Friday, September 30, 2011

Police bone up on social media, high-tech crime investigations

After Grits' recent post about Austin PD's ill-conceived "wardriving" strategy to seek out and map open wifi connections - which was shut down by APD Chief Art Acevedo - I learned that the detective in charge of the department's Digital Analysis Response Team (DART) is the president of the Austin High Tech Crime Investigators Association, which will hold a two-day training late next month. (See details here.) One 3.5 hour session pertains to "Wifi Investigations and Exploits," which seems on point with the wardriving tactic, as well as other seminars on various aspects of high-tech forensics and investigations. Since these are topics I know little about, I signed up for the $130 event - thanks to Grits readers' generous contributions - so here in a month or so perhaps we'll have a bit more insight into the goals and methods behind such approaches and a better sense of what's going on in the field with police departments, high-tech investigations and digital forensics.

I can only attend such events because of generous support of Grits contributors, so to those who give monthly or have donated to the blog in the past, thank you: My goal is for y'all to get a better blog product in return by using contributions to pay for learning opportunities like this one. If I had to cover such things out of my own pocket, it just couldn't happen.

Relatedly, see the Dallas Observer's coverage of the "SMILE" conference in Dallas this week where police departments are learning to use social media for both publicity and investigations. Grits had an item previewing the SMILE conference back in August.

MORE: Scott D from the Crime Analyst's blog is at the SMILE conference and has posts here and here from the event.

NUTHER THOUGHT: I'd like to know what if any discussion took place at the conference regarding recent murders by Mexican drug cartels of social media users who exposed or criticized organized crime gangs online. Perhaps Scott D can tell us if the subject came up.

Conservatives praise 'Texas model' on criminal justice reform

Just received this press release from the Right on Crime initiative announcing two new public policy reports from the Texas Public Policy Foundation:
September 30, 2011

Right on Crime and TPPF Release Reports on Texas Corrections Reform

Texas achieves dramatic results in criminal justice reform

AUSTIN, TX - Right on Crime and the Texas Public Policy Foundation (TPPF) today released two policy briefs regarding Texas' extensive criminal justice reforms in juvenile and adult corrections. Over the last decade, the groups' policy advisors have been instrumental in working with the Texas legislature and Governor Rick Perry to overhaul the state's corrections system.

"For the first time in state history, Texas closed a prison because we don't need it anymore," said Marc Levin, Senior Policy Advisor to Right on Crime, who also serves as the Director of the Center for Effective Justice at the Texas Public Policy Foundation.  "The reforms that were first adopted in Texas have stimulated similar initiatives across the nation in South Carolina, Kentucky, Georgia, Ohio, Arkansas, and other states.  Crime has dropped in Texas since the changes and taxpayers have saved more than a billion dollars from not building new prisons.  We believe these commonsense policies, which were supported by 'tough and smart on crime' conservatives and are outlined in these reports, can serve as an effective model for other states."

According to the report Adult Corrections Reform:  Lower Crime, Lower Costs, policies initiated since 2005 have expanded capacity to alternatives to incarceration that hold nonviolent offenders accountable and provide effective supervision. This has helped Texas reduce its crime rate by 12.8 percent since 2005 while also reducing its incarceration rate by 9 percent. Additionally, the number of new crimes committed by parolees fell 8.5 percent from 2007 to 2010.

The second report, Comprehensive Juvenile Justice Reform:  Cutting Costs, Saving Lives, revealed that through key reforms, Texas was able to reduce the number of juvenile crime cases by 9.1 percent from 2007 to 2011.  Among the reforms, Texas moved away from an overemphasis on incarcerating less serious youth offenders in remotely located state lockups and towards evidence-based community corrections programs that produce a greater reduction in re-offending for every dollar spent.

"While we have more work to do, the Texas model of reform has proven to be extremely effective in both increasing public safety and saving taxpayers' money," said Brooke Rollins, president of TPPF and a Right on Crime signatory. "In criminal justice, it is vital to align policies with the current research indicating what works to protect communities and reform offenders, rather than simply maintain the status quo. The commonsense approach outlined in these new reports provides a roadmap for other states to follow Texas' model in modernizing the corrections system in a way that reduces crime and cuts costs."

To view the reports, click here.
While the state deserves credit for various reforms passed in the last few years, this last session Texas legislators backed away from a more aggressive reform agenda, much to this writer's dismay, de-emphasizing the strategies embraced over previous sessions instead of doubling down. As regular readers, know, I'm willing to give credit where credit's due, but I was disappointed Texas legislators didn't seize the opportunity presented to them by the budget crisis to more radically reform the corrections system, particularly on the adult side. Indeed, in many ways I fear this failure to act in 2011 may, in the medium to long run, set the agency up to fail.

Thursday, September 29, 2011

Dismissals, case outcomes often don't make it into state criminal history database

The State Auditor's Office has released a report on criminal justice information systems at the Texas Department of Public Safety and the Department of Criminal Justice, raising questions about the accuracy of criminal history data at both agencies. The Fort Worth Star-Telegram has a brief story on the subject, but let's dig into the audit (pdf) in more detail.

