list of selected changes to traffic and criminal statutes. Unless otherwise listed, all laws below take effect September 1, 2 011. Please note that this is not a comprehensive list of all new laws passed by the Texas Legislature.

Criminal Laws
·        Certain synthetic compounds deceptively labeled as “bath salts” and synthetic marijuana products (K2 or spice) have been added to Penalty Group 2 of the Texas Controlled Substances Act. (HB 2118, SB 331)  Bath salts contain dangerous stimulants, and K2 mimics the effects of marijuana. Both have been sold in convenience stores and head shops, and have side effects that can be harmful and long-lasting.
·        The electronic transmission or possession of visual material depicting a minor engaging in sexual conduct (“sexting”) has been added as an offense in the Penal Code. The penalty can range from a Class C misdemeanor to Class A misdemeanor, dependi ng on the circumstances. This does not apply to minors involved in a dating relationship or spouses. (SB 407)
·        The possession or use of tire deflation devices, commonly known as caltrops, for any purpose other than law enforcement use or as an antique or curio is prohibited. Criminal organizations have increasingly used caltrops as they attempt to evade apprehension, resulting in damage to patrol vehicles and innocent vehicles on the road. (SB 1416)

Traffic Laws
·        Tow trucks have now been added to the slow down or move over laws, which require drivers to slow down 20 miles per hour below the speed limit, or to vacate the lane closest to the stopped emergency vehicle that has emergency lights activated if the road has multiple lanes traveling in the same direc t ion. (HB 378)
·        Speed limits will now be the same during night and day driving, and separate speed limits for trucks have been eliminated. The maximum speed limit on state highways may be raised to 75 miles per hour if approved after a finding by TxDOT that the increased speed would be reasonable and safe following an engineering and traffic investigation. (HB 1353)
·        A driver may not allow a child under 18 to ride in a watercraft while it is being towed on a street or highway.  This does not include watercraft being towed on a beach or in a parade. (HB 2981)

Driver License
·        Hardship driver licenses will be suspended if the holder is convicted of two or more moving violations during a 12-month period. DPS may no longer waive the driver education requirement to issue a 60-day hardship license. (HB 90)
·        Drivers subject to the Driver Responsibility Program will be able to pay the entire three-year amount of surcharges owed for a violation in advance, rather than paying across all three years. (HB 588)
·        Veterans will be exempt from the fee for a personal identification certificate if they can show honorable discharge and at least 60 percent service-related disability. Disabled veterans are exempted from driver license fees under current law. (HB 1148)
·        A veteran design ation will be displayed on a driver license for applicants who provide proof of military service and honorable discharge. (HB 1514)
·        The Sunset Commission has been charged with reviewing the current oversight structure of driver education and driver safety schools, which are currently overseen by the Texas Education Agency, and determine if another state agency should have oversight. Providers of driver education courses, including DPS for the purposes of parent taught driver education, will be able to provide certificates of completion directly to those who have completed driver education courses. (HB 2678)
·        DPS will establish a deferral program for surcharges assessed under the Driver Responsibility Program to military personnel actively deployed outside the U.S. for the duration of the individual’s deployment. (HB 2851)
·        Voters will be required to present a driver license, personal identification certificate, military identification, election identification certificate, United States citizenship certificate passport, or concealed handgun license to participate in an election. DPS must create an election identification certificate to be issued by DPS for registered voters who do not have any of the other acceptable forms of photo identification. The election identification certificate will be distinguishable from a driver license or personal identification certificate, and will be issued free of charge to persons only if they do not hold any other acceptable form of identification, as listed in Election Code 63.0101. These forms of identification include a driver license, personal identification certificate, military identification, a United States citizenship certificate, passport, or concealed handgun license.  (SB 14)
·        A four-hour driving safety course was approved for drivers under 25 years old. Drivers under 25 who are cited for a moving violation may be required to take this course. (SB 1330)
·        Applicants for a driver license or identification certificate must provide proof that the applicant is lawfully present in the United States. Applicants who are not U.S. citizens, legal permanent residents, or admitted to the U.S. as refugees or asylees are considered temporary visitors. Driver license and identification certificates issued to temporary visitors expire concurrent with the end of the applicant’s lawful presence, or after one year if the legal stay is indefinite. Driver license and identification certificates issued to temporary visitors are to be i n the same format and contain the same information as those issued to U.S. citizens and legal permanent residents. (SB 1, 82 nd 1 st Called Session, effective September 28, 2011)

·        A person may carry a handgun, knife, or club in a watercraft under the person’s ownership or control. The handgun, knife, or club may not be in plain view, used while engaging in criminal activity, or carried by a member of a criminal street gang. (HB 25)
·        Employers may not prohibit employees with a concealed handgun license from having firearms or ammunition in their personal cars in the employer ’ s parking lot. This does not apply to employees of public, private or charter schools, or employees of chemical manufacturers or oil and gas refiners. (SB 321)

Crime Labs
·        Crime laboratories are required to preserve biological evidence used in the investigation or prosecution of a felony for at least 40 years, or until the applicable statute of limitations has expired if there is an un-apprehended actor associated with the offense. (SB 1616, effective June 17, 2011)
·        Law enforcement agencies are required to submit DNA evidence in active sexual assault cases to an accredited laboratory within 30 days of receipt. Once the evidence has been analyzed, the DNA must be compared by DPS to state and federal DNA databases. The bill requires law enforcement agencies to submit unanalyzed DNA evidence collected after September 1, 1996, to DPS for analysis. (SB 1636)

·        A new category of missing person alerts may now be issued for missing persons with intellectual disabilities. Activation of this alert includes a requirement of documentation of a qualifying intellectual disability. (HB 1075)
·        DPS must create a pass for expedited access to the state Capitol building. To be eligible, an applicant must meet the criteria to apply for a concealed handgun license, with the exception of handgun proficiency requirements. (HB 2131, effective May 30, 2011)
·        The Texas Fusion Center Policy Council was created to assist DPS in monitoring fusion center activities in Texas. The council is required to establish a privacy advisory group, recommend best practices for fusion centers in Texas and annually submit a report to the Governor and the Legislature regarding the council's progress. (HB 3324, effective June 17, 2011)
In a press release, state Sen. Rodney Ellis mentioned several additional bills of note, including:
  • HB 215, which will enact a pivotal eyewitness identification reform recommended by the Tim Cole Advisory Panel to help reduce wrongful convictions.  The bill requires all Texas law enforcement agencies in the state to adopt written eyewitness identification policies based on proven best practices by September 1, 2012; 
  • SB 122, legislation I authored to strengthen Texas' post-conviction DNA testing law, another important reform recommended by the Tim Cole Advisory Panel.  SB 122 will ensure that if there is DNA evidence available to prove someone's innocence, it can and will be tested.  No longer will the door to justice be shut just because of a procedural error;
  • HB 417, legislation enacting comprehensive exoneree compensation reforms, including health care to the wrongfully convicted, standards for attorney's fees in compensation claims, and removing bureaucratic hurdles in order for exonerees to receive the compensation they deserve. It gives exonerees access to health insurance through the Texas Department of Criminal Justice.  It also modifies the current compensation statute so that individuals like Anthony Graves, who was recently denied compensation due to a technical error in his dismissal order, can get compensation in the future.
RELATED: All told, the legislative website lists 673 bills which take effect tomorrow. From the Austin Statesman, "DPS to streamline driver's licensing with megacenters"; from the Texas Tribune, "During a legislative session where hardly any services were spared the budget ax, funding for border security actually increased"; from KXAN-TV, "Hundreds of new laws taking effect Thursday"; from the Huntsville Item, "New law increases speed limit to 75 mph"; from the Wall Street Journal, "Federal judge blocks new Texas abortion law"; and from CultureMap Houston, "Ten new Texas laws you need to know."

Let me know if your favorite new law didn't make the list.

Prisoner made furniture as campaign swag?