The biggest issue at DPS is a failure to record more than 1/4 of "dispositions," i.e., outcomes, related to arrests logged into their system, primarily because "DPS does not have authorization ... to penalize" prosecutors and courts who don't submit such data. "As of January 2011, prosecutor offices and courts had submitted disposition records to the Computerized Criminal History System for 73.68 percent of arrests made in 2009.

Such omissions can lead to critical errors, as demonstrated by the case of Walter Rothgery, whose false arrest for being a felon in possession of a firearm (he had never been convicted) happened because the outcome of a prior case had never been entered into the system. Lots of people are arrested for things they're never convicted of, and failure to enter disposition data into the system means many of them will be blamed in the future for charges that were dismissed.

According to the audit, of records submitted to DPS between Sept. 1, 2009 and Nov. 30, 2010, an astonishingly low "47,051 (63.61 percent) of 73,967 records for criminal charges that prosecutors dismissed were submitted within 30 days as required." You'd think dismissals - clearing people's names from un-adjudicated charges - would be among the most important information to ensure gets into the system, but more than 1/3 of dismissals aren't reported in a timely fashion.

Poor information gathering on the front end leads to gaps in information for decisionmakers later in the process. Remarkably, examining a one month sampling of data, auditors identified 1,634 offenders who began serving sentences in prison, jail or on probation in November 2010 for whom the Computerized Criminal History System contained no sentencing information from courts or prosecutors. For offenders sent to jail or prison that month, a whopping 19.29 percent of records at TDCJ failed to include an "arrest incident number," meaning the state can't tell for sure the arrest event associated with their incarceration.

Prosecutors and courts, though, aren't the only ones failing to forward sufficient data upstream. The system "lacks arrest records to match with at least 65,424 prosecutor office or court records collected between September 1, 2009 and November 30, 2010. DPS could not match those records because law enforcement agencies had not submitted arrest records appropriately or because the prosecutor offices and courts submitted erroneous data that prevented DPS from matching records."

Counties recording complete data in less than 90% of cases are supposed to submit plans to DPS for improving their record keeping, but that relatively recent requirement doesn't seem to have resulted in substantial improvements in reporting local case data to the state.

Making matters worse, a majority of disposition data submitted by law enforcement is inaccurate. Auditors sampled records from four law enforcement agencies - Garland PD, Houston PD, and the Harris and Kerr County Sheriffs - and found that 59.55% of arrest records "incorrectly showed that the individual was held in the custody of the law enforcement agency when the individual had actually been released." So basically, once you're arrested, there's a good chance state databases will show that you're still caught up in the system even if charges have been dismissed, you've been released from custody, etc..

Other parts of the audit examined information systems at TDCJ and local probation departments that feed them data on community supervision. "Auditors reviewed the error logs for the five largest local probation offices. TDCJ identified errors in 415,453 (22.60 percent) of the 1,838,576 probation records those local probation offices submitted from September 1, 2009 through February 28,2011," meaning more than one in five probationer records contained errors. However TDCJ "was not able to determine how many of those errors remained and how many had been corrected."

I was interested to learn that "TDCJ submits the state identification number of probationers to DPS each day to determine whether probationers were arrested," but nearly half of Texas probation departments do not monitor that data. The notifications to probation departments of probationer arrests are called "flash notices," but "as of May 2011, users representing 120 (47.24 percent) of the 254 counties had not viewed arrest records associated with flash notices in at least 90 days. That included 56 (41.48 percent) of 135 total users in the 254 counties which had not accessed their accounts within a six month period. Those counties are listed in an appendix.

Bexar County, the audit noted, "had not viewed arrest records associated with flash notices in more than a year" and reviewed arrest data in a local system that includes only arrests in that county. "As of May 5, 2011, Bexar County's CSCD did not have a flash coordinator because it was not aware of the flash notice process," which it should be mentioned provides more fuel for critics of that often-dysfunctional department.

Concerns were also raised in the audit that both DPS and TDCJ had staffers authorized to access or alter data who didn't need it for their job description. At DPS, "Twenty-six staff had administrative access that enabled them to modify criminal records, security configurations, and application functionality of the Computerized Criminal History System," but "only one of those individuals required the ability to modify security configurations to perform the individual's job duties." Giving users inappropriate access, said the auditor, "increases the risk of fraud and unauthorized modification of criminal records."

Similarly, TDCJ does not adequately restrict access to its Corrections Tracking System, meaning "a risk still exists that unauthorized changes would not be detected or prevented. In addition, TDCJ does not adequately back up its system, so if "an unprotected database file was deleted, TDCJ could risk losing criminal data and disrupting the availability of the Corrections Tracking System."