Somehow I'd missed the report from Patti Hart that State Rep. Debbie Riddle used prisoner-made furniture as campaign swag in a recent fundraiser. Reported Hart in the Houston Chronicle August 22
In her invitation, Riddle includes several "participation" levels: $1,000, $3,000, $5,000, $10,000, $15,000 and $20,000.
Each level of payment is awarded a corresponding gift, including the Capitol furniture produced by Texas prisoners. A color brochure with photographs of each gift was thoughtfully folded into the "Leadership Summit" invitation.

"Please note the donor gift items are exclusive and cannot be purchased on the open market," Riddle advises.

"The descriptions seem inadequate for most of these items, and you will find an enclosure with photographs to show their beauty."

Besides the desks and chairs from the House chamber, the brochure offers a hand-tooled leather duffle bag, a hand-tooled leather-top coffee table and matching chair set, a Lone Star flag cutting board, a hand-carved Capitol bench and a hand-tooled leather rifle case. Oh, and a really special carved rocking horse with a hand-tooled saddle. (That'll run you three grand.) Riddle isn't exaggerating; they're all stunning.

[Hart] called Riddle to ask if she thought her party swag might be considered just a little over the top, especially since she is allowed to purchase the items by virtue of her elected office. Isn't that a tiny bit like using your office to raise campaign funds?

"It's no different than 'if you donate this or donate that you get a T-shirt and a coffee mug,' " she told me. "We can purchase these items from the prison system as gifts. We can buy them, but we cannot sell them. I am not selling these any more than I am selling a T-shirt (given to a donor.)"
Remarkable. Asked about his view of the practice, House Administration Committee Chair said understatedly, "I've never heard of that before. I wouldn't do it." Election law attorney Buck Wood couldn't name a specific statute the practice violates, but said that generally, "You can't use the prison system as a manufacturer to attract campaign dollars." Or maybe it's just hat nobody ever thought to do so before, at least quite so explicitly. Concluded Hart:
Riddle told me she could have had the items made elsewhere, but "this is my way of helping those guys behind bars earn some money. There are some really fine craftsmen that have made bad decisions."

Too bad that Texas legislators have exclusive access to these "really fine craftsmen." That Lone Star flag cutting board really caught my eye.
It's true the prisoner-made furniture you see everywhere at the capitol is first-rate work, but you shouldn't have to donate to Debbie Riddle's campaign to purchase it independently. If this isn't already illegal, or potentially even if it is, I'd expect using prisoner-made furniture as campaign swag to be among the raft of new crimes created by the Texas Lege in 2013.

Recommendations to improve police oversight in San Antonio

The Texas Civil Rights Project has issued a new report (pdf) analyzing sustained police misconduct complaints at the San Antonio PD. According to the accompanying press release:
The Texas Civil Rights Project joined with a number of San Antonio community leaders to release its 12th Human Rights Report, “Police Misconduct In San Antonio: The Need For More Accountability, Transparency, And Responsiveness.”

A string of incidents in the past few years has revealed a troubling pattern of misconduct by San Antonio police officers, ranging from illegal searches and sexual misconduct to unresponsiveness and indifference to victims. The thread connecting these incidents is the fact that better supervision, accountability, and transparency by SAPD could have prevented them. TCRP documented many of these events, discovered from accounts by community members, SAPD records, media reports, and its own intake process.

“All the information leads to one, double-edged conclusion: SAPD’s response to incidents of police misconduct is often too late; the misconduct might have been prevented, had SAPD acted ahead of time,” said Jim Harrington, TCRP Director. “Police supervisors take action only after an officer does something awful, when it’s already too late to work with that officer to nip future problems in the bud. SAPD has commissioned independent auditors in the past to study these issues. Some changes are beginning to take hold, though many reforms have not yet been considered, fallen by the wayside, or have yet to be implemented. The long and short of it is that police supervisors, up and down the line, have to be held responsible for the misdeeds of the officers under them.”

“We discovered a departmental culture in SAPD, especially Internal Affairs, that protects its own and resists any real supervision,” said Nicholas Jackson, a TCRP attorney, who helped prepare the report over the last year. “Citizens report a variety of problems with the police, often when they are the victims and especially when they attempt to lodge complaints against officers. But SAPD Internal Affairs creates a hostile environment for people who try to report possible police misconduct. SAPD also suffers from a serious lack of transparency that impedes public scrutiny, and many roadblocks protect officers against the possibility of serious repercussions for most of their actions.”

SAPD’s current police chief, William McManus, has made some efforts to move the department in the right direction by listening to citizens’ concerns. In order to encourage continued improvement on this front, this report provides forty-one (41) specific recommendations that address institutional problems in SAPD’s culture, training, and policies. The recommended changes focus on the following areas:

* Making investigation of citizen complaints more independent, transparent, meaningful, and less intimidating
* Training officers how to be allies to victims and people suffering discrimination in order for police to be more effective
* Holding police supervisors at all levels actually accountable when they fail to properly supervise and discipline police officers who commit misconduct
* Improve technical and supervisory systems for monitoring line officers’ day-to-day conduct to make sure they follow the rules and their training

The complete report, along with additional reference materials, is available on TCRP’s website, at

Don't dare him: 'Is Rick Perry Ready to Execute an Innocent Man?'

In the Nation, Jordan Smith (who usually writes for the Austin Chronicle) has an article on the Larry Swearingen case asking "Is Rick Perry Ready to Execute an Innocent Man?" I think the short answer is, "Of course!" And for heaven's sake, don't dare him! (The Court of Criminal Appeals stayed Swearigen's execution in July, it should be said, so there's a chance the case may never reach the Governor's desk.)

Indeed, if Swearingen is executed on Perry's watch, there's no reason to think it would even hurt him politically. Most people who believe the state has already executed an innocent person still support the death penalty. Perry can say he trusts the prosecutor and jury to get it right, and especially in the GOP primary that's enough to give him a free pass. Politico reported recently that "Multiple former [Kay Bailey] Hutchison advisers recalled asking a focus group about the charge that Perry may have presided over the execution of an innocent man — Cameron Todd Willingham — and got this response from a primary voter: 'It takes balls to execute an innocent man.'”

But even in the general, being associated with aggressive use of the death penalty is a stance that attracts independents and is a factor that may offset other positions ("Social Security is a ponzi scheme") that are considered general election liabilities. This is an example of why Perry has a reputation as "teflon": He carefully chooses the terrain on which he engages his critics, and more often than not they oblige by fighting on his turf. Attacking Perry as overzealous on the death penalty plays into the governor's strengths, associating him with an issue that crosses party lines and helps woo swing voters.

The Obama Administration kills people with predator drones without trials so it's not like there's any real difference between the candidates on the subject of "state murder," in the abolitionist lingo. But from the perspective of political strategy, attacking Perry on the death penalty, even on innocence grounds, is a counterproductive task: Even if you could prove to a certainty an innocent man was killed on Perry's watch, most Americans and certainly most GOP primary voters would still agree with his rhetoric favoring aggressive use of the death penalty.

Did exculpatory evidence withheld in Morton case amount to 'fraud' by Willamson County prosecutors?

The lede to the latest Austin Statesman story on the Michael Morton case in Williamson County is both brutal and startling:
A mystery file, unsealed after 24 years in storage at an Austin courthouse, indicates that prosecutors or investigators perpetrated a fraud to secure the murder conviction and life sentence for Michael Morton in 1987, the Innocence Project of New York alleged in a court filing Tuesday.

The file, sealed under a 1987 court order amid Morton's appeals, was ordered open last week as part of the Innocence Project's claim that recent DNA tests prove Morton did not kill is wife, Christine.

The file was supposed to contain all materials produced by Williamson County sheriff's Sgt. Don Wood, now retired, as the lead investigator into Christine Morton's murder, the Innocence Project said.

Instead, the file contained only Wood's five-page report detailing the investigation's first day and a one-page consent form, signed by Michael Morton, allowing his house and pickup to be searched.

The skimpy file raised the "specter of official misconduct," the Innocence Project alleged in court papers, because it did not include recently revealed evidence that could have raised questions about Morton's guilt, including the transcript of a taped conversation between Wood and Christine Morton's mother 11 days after the murder. According to the typed transcript, the Mortons' 3-year-old son indicated that he had witnessed the killing and said his father, Michael Morton, was not home at the time.

"If trial prosecutors had the transcript in their 1987 file and willfully concealed it from this court and/or the Court of Appeals, then they have committed fraud on the court of the highest order — and in the process, condemned an innocent man to prison for a quarter-century," the Innocence Project motion reads.
At some point, given the results of recent DNA testing in the case, you have to wonder why Williamson County DA John Bradley would continue to defend such prosecutorial antics, since they all happened on a predecessor's watch. The Williamson County Democratic Party thinks the reason is that "the prosecutor in this case was now-Williamson County District Court Judge Ken Anderson," the blog Eye on Williamson County points out. That could indeed explain it. The blog Wilco Watchdog has been all over the story, for those interested in more details.

Tuesday, August 30, 2011

Class action certified in Tenaha asset forfeiture cases

Extraordinary! A federal judge has certified a class action suit against officials in the East Texas town of Tenaha who allegedly scammed motorists using asset forfeiture laws. Reports KTRE out of Lufkin:
United States District Judge T. John Ward filed his decision on Monday to certify a lawsuit alleging an illegal interdiction program by various Tenaha and Shelby County officials as class action. It wasn't long afterwards that plaintiff's attorney Tim Garrigan got requests for interviews.

Texas Lawyer reporters, local media and even national news outlets, including CNN and the Wall Street Journal, have been following the case over the years. The decision is significant in the legal efforts to stop illegal search and seizures and questionable 'interdiction' programs.

In the 58 page class action certification decision Garrigan said the circumstances are what stood out.
"It (the ruling) pretty strongly suggested that their (officials) interest was taking the money," said Garrigan.

A former constable testified as many as 1,000 people were stopped for traffic violations to look for narcotics trafficking. Most were minorities.

The only trouble is, "the police would say that their dog alerted on drugs and that they could smell marijuana, but they never found it," said Garrigan.

Nevertheless, when money was found it was often kept by officials. In exchange, the driver was free to go.

"There was never any real intention to prosecute anybody criminally," claims Garrigan.
KTRE put the judge's full order online here.

Why don't Fourth Amendment standards apply to CPS in Great Eldorado Polygamist Roundup?

Photo: Scott Sommerdorf, The Salt Lake Tribune
With its decision last week to approve the admission of evidence from the Great Eldorado Polygamist Roundup in criminal court, the Texas Third Court of Appeals basically said that law enforcement didn't need to justify its initial search warrant because the Department of Family Protective Services went separately onto the YFZ Ranch to round up all the juveniles and haul them away in buses for interrogation about possible abuse, garnering information that independently justified the second of two controversial warrants. In other words, they're claiming law enforcement can get around the Fourth Amendment if they use child protective services as a stalking horse.

A friend of the blog who's a family lawyer, however, as well as an ad litem for one of the FLDS children's cases, can't understand why the court didn't then go into the applicable law on whether DFPS had any right to be there, a subject on which a 2008 Fifth Circuit case decided months after the raid, Gates v. Texas DFPS (pdf), should be controlling. According to that case, "it is well established in this circuit that the Fourth Amendment regulates social workers’ civil investigations," and "Therefore, we will apply the typical Fourth Amendment standards in assessing the defendants’ conduct." So the same standard applies unless there are "exigent circumstances," defined in Gates as meaning, "based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if he remains in his home." (The agency issued new policies in the wake of the Gates ruling reflecting that language.)

Was the standard for exigent circumstances met? The same Third Court of Appeals already ruled it wasn't - even by more lax, pre-Gates standards - and that Judge Barbara Walther, the same judge who issued the search warrants in question, abused her discretion in approving DFPS' seizure of FLDS kids. The same standards apply for searches as seizures, which is why Grits had earlier posed the question, "If CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?"

The Third Court of Appeals ruled such evidence could come in, but only by creating a sort of phony Chinese Wall to analyze the criminal search warrants separately, ignoring their earlier decision on the civil side that the judge had abused her discretion. I'm not an attorney, but given the reasoning in its own mandamus order (pdf), as applied via the Gates opinion, I fail to understand how, if there was no exigent circumstance to justify warrantless seizure of the children, information thus obtained in violation of the Fourth Amendment could then be used to facilitate the April 6 warrant? The latest Third Court opinion addresses that conundrum by simply ignoring it.

Reading the governing Fifth Circuit opinion makes me think it even more likely that, unless the Court of Criminal Appeals surprises me and favors litigants with a Gates-compliant ruling, the issues surrounding the YFZ Ranch search warrants may be ultimately decided in federal court. Gates reminds us that "Regardless of what Texas law may authorize, entry into a house by the [state] must satisfy Fourth Amendment standards." And case law, said the Fifth Circuit, "does not support lowering the Fourth Amendment standard for entering houses for the purpose of interviewing children about possible abuse."

Monday, August 29, 2011

3rd Court of Appeals ignores own, prior ruling to approve Great Eldorado Polygamist Roundup

As foreshadowed in this Grits post, the Third Court of Appeals okayed the search warrant that spawned a series of bigamy, statutory rape and child molestation charges after the Great Eldorado Polygamist Roundup back in 2008. But remarkably, their opinion did so without addressing at all what this blog and many other legal observers considered the core issue in the case: A sweeping search warrant that allowed law enforcement to search multiple individual family households without any particularized suspicion.

The ruling strikes me as extraordinary because the same Third Court already ruled that Judge Barbara Walther abused her discretion on the civil side by authorizing a search of the entire community instead of specific, particularly identified residences. The entire ranch could not be considered a single household, the Third Court found, just like an apartment complex with a single property owner doesn't eliminate Fourth Amendment rights of individual apartment dwellers. Footnote 10 to the court's mandamus order specifically declared that:
The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 [of the family code] and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a "household."
That's why Grits had written back in May, "It's difficult for me to imagine how the court could decide the search warrant is valid without contradicting its own ruling on the civil side, particularly regarding the 'particularity' requirement in the Fourth Amendment. In a mandamus order (pdf) requiring CPS to return YFZ children to their parents, the Third Court ruled (and the Texas Supreme Court later agreed) that the entire ranch couldn't be considered a single 'household.'"

So how did the Third Court get around this seeming contradiction? The answer to me is downright bizarre: They simply ignored the argument. It was just not addressed. To call it an elephant in the room doesn't do it justice. The opinion declares that, "Although the State does not question appellant's showing of standing to contest the validity of the searches conducted pursuant to the April 3 and 6 warrants, the State contends that appellant failed to establish his standing to challenge the interviews conducted by the DFPS caseworkers acting pursuant to the order in aid of investigation." And with that little trick, they banished the sweeping nature of the YFZ Ranch warrants completely under the rug.

IANAL, but I see one big problem with that: The DFPS caseworkers weren't there in a vacuum. They came in droves as soon as the cops executed the warrant as part of a single, grand police action coordinated across multiple agencies, including DFPS. To claim they were there independently of the police search-and-seizure of the property is akin to the naked emperor's courtiers loudly admiring his wardrobe. DFPS is the fig leaf with which the court attempts to screen from view the state's small and shriveled excuse for ignoring the particularity requirement in the Fourth Amendment, but a fig leaf is all it is, and one fluttering in the breeze, at that.

Even if we accept this unlikely, concocted legal fiction, as hard as it may be to swallow, the opinion simply does not ever address head on the same court's earlier finding that "the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a 'household.'" The 3rd Court of Appeals didn't change its mind, then, so much as ignore their previous ruling in a bow to political expediency. For that reason, Grits considers this not just a bad but a shameful opinion (authored, for the record, by Chief Justice Woodfin Jones and signed by Justices Henson (no relation) and Goodwin.