Remarkably - and this should be worrisome to local probation directors - one of the auditors' recommendations was that "TDCJ should consider reducing the funds it provides" to probation departments that don't provide all the data on probationers they're supposed to. Somehow I doubt that will happen, but TDCJ said they agreed with the recommendation and at least in theory could do so. DPS, by contrast, has little if any leverage to force courts and prosecutors to improve their data collection.

This is a story reporters in regional markets could localize for the various agencies in their area. See the full report (pdf) and appedices with county level data for more information.

Wednesday, September 28, 2011

Your afternoon criminal justice reading list

Here are a few odds and ends that deserve Grits readers' attention, though I don't have time to discuss each story today as thoroughly as one might like:

Buyer of empty private prison backs out of deal
Texas Prison Bidness reports that the online sale of the Billy Clayton Detention Facility in Littlefield has fallen through - further evidence that the private prison boom in the state has gone bust.

Supervisors punished for whitewashing DWI by on-duty officer who hit school bus
Houston PD disciplined seven officers including an assistant chief in the wake of an HPD officer driving drunk on his way to work who crashed into a school bus. (See earlier Grits coverage.) It's highly unusual to see police supervisors punished for covering up misconduct by their underlings, but doing so is the only way to keep it from happening.

Video testimony won't satisfy confrontation requirements
Liberty and Justice for Y'all informs us of an important decision from the Texas Court of Criminal Appeals strengthening the confrontation clause requirement in child sex abuse cases. The CCA held that using videotaped testimony and written interrogatories from a child sex abuse victim did not satisfy Confrontation Clause requirements under the Supreme Court's recent Crawford decision, declaring, "We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte  interview, is a constitutional substitute for live cross-examination and confrontation...There was no "rigorous adversarial testing" of [the child victim's] testimonial statements by that greatest legal engine for unconvering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution."

Court of Criminal Appeals reduces sentence for cattle rustler
In another rare pro-defense ruling from the CCA, reports KWTX-TV, "The Texas Court of Criminal Appeals ruled Wednesday that a convicted cattle rustler who insisted he's been wrongly kept in prison beyond his sentence has served his time and should be released next month."

Corpus Christi "officer of the month" targeted in civil rights suit
Texas Watchdog reports that a recent "officer of the month" at Corpus Christi PD is also the subject of a civil rights lawsuit alleging "unlawful arrest, using excessive force and assault and battery." See a more detailed account of the federal suit from the Courthouse News Service.

Grotesque consequences from alleged medical neglect in Galveston jail
The Southeast Texas Record has the story of a lawsuit from a paralyzed inmate who suffered a staph infection in the Galveston County Jail, which went untreated until the inmate was transferred to TDCJ.  "According to the suit, a state-designated doctor's apparent neglect to properly treat Eubanks resulted in the complainant being taken to the University of Texas Medical Branch in Galveston where physicians removed his legs, a testicle and his rectum." Yikes!

Are county jails the answer for CA prison overcrowding, or more of the same?
As California shifts state prisoners to county jails to comply with a federal court order, the Los Angeles County Jail has come under fire for conditions that in some ways are worse than those in state facilities. See overage in the New York Times and a new report (pdf) on the subject from the Southern California affiliate of the ACLU.

Thousands of federal crimes contribute to mass incarceration
Check out a fascinating story from the Wall Street Journal titled, "As federal crime list grows, threshold of guilt declines," along with this wonderful interactive graphic showing how federal prosecution priorities have evolved away from fraud, white-collar crime toward immigration, drug and firearm offenses. Via Sentencing Law & Policy.

Changes to sentencing laws make prosecutors nearly all-powerful
A recent front page article from the New York Times titled "Sentencing shift gives new leverage to prosecutors" describes trends familiar to Grits readers: "After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties." Further, “'We now have an incredible concentration of power in the hands of prosecutors,' said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that 'in the wrong hands, the criminal justice system can be held hostage.'”

Death penalty myopia and life without parole
Doug Berman at Sentencing Law & Policy has a terrific post up that argues, IMO rightfully, that myopic focus on the death penalty by partisans obscures debates about excessive use of life without parole sentences. I couldn't agree more. In another post, Berman endorses the view put forth by New York Times columnist Ross Douthat which argues that "a lifelong prison sentence can prove more cruel and unusual than a speedy execution.  And a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity.  It’s just become better at self-deception about what’s really going on."

Forensic science for judges
Today, thanks to the generosity of Grits contributors, I ordered a new (and a little expensive, at $80) book for judges from the National Research Council - the 3rd edition (and the first update since 2000) of the "Reference Manual on Scientific Evidence." I'm looking forward to see what advice is given to judges on forensic science topics in the wake of reevaluations by the National Academy of Sciences and others of traditional but non-science-based forensic methods. You can read the book online here, but at nearly 900 pages that method seemed a little onerous so I sprung for a hardcopy. More on this later, I'm sure.

LBB criminal justice data team to host policy forums

Grits neglected to post a recent notice (pdf) from the Texas Legislative Budget Board's criminal justice data team about a series of upcoming forums about criminal justice data, law and policy, but TCJC's email alert today reminds me that the first one is coming right up:
Don't miss out on Criminal Justice Forums, held the first Friday of each month, beginning on October 7th. The forums will be hosted by the Criminal Justice Data Analysis Team of the Legislative Budget Board, and they will present various reports on criminal and juvenile justice issues.

Location:   Robert E. Johnson Conference Center
                 1501 N. Congress
                 Austin, TX 78701

Time:         1:30-3:00 PM

Price:         Free

Questions: Contact 
  Or call Michele Connolly or Ed Sinclair at (512) 463-1200

Below are the first 2 (of 7) events. We will inform you about future forums in our upcoming e-alerts.

(1)  Overview of the LBB and Texas At-Risk Youth Services Project - October 7th

Presenters: Michele Connolly, Ed Sinclair

An overview of the Legislative Budget Board and the Criminal Justice Data Analysis team will be provided at the beginning of the first Criminal Justice Forum. Additionally, a brief overview of the Criminal Justice Forum's format will be discussed.

The Texas At-Risk Youth Services Project (ARYSP) is a research project aimed at improving service delivery to youth at-risk of juvenile delinquency in Texas. The ARYSP employed a hybrid quantitative/qualitative research method to better understand the delivery of services to at-risk youth in Texas and provide legislative recommendations to the 82nd Texas Legislature (2011). This forum will explore the background of the ARYSP, its findings, related legislative outcomes, and the next phase of the project.

Click here to read the report on ARYSP.

(2)  Uniform Cost Report - November 4th

Presenter: Laurie Molina

The Uniform Cost Report is an ongoing publication detailing cost-per-day figures for adult and juvenile correctional populations. This forum will provide audiences with insight regarding the many factors involved in determining cost figures for various populations. The forum will also explore methodologies, findings, and historical trends.

Click here to read the Uniform Cost Report.
See this flier (pdf) from LBB for more information about these and other planned criminal justice forums in the future.

"How-to" guides detail new reform legislation aimed at de-incarceration

In an email announcement today, the Texas Criminal Justice Coalition links to three new "how to" briefs for practitioners on implementation of reform bills passed during the 82nd Texas Legislature:
During Texas' most recent legislative session, policy-makers passed various smart-on-crime policies that will benefit the lives of countless Texans. 

Below, we have provided links to 3 new "How To" Briefs we created to help practitioners implement 3 of these critical bills.  Please click on the links to download a PDF version of each:
These are useful tools for judges, attorneys, probation professionals, programming providers, and those impacted by criminal justice system.
The latter two bills give probationers and state jail inmates credit toward completion of their sentences for participation in various treatment and work programs, payment of court fees and restitution, etc.. State jail felons could see their sentences reduced up to 20%, while probationers may more quickly reach the point where judges can authorize their early release from probation. The new programs aim to give offenders incentive to participate in programming and comply with probation conditions. That should also allow the state to focus limited supervision resources on offenders who aren't actively pursuing rehabilitative goals. These types of "diligent participation" or "earned time" credits have been used in other states more aggressively but in Texas have atrophied in recent years from disuse. Only time will tell whether judges use the tools in the legislation or ignore their new authority.

SB 1055 is a smart idea that will take a while to implement, but which ultimately provides financial incentives to local probation departments that could substantially reduce incarceration levels at the Department of Criminal Justice. The bill allows (but does not require) probation departments to create "Commitment Reduction Plans" which sets a concrete target amount by which the county will reduce the number of people sent to TDCJ compared to the previous fiscal year. In return, TDCJ would award the county a lump sum equal to 35% of the savings to the agency from reduced commitments, and establishes further incentives for reducing new crimes, increasing restitution payments, and encouraging gainful employment among probationers. Accoding to TCJC:
Supplemental funds may be used "to provide any program or service that a department is authorized to provide under other law, including implementing, administering, and supporti ng evidence-based community supervision strategies, electronic monitoring, substance abuse and mental health counseling and treatment, specialized community supervision caseloads, intermediate sanctions, victims’ services, restitution collection, short-term incarcerati on in county jails, specialized courts, pretrial services and intervention programs, and work release and day reporting centers.” This money is in addition to any per-capita or formula funding for CSCDs [local probation departments].
Actually sharing savings from reduced incarceration with local probation departments realigns CSCDs' incentives in positive ways, discouraging probation revocation for less serious cases while giving departments more resources to manage probationers. Formula funding for probation departments is much lower than the per-offenders savings from reduced incarceration, so there's a real incentive for CSCDs that create Commitment Reduction Plans to manage less serious offenders in the community instead of turning to revocation at the first opportunity.

If probation departments fail to meet their goals for commitment reduction, they must return a prorated portion of the extra money they received at the end of the fiscal year.