Regular readers will recall that at oral arguments the state claimed they needed just one warrant to search every home and building on the 1,600+ acre ranch because there was a single corporate property owner and only one name on the utility bill. The logical extension of that line of reasoning would be that a particularized search warrant is unnecessary for people living in all-bills-paid apartments, for example, and that an alleged crime by one apartment-dweller would give police the right to enter and search every apartment in the complex. Clearly that would be absurd, but that's precisely what the Third Court has allowed here. This sets an unbelievably terrible precedent, demonstrating once again how unusual circumstances so often make for bad law.

I can't improve on Grits earlier assessment: "As far as I'm concerned, Judge Walther not only abused her discretion, as the Third Court has already ruled on the civil side, but that abuse began with the issuance of what amounted to a colonial-style 'writ of assistance' of a type not seen in America arguably since the 1760s." Not to get hokey about it, but in a real sense allowing these warrants to stand is an affront to the core values this nation was founded upon. According to this source, "On the night before the Declaration of Independence was published, John Adams  cited the 'argument concerning the Writs of Assistance … as the commencement of the controversy between Great Britain and America.'" (As a curious aside, though, with few exceptions our modern Tea Partiers have so far seemed immune to Fourth Amendment concerns, for reasons that remain mysterious to me.)

The question now becomes: Will the Texas Court of Criminal Appeals be as firm in upholding the particularity requirement to the Fourth Amendment as was the Texas Supreme Court? The latter justices agreed with the Third Court's earlier ruling that the whole ranch couldn't be considered a "household." But the CCA, as regular readers know, is led by a self-described "pro-prosecution" presiding judge (Sharon Keller) who is more or less the quarterback of a faction that habitually sides with government in nearly every case. God knows whether they can muster five votes to overturn the Third Court's ruling; I certainly wouldn't put the odds above 50%. Indeed, it wouldn't surprise me if this case ended up on the US Supreme Court's docket somewhere down the line.

Either way, if this search warrant is allowed to stand it sets a terrible precedent - not just because it may set the stage for future, over-broad search warrants (the unusual circumstances could give future judges an excuse to view the ruling as a one-off), but because Third Court justices so brazenly allowed the ends to justify the means, perhaps fearing a backlash from West Texas voters (for whom the FLDS polygamist sect are much-hated pariah) in future elections. I haven't been as disappointed in a group of Texas judges in a long time, and that's saying something.


Budget crises create problems, opportunities for counties on juvenile justice

A couple of juvie justice stories related to county budgets caught my eye recently that may interest Grits readers. First, Taylor County (Abilene) is experiencing 50+% turnover in juvenile detention staff, apparently because of low pay, according to the Abilene Reporter-News:
To Deputy Chief Larry Jones, the news that Taylor County trails in its pay for juvenile probation and detention personnel isn't shocking.
"We hire a lot of people — we have over 50 percent turnover in detention officers," said Jones, who now oversees fiscal services. "Part of what's reflected, I believe, is due to some lower salaries."
An analysis of salary data by the Reporter-News found that Taylor County paid its juvenile detention staff the least out of a comparison that included Midland, Wichita and Tom Green counties, while payment for juvenile probation personnel was last.

That's a problem, Jones said, because the county wants the best possible personnel to work with such children, who are often "abused, neglected and thrown away."
Meanwhile, Calhoun County is closing a "boot camp" for juveniles because of a budget shortfall, reports the Victoria Advocate, but in this case that may be a good thing. Juvie boot camps were a fad in the '90s, but with the rise of evidence-based practices in juvenile justice settings, they've consistently been categorized among approaches that don't actually achieve measurable, positive results (pdf) and in many cases have resulted in physical abuse and even death (pdf). Budget cuts aren't always a bad thing because they force government to set priorities and make hard choices that wouldn't be politically palatable in economic good times. The opportunity to eliminate programming that may sound good to the tuff-on-crime crowd but fails to achieve promised results is a silver lining to the dark budget cloud hanging over Texas counties.

Judge orders state hospital to take more competency restoration patients

This blog has long criticized the state's de facto use of county jails as mental health wards, and particularly Texas' failure to provide timely "competency restoration" services when a defendant is deemed incompetent to stand trial. In many cases, particularly for misdemeanants, defendants in the past have ended up incarcerated longer waiting for a spot in a state hospital than they would if they'd been allowed to plead guilty and served their full sentence. The problem reached a boiling point in Travis County last week, reports the Austin Statesman's Chuck Lindell in today's Austin Statesman ("Judge: Mentally ill patients wait too long for treatment"). The story opens:
An Austin judge ordered five Travis County prisoners into treatment at the Austin State Hospital last Tuesday an act of frustration that, if repeated, could provoke a confrontation over the state's underfunded and strained mental health system.

The three men and two women had been ruled incompetent to stand trial because mental health problems left them unable to understand the legal issues involved or assist in their defense.

Charged only with misdemeanors related to family violence or trespassing, the five had been waiting up to 71 days for a bed to open at the Austin State Hospital, where they would receive treatment — typically drugs and therapy — designed to restore mental competence so a trial could be held.

County Court-at-Law Judge Nancy Hohengarten worried that the long wait could jeopardize the prisoners' due process rights, the constitutional guarantee of fair treatment in the justice system.

So she ordered them to be immediately taken to the Austin State Hospital, and within 24 hours, all were admitted.

Problem solved?

No. The hospital, which serves 38 counties, still had 34 felony and misdemeanor defendants on a waiting list for competency treatment as of Friday, including 21 from Travis County, the state health department said.

Another 21 prisoners who have been ruled mentally incompetent were awaiting beds in other state-run facilities that offer specialized care, such as maximum-security settings — including one who's been waiting 257 days and four still waiting after 109 to 180 days.

But as Travis County acted to lessen the pressure on its jails and correct a potential constitutional violation, last week's order raised the pressure on the Austin State Hospital, where the demand for beds has long exceeded the supply.
Half of state hospital beds are designated as "forensic" beds for competency restoration and the other half are used for mentally ill folk who seek treatment in emergency rooms. The Department of State Health Services told Lindell that when courts order them to take someone, they will comply, but "Emergency room patients next on the list to get a bed will now have to wait longer or find psychiatric services elsewhere." According to DSHS, "People committed to the Austin hospital for emergency care typically stabilize and are released in seven to 10 days," while "Restoring a defendant to competency averages 35 days."

Austin attorney Keith Hampton is pushing for more such court orders, telling Lindell, "To be incompetent to stand trial, your mental disability has to be real severe. But when I saw people in jail over 100 days, I just went, 'This is it; enough is enough.' ... Maybe this will make leaving disabled people in jail a very rare occurrence instead of a common one." Hampton has promised to share his legal briefs on the topic with any other attorney statewide with a client in a similar circumstance. Bully for him.

This development in a sense may be an outgrowth of Travis County creating a specialized mental health docket run by Judge Hohengarten. She told the paper that displacing emergency patients weighs heavily on her, but "It is not appropriate to treat them in jail. It's a liability for local counties, and it can be inhumane. It certainly is not a proper way to deal with mental illness." That's very true, but the same thing has been happening for many, many years. Perhaps consolidating all the cases in one county under a single judge surely helped clarify the issue and crystalize what exactly the judiciary can do about it when waiting lists for state hospital beds grow to untenable levels.

There's another aspect to the story I don't quite understand. Hampton
is pushing Travis County judges to put time limits on their orders that declare a defendant mentally incompetent to stand trial.

The strategy works well for Williamson County, where incompetency rulings frequently include a 14-day time limit for defendants to receive mental health treatment, District Judge Billy Ray Stubblefield said.

Hohengarten said she is contemplating a time limit as well — something between a week and 21 days.
Some misdemeanor cases, she noted, have been dismissed because a defendant's time in jail and the state hospital equaled the maximum possible sentence.

"It is not out of the ordinary to have people waiting for unreasonable amounts of time," Hohengarten said. "This has been going on for years."
I'm not sure I see how setting a short time limit would work given long state waiting lists for competency restoration beds, or for that matter how it would be any different from what Hohengarten is now doing much later in the process. What happens if the state fails to accept clients within 14 days, one wonders? Do judges order the state hospital to take them, as Hohengarten has, and doesn't that create the same displacement of emergency beds feared from her recent orders? It's hard to tell from the story how that works.

Legislation approved earlier this year (HB 2725 by Hartnett) ordered judges to count time on the waiting list for restoration services against the ultimate sentence, making it easier to get charges dismissed when time incarcerated reaches sentence length. The bill capped total incarceration time — including both in jail and the state hospital - at the maximum sentence for the alleged offense. As Grits wrote of the legislation this spring, "HB 2725 gives jails a release valve on the back end for less serious cases, but it doesn't resolve the underlying failure of the state to find the right mix of incarceration/institutionalization/community supervision, nor address mental illness in any but the most reactionary way, lurching from short-term crisis to crisis without an overall guiding vision for how all the pieces are supposed to work together. Such discussions, regrettably, are far from today's legislative debate."

Indeed, because the main need is more resources and the state's leadership has long been allergic to new taxes, Texas' political leadership appears utterly incapable of approving more than band-aid fixes to this problem, meaning it's up to judges like Hohengarten to push the envelope until the legislative branch actually addresses it.

County jails and state prisons have become the de facto mental health system in Texas already. This trend, if it continues to its natural conclusion - where forensic beds predominate in state hospitals - would just make it official that the only way to get treatment for serious mental health problems is to commit a crime. The issue has been neglected by state leaders for way too long, and despite dubious assurances by officials in the story that "help is on the way," there's no indication the problem will abate anytime soon without further judicial intervention.

See prior, related Grits posts:

Sunday, August 28, 2011

Four year theology degree to be offered at TDCJ while vocational ed slashed to the bone

Given that the state slashed funding for vocational and traditional education in Texas prisons this year, it seems counter-intuitive that a new religious seminary will open Monday in the Darrington Unit giving four-year religious degrees (from my preacher-brother's alma mater at the Southwestern Baptist Theological Seminary, no less), but that's what's happening according to this item in the Fort Worth Star-Telegram:
Texas' newest seminary will launch Monday -- inside a Texas prison.

It starts with 40 inmates who will be trained at the Texas Department of Criminal Justice's Darrington Unit in Rosharon, about 300 miles southeast of Fort Worth.

Fort Worth's Southwestern Baptist Theological Seminary will play a big role in the seminary, as will the Southern Baptists of Texas Convention and the Heart of Texas Foundation, as co-sponsors of the nondenominational program.

After inmates finish the 125-credit-hour program over four years, they receive bachelor's degrees in biblical studies and are sent to other Texas prisons, where they "minister to their fellow offenders," according to a release.

"The opportunity to provide education and growth for those in a prison unit .. is the opportunity to enable these inmates to discover a significant new way that through study will change life, perspective and hope for hundreds," said Paige Patterson, president of the Fort Worth seminary.
A Statesman story on the initiative by Mike Ward declared:
prison officials and supporters say that by making the program voluntary and without a denominational focus — much like another faith-based rehabilitation program operated for prisoners for more than a decade and now highly acclaimed at another nearby prison — any such issues have been avoided.

In fact, Texas offers religious programs at all of its 111 state prisons and has faith-based programs and initiatives involving more than 2,700 convicts at 24 of them.
Ward points out an interesting distinction between the seminary idea from other rehabilitation programs: "Unlike most current prison rehabilitation programs, the initiative is not designed for convicts who are about to be released or paroled. Instead, its participants are serving long sentences, most for violent crimes, and most will be behind bars for many additional years — if not the rest of their lives." Ward adds that "The cost to taxpayers: zero. Private grants and donations will pay all expenses of the seminary, which is patterned after a highly acclaimed minister-training program in Louisiana, officials said."

On one hand I can understand the impetus. Since the invention of the penitentiary religious reformers have believed prisons should actively seek to promote spiritual transformation. On the other, I'm not sure there's evidence religious education benefits prisoners more than the educational initiatives recently gutted at the Windham School District in TDCJ, and clearly there's nobody out there beating the bushes for "private grants and donations" to keep those programs running.

Another thing: Though the stories say the program will be non-denominational, the Southwestern Theological Seminary in Fort Worth was the site of a major fight between fundamentalist Baptist factions and less dogmatic religious scholars including Russel Dilday, the moderate president who was ousted by fundamentalists in 1994 for not toeing the hardest possible theological line. He even wrote a book (really a collection of columns) about the incident, titled "Glimpses of a seminary under assault." Can we really expect the trustees of an institution still ruled by the same faction that ousted Dilday to hew to a non-denominational, non-fundamentalist doctrine? For how long?

Relatedly, I wonder if the same deference would be granted when some Muslim sheikhs from Saudi Arabia or Pakistan show up and want to start a madrasah in TDCJ at no "cost to the taxpayer." If that happened, I'm guessing, the enthusiasm level among state officials wouldn't be nearly so high.

Thursday, August 25, 2011

Mandating insurance doesn't mean broke consumers can afford it

Critics of Obamacare need only look at the failure of the state of Texas' mandate that drivers buy auto coverage to see what a wrong-headed approach it is to require individuals to purchase insurance by law. Reports the Dallas News (behind paywall):
More than one in five Texas motorists lack the insurance that state law requires and the ratio is virtually unchanged from a year ago, a blow to the state’s 3-year-old program to sharply reduce the number of uninsured drivers on the road.

In addition, Dallas County continues to have the largest percentage of uninsured drivers among the state’s six largest counties, with 24.1 percent of cars and trucks lacking insurance coverage. That figure is down slightly from a year ago, state figures show.

Although the TexasSure vehicle insurance verification program showed good results the first two years after it began in 2008, reducing the number of uninsured vehicles from 24.3 percent to 21.6 percent in 2010, new statistics compiled in July show that progress has stagnated.

That means about 4.2 million drivers have no insurance, and law-abiding motorists shell out nearly $1 billion a year to protect themselves from damage done by drivers without insurance, state officials say. 
It's no shock at all that no-insurance rates are going back up at the same time unemployment in Texas is rising. “I’m afraid insurance is down the list on necessities for many people,” Mark Hanna of the Insurance Council of Texas told the News. “A lot of people continue to drive around without insurance even though they know it’s against the law. But they’re willing to take their chances they won’t get caught.”

You can only mandate that people buy insurance in the private market if they have the money in their pocket to do so. If and when they don't, requiring insurance coverage - whether health insurance at the national level or auto insurance at the state level - is inevitably a doomed strategy, which is why this blog has long advocated a pay-at-the-pump approach to minimum liability coverage.

Small counties can live off speed traps under new legislation: Report documents bills affecting judiciary

The Office of Court Administration this month "released a Judicial Council report (pdf) identifying all of the recently passed bills that affect the courts," we see from Carl Reynolds at CourTex. It's a lengthy list, and lots of these bills have been discussed on Grits before, but several bills I hadn't noticed caught my eye:

For starters, a new statute will likely turn Texas' smallest counties into full-blown speed traps, allowing commissioners court to make their budgets off of traffic tickets given to drivers passing through town. HB 1517 by freshman Rep. Jason Isaac (Glenn Hegar carried it in the Senate), "Authorizes counties with a population of less than 5,000 to use fines collected for highway law violations for any purpose approved by the commissioners court" up to 30% of the previous year's revenue. According to the drafting manual for the Texas Legislative Council (see here, p. 181) there are 51 counties that can now profiteer off traffic tickets for their entire budget: Armstrong, Baylor, Borden, Briscoe, Cochran, Coke, Collingsworth, Concho, Cottle, Crane, Crockett, Culberson, Dickens, Donley, Edwards, Fisher, Foard, Glasscock, Hall, Hansford, Hardeman, Hemphill, Hudspeth, Irion, Jeff Davis, Kenedy, Kent, Kimble, King, Knox, Lipscomb, Loving, Mcmullen, Martin, Mason, Menard, Mills, Motley, Oldham, Reagan, Real, Roberts, Schleicher, Shackelford, Sherman, Sterling, Stonewall, Sutton, Terrell, Throckmorton, and Upton.  Terrible idea. Grits predicts this will be abused immediately.