In the past, the state gave grants to probation departments with the goal of encouraging reduction in revocations for technical probation violations. But that carrot was never accompanied by a stick, and departments that ignored revocation-reduction goals - notably Bexar and Collin, among larger counties - essentially faced no consequences. SB 1055 includes stronger mechanisms for holding departments accountable, as well as more lucrative incentives for meeting stated goals.

That said, it will be a while before we see the effects from SB 1055. Commitment reduction plans must be submitted within 60 days after the end of the gubernatorial veto period, but no CSCDs submitted a plan before the deadline in August. That means the first functional Commitment Reduction Plans - assuming CSCDs embrace the idea - won't be submitted or approved until two years from now. So the bill represents a long-term strategy, not something that offers short-term relief for the essentially chock-full prison system. But moving forward, sharing savings from reduced incarceration with local probation departments offers a promising strategy for restructuring incentives in ways that lower incarceration levels instead of maximize them. These are incremental changes, but positive ones.

Tuesday, September 27, 2011

Houston police union rolling in cash, but six-figure thefts went unnoticed for years

In August, Grits criticized a phony-baloney charity called the Texas Highway Patrol Association for misrepresenting themselves in phone solicitations they claimed would raise money for the families of dead troopers, but which mostly go toward fundraising costs and into charity organizers' pockets. Now we get word that a Houston police officer was convicted last week of stealing $656,000 from the Houston Police Officers Union, including $400,000 from a phone solicitation arrangement similar to the THPA and another quarter million from the union's PAC. Reported the Houston Chronicle:
Testimony showed [Matthew] Calley stole more than $400,000 from an account dedicated to helping officers in dire financial straits and providing scholarships. It was funded by telephone solicitations of citizens and businesses.

The rest of the money Calley took was from the group's political action committee's account. Speaking to Calley, state District Judge Michael McSpadden said the 20-year sentence was because of the amount taken and "the betrayal of trust."

Calley faced punishment ranging from probation to life in prison after pleading guilty to first-degree felony theft in excess of $200,000 and misapplication of fiduciary funds.
Remarkably, this isn't the only such recent case involving Houston police union officials, reported the Chron:
Former Houston police officer Ronald L. Martin, 55, was sentenced to 10 years probation and restitution of $40,000 after pleading guilty in February to theft by a public servant.

Martin and his former son-in-law Jeffrey Larson, 43, both union officials, were indicted in 2008 on felony charges of misapplication of fiduciary property, accused of allowing between $100,000 and $200,000 to be stolen from the union.

Larson's case is pending trial.
Amazingly, union officials downplayed the impact of so much money being stolen:
Gary Blankinship, the union's president, said emergency union funds were not affected because the money was stolen gradually and not in one large amount.

"We've always had money in that account,'' Blankinship said. "Realize this went on for years and years to reach that amount. ... We were always able to meet obligations."

Blankinship said the thefts could have affected the number of scholarships awarded to children of police officers, but added they stayed "fairly consistent" over the years the theft occurred.
For union offiicials not to have noticed so much money missing from their charity and PAC tells this writer two things: 1) The union is rolling in cash, and 2) there's no meaningful oversight of how union funds are spent.

2,000 jobs cut at TDCJ

Summarizing the effect of state budget cuts on job losses, the Texas Tribune's Becca Aaronson mentioned that the greatest number of jobs eliminated came from the Texas Department of Criminal Justice, which employs more people than any other state agency:
The Texas Department of Criminal Justice, the largest state government employer, lost more than 2,000 state-paid full-time positions. Agency spokeswoman Michelle Lyons said the job losses were “absolutely because of the budget cuts.” The agency attributes the loss of 1,000 positions directly to lost funding. The agency also chose not to fill many vacant positions, Lyons said, and eliminated programs, transferring the services offered by those programs to other departments. “Everyone was trying to be pro-active in identifying areas where we could save money in these economic times,” she said.
So Texas cut 2,000 prison jobs but failed to enact legislation that will significantly reduce the prison population. As Grits suggested earlier this year, most of those cuts came through attrition, which is possible because of the extraordinarily high turnover rate among Texas prison guards. Not only does high turnover among "new boots" contribute to understaffing at prisons, it also partially explains the high volume of contraband flowing into Texas prisons despite so-called "zero tolerance" policies which have been in place for several years. Less experienced staff with fewer institutional ties are more prone to corruption.

Will such large force reductions harm safety for prison staff and inmates or limit the number of beds the state can operate? Already we've seen reports of increased mandatory overtime to make up for fewer boots on the ground. It wasn't that long ago that TDCJ faced staffing shortages so severe that administrators had to shut down whole prison wings because of too few guards to oversee them. One wouldn't be surprised to see the same situation recur in the near future. With accompanying cuts to health insurance and retirement benefits for prison staff, even in the current recession, it's not likely to get any easier for TDCJ to recruit and/or retain staff in the short to medium term.