HB 2425 requires courts to "give notice to the attorney general of any action in which a party to the litigation files a petition or motion challenging the constitutionality of a Texas statute." After a couple of years or so, that should make for an interesting and provocative list.

Texas passed another statute, HB 253 by Rep. Harvey Hildebran, that's clearly aimed at the FLDS polygamist sect in West Texas but, naturally, will now apply to everybody. It lengthens the statute of limitations for bigamy to the later of ten years from the date of commission or of the victim's 18th birthday. It also raises the penalty for "failure to comply with the duties surrounding filing a birth certificate" from a Class C (ticket only) to a Class A misdemeanor. No off the grid kids: Next they'll want DNA samples from every live birth, or maybe they'll just save time and start tattooing every infant with a bar code.

Finally, a totally unneeded closed records bill: During the special session, SB 1 Article 79A made peace officer travel vouchers and reimbursement records confidential for a period of 18 months for members of the security details of state elected officials. This is all about Rick Perry not wanting to release his schedule to the public or tell them where he's been, who he's visited, etc., until long after the information would be useful to anyone performing a watchdog function. Attorney General Greg Abbott had already said those records from the Governor's office could be concealed, but this bill closes a back door reporters had used to try to access the information anyway. Absolutely absurd that voters can't know where the Governor went on their dime until 18 months after the fact, and downright pathetic IMO that the Governor would seek such an exception, much less that the Legislature would grant it.

Lots of other interesting stuff in the report but I thought I'd point out at least those few items.

No new private prisons needed if immigrant prisoners deported

After being assured by the feds that paroled inmates with deportation orders would actually be sent to their home countries and not end up supervised on parole, the Texas Board of Pardons and Paroles may soon begin paroling immigrants in Texas prisons with deportation orders - both legal and illegal, violent and nonviolent - to free up prison bed space under a new law passed this year. Reports Mike Ward at the Austin Statesman:
"I think several hundred would be a good start, as soon as they can," said state Rep. Jerry Madden, R-Richardson, who sponsored the legislation last spring.

Federal officials noted that some countries, including Cuba and Vietnam, will not take back their citizens. Those felons will have to remain in Texas, state officials said.

Bryan Collier, deputy executive director of the Texas Department of Criminal Justice that runs the prison system, said about 11,500 of Texas' 156,000 state prisoners are not U.S. citizens — and about 6,000 of those currently have a deportation order pending against them.
This is probably the most significant bill passed in the 82nd Legislature aimed at reducing incarceration pressure at Texas prisons. If it's implemented at all aggressively, the state shouldn't need to use new private prison beds authorized as a contingency by the Lege after the Central Unit was closed.

Wednesday, August 24, 2011

State won't convert old VA hospital for prison use

Reports Mike Ward at the Austin Statesman:
Four years ago, state officials heralded the gift of a red brick hospital in a residential neighborhood, unveiling plans to convert the onetime Veterans Affairs center into a prison hospital for women.

Today, after funding for the project evaporated, the six-story building remains vacant. But Texas taxpayers continue to pick up the tab for maintaining the empty structure — $1.2 million and counting, officials said.

Prison officials said they are following the wishes of the Legislature, but a key lawmaker whose committee oversees the prison agency said keeping the building makes little sense in such tight budget times. Meanwhile, the female prisoners whom the hospital was intended to serve continue to be transported to the Gulf Coast when they require hospitalization.
This project was first pushed by former state Sen. Kip Averitt, but after he left the Senate and was replaced by a freshman, there was no potent political constituency at the capitol for moving forward with the plan. As a result, "Within the past year, as part of cuts ordered by Gov. Rick Perry and state leaders to address a looming shortfall in the state budget, prison officials gave back the $10 million in operating costs that had been earmarked for the hospital."

'Innocence trumps' when prosecutors can't destroy evidence

To the surprise of no one, given how Williamson County pols seem to look out for their own, Judge Billy Ray Stubblefield refused to order recusal of Williamson County District Attorney John Bradley's office from an apparent wrongful conviction where the DA's office fought DNA testing for years and allegedly withheld an exculpatory witness statement made by the victim's child. Reported the Texas Tribune:
District court judge Billy Ray Stubblefield, who has been on the bench since 1993, said he was not prepared to take “the extraordinary act” of recusing Bradley. He said he had a “high degree of confidence” in the two assistant district attorneys in Bradley’s office handling the appeal and that he would “take this case as seriously as any case that has come before me in 19 years on this court.” [Michael] Morton's lawyers, who include attorneys with the Innocence Project, a New York-based nonprofit, had demanded that Bradley be removed from the case. ...

Earlier this month, after the Texas Department of Public Safety ran new DNA results through the national convicted-offender DNA database, prosecutors and defense attorneys were informed that the results matched a man whose blood had been collected at some point by law enforcement authorities in California. Last week, California authorities confirmed the match. ...

At the center of Morton's appeal are the June DNA results obtained from a bloody bandana that had been found at a construction site near the couple’s home shortly after the murder. For six years, Bradley fought advanced DNA testing of the bandana and other evidence, saying Morton's attorneys were searching for a “mystery man” and “grasping at straws.” The 3rd Court of Appeals ultimately ruled in Morton's favor and ordered the testing last year. The results revealed that commingled with Christine Morton’s hair, sweat and blood on the bandana was the DNA of a man who was not Michael Morton.

Raley said his own “informal” investigations of the new suspect, who is still at large, revealed he had a history of drug abuse and assault.

In addition to the DNA evidence, Raley said Bradley fought to keep under wraps a sheriff's department interview with Morton's mother-in-law conducted days after the 1986 murder in which she said the couple's young son had witnessed the crime. She said her grandson, 3 years old at the time, told her that a man who was "not Daddy" killed his mother. Raley also questioned whether the trial judge at the time had ever seen the document.
The real murderer might have been identified six years ago if Mr. Bradley hadn't fought DNA testing tooth and nail. Indeed, as regular Grits readers know, Bradley would likely have preferred DNA evidence had been destroyed outright to avoid exactly this outcome. In a now redacted string on the prosecutors' user forum (which Grits saved and uploaded here), Bradley advocated seeking DNA destruction as part of plea agreements on the grounds that "Innocence ... has proven to trump most anything." "A better approach," he said, "might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest." That stance was one of the reasons Texas senators criticized the Williamson DA before rejecting his confirmation this spring as chair of the Forensic Science Commission.

If the defense in this case was "grasping at straws," as Mr. Bradley derisively told the media all these years, they sure latched onto a strong one. I have a hard time imagining the courts will uphold Mr. Morton's conviction in the face of a conclusive DNA match to someone else.

On one point, Bradley was right: "Innocence has proven to trump most anything." But his conclusion from that observation was downright perverse. That means innocence claims, where they credibly exist, should be vigorously and rapidly pursued, not that evidence should be destroyed in order to reduce appellate opportunities and to make sure that actual innocence can never be established. The Michael Mortons of the world deserve better. Indeed, all of us do.

Austin lawyer, former state rep implicated in judicial bribery scandal

An Austin attorney and a former Texas state representative have been implicated in a South Texas bribery scandal involving defrocked district judge Abel Limas. Reports the Austin Statesman, Marc Garrett Rosenthal was charged "with 13 counts: conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act, five counts of mail fraud, one count of tampering with witnesses, two counts of tampering with proceedings, extortion and three counts of deprivation of honest services." Wrote Steven Kreytak:

The indictment alleges that Rosenthal paid former state District Judge Abel Limas, who left the bench in 2008, for favorable rulings in his cases. The indictment said some of those payments were facilitated by a law partner of Rosenthal's, former state Rep. Jose Santiago "Jim" Solis.

Solis pleaded guilty to extortion in April, admitting that he paid Limas thousands of dollars for favorable court rulings. Solis could face up to 20 years in prison at his sentencing.

Limas has pleaded guilty to racketeering and accepting bribes and is awaiting sentencing.
I somehow hadn't picked up before that a former state rep was implicated in the bribery scandal. Disgraceful.

UPDATE (8:25): Add a DA's investigator from Cameron County to the list of folks caught up in this corruption investigation.

Tuesday, August 23, 2011

Dallas PD hosts conference on social media

In September the Dallas Police Department is hosting a conference titled "Social Media In Law Enforcement" (SMILE). Here's a topline description:
Adoption of social media by law enforcement is in a stage of exponential growth. Some law enforcement agencies have already experienced tremendous successes; while others are ready but don’t know how to get started. The law enforcement field is ready to add another weapon to its arsenal. The Social Media the Internet and Law Enforcement (SMILE) conference will arm you with all the technical hands-on skills and the practical knowledge to enter the social media world with confidence.

The SMILE Conference is the leading conference devoted to Social Media, the Internet and Law Enforcement initiatives. The SMILE Conference has pioneered the adoption of social media by law enforcement agencies across the world for public outreach, crime prevention, and forensics. In conjunction with the ConnectedCOPS™ blog, The SMILE Conference has become both the go-to and most trusted source by law enforcement agencies worldwide.


The first day of the conference, attendees hear from law enforcement and communication professionals on topics of social media strategy, reputation management, policy and other issues pertaining to community outreach. This (the fourth) SMILE Conference will also emphasize the changing role between law enforcement, social activists and traditional media. Thursday will offer an entire day of topics covering social activists’ interference with investigations, maintaining public order, and mass surveillance in an open source world.
At $499 for pre-registration, it's a bit on the pricey side, but it'd sure be interesting to hear more about law enforcement and social media, both as a outbound communications strategy and their efforts to conduct "mass surveillance in an open source world."

'Sixteen and life to go'

John Browning at the Southeast Texas Record wrote a two-part story with the same title as this post describing the case of Chad Uptergrove, a 36 year old Texas prison inmate tried as an adult 20 years ago under the law of parties for a murder committed by an older friend. See parts one and two. Browning uses the case to discuss the wisdom of trying juveniles as adults, but adds that "before examining the issue of where Chad Uptergrove and so many youths just like him fit within the changing landscape of Texas' treatment of juveniles in the adult criminal justice system, a troubling question remains: did the jury convict an innocent young man?"

Ban warrantless searches of smart phones

Here's some new legislation out of California I'd like to see passed in Texas. From AP:
Lawmakers on Monday unanimously approved legislation that would prevent law enforcement officers from looking through the smartphones and other electronic devices of people they arrest unless they obtain a search warrant.

The Assembly voted 55-0 for the protections. The bill by Democratic Sen. Mark Leno of San Francisco returns to the Senate, which previously approved it in a slightly different form.

If eventually signed into law, SB914 would override a recent California Supreme Court decision allowing warrantless searches of electronic devices. The court ruled that police could use a suspect's text messages in a 2007 drug arrest without first receiving a judge's permission.
Technology has changed faster than our individual rights have been upgraded to protect from needless intrusion, and today people carry nearly as much personal information on their smart phones as on their home computers. If there's probable cause to go through that information, fine. Let a judge make that determination. But it shouldn't just be something police get to do by rote whenever they arrest someone.

Monday, August 22, 2011

SCOTUS to reevaluate eyewitness IDs

The US Supreme Court has accepted a case out of New Jersey in which it will evaluate the reliability of eyewitness testimony for the first time in 34 years, reports Adam Liptak in the New York Times. His column opens:
Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.
 See related Grits posts:

Hiring more police officers won't "save" city money

Debbie Russell at the Austin Post issued a thoughtful reaction to this Austin Statesman story by Patrick George which puts forth a pie-in-the-sky argument that "Hiring [police] officers could save Austin money." The argument, promoted by the Rand Corporation, is that hiring more police officers will directly result in lower crime and thus lower costs from crime to the citizenry. Writes George, "Hiring 47 new Austin officers — two of the 49 are airport police paid for by that entity — could mean 21 fewer robberies, 103 fewer burglaries and one fewer murder if the department is working at maximum efficiency," supposedly reducing overall costs to the community by $14.7 million.

Humorously, though, even Statesman commenters (a normally credulous lot when it comes to police department PR) nearly universally saw through this argument. Quipped one wag, "Why not just keep going. Let's reduce the unemployment in this town and hire 25,000 cops and save hundreds of millions of dollars and REBATE that money back to the taxpayers. Then the economy here will really take off!" From another: "According to this Alice in Wonderland logic, if we hired 400 more officers, crime would disappear."

Debbie makes a point emphasized on Grits in the past that the Austin Police Department's real staffing needs lie in civilian positions, and that hiring more rookie beat cops fails to address the city's most immediate crime fighting needs: investigators, 911 call takers, crime scene technicians, etc.. And she debunks a meme promoted by the police union and the department that there is a city policy requiring Austin PD to employ 2 officers per 1,000 residents; in fact no such policy exists, and there's no reason to believe that arbitrary number has any validity.

As for hiring more patrol officers, Grits believes the City should use the ones they have more effectively before hiring any more. A 2006 study found that 12% of APD police calls are spent responding to false burglar alarms. But despite calls for efficiency in government, nobody on the city council has suggested switching to verified response, instead preferring to continue inefficient practices and soak the taxpayer.

Debbie also pointed to another Austin Post article from the city's 2009 budget debate making the argument that Austin overspends on law enforcement compared to other jurisdictions. Here are a couple of notable charts compiled from that story, first on spending per full-time employee:

And also the proportion of General Fund revenue devoted to police and fire services:
For all that extra spending, though, Austin gets clearance rates and 911 response times that are average or worse, reported the Post.

The overemphasis on police spending stems from the local police union's political clout more than crimefighting needs. That's also why you see such an emphasis on hiring uniformed officers instead of crime scene technicians and 911 call takers: The latter aren't members of the union and pay no dues.

Another Statesman commenter dubbed "Your Superior" reacted to the story's bland assertion that, "The average Austinite would pay $265 more in taxes and utility fees in the coming year under the 2011-12 budget proposed." YS retorted: "It is very unlikely that I will make $265 more next year than I did this year. Most likely, I will make the same, or if the economy falters, a little less. I am going to pay for that $265 by taking food out of my shopping cart before I hit the check out line. It is the same sorry tale for the past five years of tax hikes."

Bottom line: The suggested possible benefits from reduced crime are speculative but the cost to taxpayers from hiring more officers is both certain and immediate. If the Austin city council hires more police officers based on this absurd analysis, no pun intended, they're buying a pig in a poke.

Hidalgo County tries house arrest to reduce jail overcrowding

Jared Janes at the McAllen Monitor reports ("New program to supervise inmates outside county jail," Aug. 21) that Hidalgo County will try a version of house arrest for selected offenders and pretrial detainees to reduce chronic jail overcrowding. The story opens:
An Hidalgo County pilot program promises to save the cost of housing prisoners outside of the county’s overcrowded jail by placing the low-risk, non-violent offenders into a house arrest environment.

The alternative incarceration program projects to save the county more than $766,000 in its first year — based on a pilot group of about 50 inmates. The pilot program will help to alleviate the jail overcrowding that forces the county to pay a daily rate of $42 to house up to 200 inmates at the La Villa Detention Center.

But Hidalgo County Sheriff Lupe Treviño, whose office will participate in the program, said it also offers a better alternative than jail for first-time offenders who will be allowed to work and support their families under the supervision of a probation officer.