Institutionalization in prison thwarts reentry

The SA Express News over the weekend reported on the case of Randall Church, who says he committed arson soon after being released from TDCJ because he couldn't handle life in the free world and wanted to go back to prison. Wrote reporter Jazmine Ulloa:
Inside his small, gray cell within the Texas prison system, Church forgot the world and it forgot him.
Stepping out to freedom, “I didn't know how to use computers or cell phones or the Internet,” Church said. “The weirdest thing was walking into a store, like Walmart, and have parents hide their children from me, like I was supposed to jump at them.”

Fed up on July 10, 96 days after his release, he poured gasoline through a window of the empty house on the Southeast Side, then threw in flaming rags and paper towels, setting the place on fire.

Days later, he told police he did it because he wanted to go back to his job at his former prison unit.
If true, this was a pitiful and desperate act. That said, I'm personally a little skeptical of the "send me back to prison" motive attributed to the arson. (He didn't turn himself in immediately, and at the end of the story, Church told Ulloa that setting the fire excited him, declaring “It was my Fourth of July.”) But I don't doubt for a second that somebody who went to prison during the Reagan Administration would find it difficult to cope in the modern world without work skills, family or a support network. After a certain point, it's hard to shed an institutionalized mindset to embrace a world so different from the one left behind in their youth (which is something Texas exonerees who've served extraordinarily long sentences have confided to me in the past).

More compelling (to me) than the man-bites-dog story of an offender wanting to go back to prison was the accompanying meditation by Ulloa on the perils of reentry facing those returning to society after long prison sentences:
While Church was behind bars, the federal and state prison population more than quadrupled.

The numbers of inmates in the United States grew from 319,598 in 1980 to 1.5 million in 2009, according to the Bureau of Justice Statistics. Corrections costs skyrocketed. States today collectively spend more than $50 billion a year by some estimates.

Studies indicate the United States has the highest proportion of its population locked up, its offenders tending to serve some of the lengthiest sentences in the world.

But more striking are the reports that show recidivism rates, the number of people who, like Church, return to correctional facilities after their release, lawmakers and prison reform activists said. A report published just this year by the Pew Center on the States found that on average more than 40 percent of those released from penitentiaries are reincarcerated within three years, for committing a new crime or for violating the terms of their release.

In the past decade, the debate among criminal justice circles has shifted to focus on programs and resources that can help prisoners re-enter society.

President George W. Bush included prisoner re-entry in his 2004 State of the Union address, marking an end to the country’s “period of punitiveness” and paving the way for the Second Chance Act and other legislation to help prisoners adjust to life after incarceration, [Ann] Jacobs [of the Prisoner ReentryInstitute] said.

“We are at a time in our culture when the prison budgets are depleting budgets for higher education in most states, when there are more African American men in prison then there are in college. We can’t allow that as a society. It will pull us all down,” Jacobs said.

Today, almost every state has re-entry programs and resources to assist the 700,000 people on average who are released from correctional facilities annually, but almost every state is under budget pressures.

Texas is known for its toughness on crime and is the country's leader in rate of imprisonment but undertook wide-ranging prison reforms in 2007 that have significantly reduced the state's recidivism rate.

Only 24.3 percent of Texas inmates released that year returned to prison within three years, according to the Texas Legislative Budget Board.

But looming budget cuts could hinder this progress in giving inmates “the tools to live responsibly,” said Ana Yáñez-Correa, director of the Texas Criminal Justice Coalition.

“While people are in prison, they need to be given vocational programs and counseling and cognitive thinking programming, so that when they get out, they can support their families,” she said.

For inmates like Church, such resources could make a difference in the transition back to the outside world.
Whatever the truth behind Church's motives when he set that fire, such issues are real and faced by more than 70,000 prisoners released from TDCJ facilities every year. Most of those folks, by any measure, don't want to return to prison, but too many will return to a life of crime if they aren't afforded other, realistic options.

Possible false convictions from decades past

A pair of stories out this week raise questions about possible false convictions from 25-40 years ago in which new evidence points to the likely real perpetrators.

From the Austin Statesman, check out Chuck Lindell's latest offering, "Mystery filing could bolster prisoner's innocence," reporting on new evidence submitted to a closed court that may end up erasing the conviction of Michael Morton in Williamson County. Wrote Lindell:
Most of the discussion of the Travis County case took place in a closed hearing at the request of Morton's lawyers, who wanted to review the details in greater depth. A court reporter was present for the half-hour hearing, though Harle said the transcripts would be kept from public view, at least for now.

But piecing together statements the lawyers made in open court, the Travis County case appears to be a 1980s-era murder that includes DNA evidence of a suspect who matches the DNA recently discovered on a key piece of evidence in the Morton case — a blue bandanna found at a construction site near the Mortons' Williamson County home.

When Morton was prosecuted in 1987, tests on the cloth determined that the stains were human blood but could not identify who it came from.

But forensic tests conducted this summer over prosecutors' objections discovered that the bandanna contained Christine Morton's blood and the DNA of an unnamed felon with a lengthy record that included convictions for burglary and assault with the intent to kill. That man, identified from samples taken from felons and maintained on the national Combined DNA Index System, was not in prison or police custody as of last August, according to court proceedings.
The DNA evidence in Morton's case appears to point strongly to actual innocence, but Williamson County prosecutors told the court they want to re-test the evidence. (Good thing they didn't destroy it, which Williamson DA John Bradley has argued would prevent inconvenient post-conviction innocence claims like this one.) But that's not the only potential grounds for Mr. Morton gaining post-conviction relief. Yesterday in court, defense attorneys announced they'd discovered in prosecutors' old files evidence that:
suggests prosecutors hid a key piece of evidence that could have raised questions about Morton's guilt — a transcript of a police interview with Christine Morton's mother. That conversation, taped by police 11 days after the murder, revealed that the Mortons' 3-year-old son said that he saw a "monster" hurting his mother and that his father was not home at the time of the attack.

Defense lawyers didn't learn of the transcript until 2008, when it was provided by the sheriff's office under Texas open records laws.

On Monday, [defense attorney John] Raley said he found a summary of the transcript in the district attorney's files. The information gives Morton a second avenue on appeal — a violation of his constitutional right to view evidence that could cast doubt on his guilt — if his innocence claim bogs down.

Meanwhile, a septuagenarian prisoner has confessed to multiple murders committed decades ago for which at least three other people were convicted. Reported Lise Olsen at the Houston Chronicle:
Edward Harold Bell, admitted sex offender, convicted murderer and self-described serial killer, has given multiple chilling confessions from his locked prison cell of abducting and slaying teenage and adolescent girls in the 1970s, describing crimes even now unsolved.

In disturbing letters sent to Harris and Galveston county prosecutors in 1998 - but kept secret for 13 years - Bell claimed to have killed seven girls, including two Galveston 15-year-olds shot as they stood tied up and half naked in the chilly waters of Turner Bayou, according to excerpts and descriptions of Bell's letters obtained by the Houston Chronicle.
One of the men convicted of crimes Bell now claims he committed, Michael Self, died in prison two years after Bell first began sending his confession letters to prosecutors. Self was:
a League City mechanic, convicted in 1972 for the murder of Sharon Shaw. But his conviction was tainted by corrupt police officers who used Russian roulette to obtain two conflicting confessions and who themselves were later convicted of bank robbery. Self died in prison in 2000. His attorneys say he was never told of Bell's letters.
Self's case reminds me of Timothy Cole, who also died in prison before prosecutors revealed someone else had confessed to the crime for which he was convicted. But corrupt cops obtaining a confession via Russian roulette adds an even darker twist to Self's story.

At least one other case to which Bell confessed also resulted in conviction of others:
Harry Andrew Lanham and an accomplice, Tony Knoppa, were convicted in 1971 in the shooting death of Linda Sutherlin, a 21-year-old Houston woman found dead in Brazoria County. Lanham was awaiting trial for a teen's murder in Montgomery County and was considered a suspect in other cases when he was killed by police in a 1972 escape in Harris County.
No word in the story of what happened to Mr. Knoppa. Cold cases investigators in Galveston had pegged Bell as the likely perpetrator of two other murders in their county, but couldn't nail down enough evidence to bring him to trial.

These cases have a ways to go before courts grant anyone relief based on actual innocence claims, and for those convicted of the crimes Bell claims credit for, two are already dead. But in both these instances, it seems increasingly likely that the wrong people were prosecuted for offenses actually committed by others. As is so often the case, when an innocent person is prosecuted it's a double tragedy: Not only is an injustice done to them, but the guilty person remains free to commit more crimes in the future.

MORE: At the Texas Tribune, Brandi Grissom has identified the 1988 slaying which apparently matched DNA from the Morton case.

Monday, September 26, 2011

Bail bondsmen not hurting for business in Harris County

On Saturday, Grits assessed a report from KHOU in Houston claiming that bail bondsmen could barely make a living because of increased use of personal bonds for felonies, which the TV station said increased 90% over a three year period. Today, reacting to the story, the director of Harris County pretrial services distributed the following data to county stakeholders in response to concerns about that story:
The KHOU figures regarding personal bond releases are not accurate.

Comparing January-August 2010 with the same time period for 2011:
1. Arrests for defendants with felony charges are down 4.2% in 2011 compared to 2010 (24,255 in 2010, 23,229 defendants in 2011)
2. Similarly, the number of defendants with a felony offense receiving a personal bond is down too, but the decrease is greater at  12.3% (439 defendants in 2010, 385 in 2011).  There is a 43% increase in personal bond releases if you compare the same time frames in 2011 with that in 2008.  Then, 270 defendants with a felony offense received a personal bond.  However, the January-August 2009 releases (414) were higher than what we have experienced so far in 2011.
3. Defendants who had a felony offense and who were released on a personal bond in 2011 represent 1.7% of the defendants arrested with a felony arrest, in 2010 that percent was 1.8%.  It was 0.9% in 2008 and 1.5% in 2009.  If you compare the percent of defendants arrested for a felony who got a personal bond, that increase is 88.9% (.9 % increasing to 1.7%).  But that would be a rather disingenuous portrayal of personal bond release activities.
Did you see the Grits article on the KHOU piece? Puts the 90% increase figure in perspective.
Just as Grits suspected, the large percentage increase more reflects how seldom personal bonds have come to be used in recent years as opposed to a significant change in how many are issued. It's one thing to say the number of personal bonds increased 90% from 2008 to 2010, which sounds like a big number. It's quite another to say bonds increased to 1.7% from .9% of all felonies over that period, and actually declined in the year following compared to the high water mark cited in the KHOU statistic.