“Not only is it going to help our overflow problem, but it’s going to give these individuals a second opportunity — like a ‘scared straight’ program,” Treviño said. “You’ve been arrested and you’ve seen what a cell looks like, but I’m going to give you this opportunity to live at home with a productive life and abide by our society rules.”

Administered by the Hidalgo County Adult Probation Department, the alternative incarceration program will place offenders who would normally be incarcerated at the Hidalgo County Jail into a house arrest program that provides service and treatment options to the inmates.

The alternative incarceration program costs little to operate but can make a big dent in inmate housing costs, said Arnold Patrick, the county’s adult probation executive director.

Under the program, the county jail list will be reviewed daily to identify offenders who appear to be candidates for the program. Candidates will be selected based on their offense — the program is off-limits to those charged with violent offenses or felonies — and their prior criminal history.
In an attempt to lower the county’s jail population, the program will target low-risk offenders sentenced to county jail, those awaiting probation hearings or those not eligible for personal recognizance bonds.
I've heard of house arrest being used in sentencing before, but I'm not sure I've seen it suggested as an alternative for pretrial defendants who are "not eligible for personal recognizance bonds," who of course make up the bulk of the jail population. The story conflates pretrial detainees and defendants convicted and sentenced, but those are substantively different categories of folks. How does pretrial "house arrest" jibe with the presumption of innocence? After all, if these folks could afford bail, they'd just be out on their own without supervision. One wonders: Is house arrest really a better or cheaper option than just reducing their bail?

Also, one wonders who will do the selecting for this program - judges or prosecutors - and if it's the latter, will they be willing as a practical matter to reduce the leverage given them by pretrial incarceration in plea negotiations?

That said, I'm pleased to see more counties seeking alternatives to incarceration. The trend seems to reflect a growing view among jurists, prosecutors and corrections officials that jail is not a universal solution, and that the threat of incarceration is a greater deterrent than the reality of it. Except for its use on pretrial detainees, this sounds to me in practice like another version of strong probation. Jail space is a limited resource so "incapacitation" cannot be the primary approach to crime because it's fiscally impossible to lock up everyone arrested ad infinitum. And anyway, only misdemeanor defendants are sentenced to jail time for a max of one year (as opposed to felons who're sent to prison for much longer periods), so in terms of sentencing there are real, temporal limits to using county jails as an incapacitation strategy.

To the extent punishment deters crime, it does so by changing how potential offenders think about their actions and the consequences. As a parent, I learned that often punishing a child for misbehavior punishes the adults as much as the kid (e.g., when she's grounded, I had to stay home too; punishments must be implemented, and doing so is the suckiest part of parenting). Usually the threat of immediate punishment is a greater deterrent than actually punishing. (For every time my daughter was punished, there were many more times when the threat of punishment altered behavior.) Jail time is relatively easy to endure, in practice - three hots and a cot, after all - but in the mind's eye it looms large as a negative experience for all but the most jaded frequent flyers. So community supervision strategies utilizing the threat of jail, for most offenders, work better than using jail as a one-size-fits all approach. It's good to see more counties beginning to realize it..

Sunday, August 21, 2011

How will California comply with prison population reduction order?

For those interested in how California is complying (or attempting to) with federal court orders to reduce their incarceration levels, the Prison Law Blog had a good basic roundup  recently of a policy that's being dubbed "realignment" (shifting state inmates to county jails) including summaries of what various CA counties are doing in preparation. Adds blogger Sara Mayeux, " If you’re looking for a more comprehensive resource, the ACLU of Northern California has produced a helpful guide (PDF) to the law and how counties can plan for the changes."

Universities won't flock to participate in money-losing prison healthcare

There's a strange and extraordinarily unrealistic proposal being floated on prison healthcare, reports Mike Ward at the Austin Statesman: "Facing a $130 million cut in funding and no fewer patients, officials who operate the network of medical care for state prisoners say they are considering a plan to expand providers to include five additional public medical schools to help those at the University of Texas Medical Branch and Texas Tech University."

Given that Tech and especially UTMB claimed to have been losing money hand over fist BEFORE recent cuts to prisoner healthcare, I have a hard time imagining other universities seeking to get in on the deal without the Legislature forcing them to participate (which couldn't happen before 2013). Hell, UTMB would desperately like to get out of the deal, but the Legislature won't let them.

Another line from the story struck me as at best wishful thinking: "When the Legislature approved funding for prison health care in May, leaders said they were confident the amounts would be enough to cover all the costs — if prison and medical officials worked to make the system more efficient." That's not really accurate. Nobody was confident the new budget would cover all costs, they just hacked away at the budget with a machete without any formal assessment of whether or not constitutional levels of care could still be delivered under the new budget.

Indeed, they'd been told previously that at the old levels of funding prison healthcare was barely constitutional. When the cuts were finalized in May, Grits wrote that "As far back as 2005, UTMB officials said the system was near the brink of failing to provide constitutional levels of care: 'We can't go any farther,' said [Dr. Ben] Raimer, a physician and former chairman of the state's Correctional Managed Health Care Committee. 'I'm certainly not going to be involved with a system that is not constitutional. . . . We're at that line now. One step across it and we're there.' Unfortunately, the state since then has taken several more steps across that line, culminating in this year's outright draconian cuts."

The latest budget cuts coincide with another important change in how prison healthcare is structured, with TDCJ bureaucrats calling the shots now instead of the old Correctional Managed Health Care Committee. Wrote Ward:
The difficulties facing the prison health care system are even more pronounced because the Legislature changed the management structure this year, according to several officials familiar with the discussions but who asked not to be quoted by name because they are not authorized to speak publicly.

Previously, the health care system was coordinated by the Correctional Managed Health Care Committee, created in 1993 to oversee care by UTMB and Tech. The idea was to have a committee with a majority of doctors who could focus on access to care and the quality of care, not prison officials or prison board members, who were not medical professionals.

Now, the Legislature has returned the management to the Texas Department of Criminal Justice, and prison officials are in charge. The committee is shrinking from nine to five members, and the prison board will sign and manage the contracts for care, instead of the committee.

On Friday, the prison board took the first step to take charge, approving a six-month extension of the contracts with UTMB and Texas Tech to allow for new contracts to be negotiated. UTMB and Texas Tech officials were not available for comment.

In the past year, both universities have downsized the hours and staffing at prison clinics to try to stay within the budget. But with drug costs and other expenses rising, they have been hard-pressed to keep up — triggering increasing complaints about slow access to care at many prisons.
Changing the management structure will do nothing to reduce costs and anyone claiming they were "confident" budgeted amounts will cover prison healthcare expenses is either a fool or a liar. Given inflation in the healthcare field and reported losses by UTMB and Tech in prior years, nobody in their right mind could possibly believe the Lege budgeted enough for this line item. One notices that confidence wasn't attributed to anybody willing to put their name on such a ridiculous statement.

At the end of the story, House Corrections Chairman Jerry Madden said, "While we think there are efficiencies that may be realized in the current system, we don't think they should reduce services below what is required. ... I'm sure if they need additional funding, they will come discuss it with us." Well, sir, they already came and discussed it with you: They told you what it would cost to run prison healthcare in TDCJ's Legislative Appropriations Request and y'all slashed it by nearly $130 million. Why would anyone think the Lege would provide "additional funding" anytime in the near future? And even if they ask for more money, the state is broke: Where would it possibly come from?

Texas prison healthcare costs were already among the lowest (per prisoner) in the nation, and the latest budget cut not just to the bone but through it. No matter what discussions happen behind the scenes between TDCJ and legislators (or for that matter, other medical schools), it's clear to me the Legislature is leading the agency down the same path that ultimately caused  a federal court to order California to radically reduce its prison population because of inadequate healthcare. Like California, the Texas Lege wants to cut corrections spending but this session was politically incapable of taking the only action that could realistically achieve that goal: Reducing the number of prisoners incarcerated. So don't be surprised if, given the Legislature's inability to manage its business, sometime in the future the federal courts end up having to do it for them, just like in the Golden State.