Bail bondsmen aren't hurting a bit in Houston: They still have tens of thousands of felony defendants who're required to post bonds, even after a minor uptick in defendants released on their own recognizance. No doubt, bail bond companies would prefer that courts never use personal bonds and that every defendant charged with a crime were held in jail unless they post significant bail. But that doesn't mean that's best for the taxpayers or good public safety policy, particularly given the county's jail overcrowding quandary. Reporters would do well to doublecheck or at least provide greater context for stories where their main sources are rent seeking bail bondsmen. It's too easy, as in this case, for self-interest to taint data or misrepresent it in ways that don't reflect what's really going on.

Model policy under development for eyewitness ID procedures

On Friday I was in Huntsville to attend a working group meeting at Sam Houston State University, where academics at the Law Enforcement Management Institute of Texas (LEMIT) are preparing a state-mandated model policy on eyewitness identification procedures. Perhaps 40 people were there, including representatives from law enforcement, prosecutors and a handful of advocates including yours truly (attending on behalf of the Innocence Project of Texas) rounding out the mix.

LEMIT was charged in legislation passed this spring with creating a model policy for dissemination to law enforcement agencies that conduct eyewitness identification procedures. Agencies are not required to adopt what LEMIT comes up with, but in the past, when this same structure was used for creation of racial profiling policies, most agencies adopted the model policy or something pretty close to it.

I won't post their draft since the document hasn't been finalized, but I was pleased to see that the initial version produced by the folks at LEMIT - led by Dr. William Wells - relied closely on best practices and the latest science in the field regarding blind administration, admonitions to witnesses, sequential presentation, and documenting witness reactions. The science underlying the suggested policy is quite well developed at this point, Dr. Wells told the group, and is remarkable for the level of consensus demonstrated on best practices.

Perhaps the most disputed element of the policy was reliance on sequential presentation, but arguments against that method were undercut significantly by a just-released study (the most comprehensive of its kind, described here) which found witnesses choose "fillers" (non-suspects) 12% of the time in sequential lineups and 18% of the time when photos are presented in a group. A robbery detective from Houston opined that the peer-review process on that study hasn't been completed and these were only preliminary findings. But peer review won't change the raw data, and a 50% higher error rate for the group presentations - to this writer, anyway - seems like too big a difference to ignore.

The issue is whether the witness is comparing the photo they're looking at to their own memory or to others in the array. Group presentations, the theory goes, encourage witnesses to pick the subject that looks most like the perpetrator among the available options, instead of comparing each one directly to the image they recall. Human memory is less reliable than courts and juries have often supposed. Research developed over the last three decades or so has demonstrated eyewitness testimony is essentially "trace evidence," and like other trace evidence it may be easily contaminated using shoddy collection techniques.

Some law enforcement folks at the event seemed to be in a state of denial. The police chiefs association argued that the draft LEMIT policy was too detailed, including elements that shouldn't be considered "policy" but fall more in the realm of "procedures." This struck me as downright bizarre, not only because LEMIT was charged with creating a "detailed written policy," but because the statute in at least four different places directed them specifically to write "procedures" for various aspects of live lineups and photo arrays. The distinction being suggested by law enforcement interests would contradict the plain language of the statute (in case anybody cares about such things).

Indeed, hanging their hat in part on this spurious distinction between policies and procedures, a breakout group made up of law enforcement folks declined to come up with specific recommendations during the working group meeting, apparently hoping they could slow-walk the matter and delay the process. But SHSU must soon publish their draft in the Texas Register so they can receive formal public comment and finalize it by a statutory deadline in December. Participants in that subgroup were encouraged to stay after the event to complete their recommendations or to provide them via email in the next couple of weeks.

Court of Criminal Appeals Judge Barbara Hervey spoke up to debunk complaints that blind administration would be too difficult for small agencies to implement, demonstrating the simplicity of the "folder method" of blind administration, where photos are placed in file folders, shuffled, and presented sequentially so that the officer administering the procedure doesn't know which one is the suspect. That method was suggested by LEMIT as an alternative for smaller agencies to a truly blind administrator who's not one of the investigators in the case. In serious cases, though, if an agency is so small it can't provide a blind lineup administrator, they probably should be calling in the Texas Rangers or seeking help from larger agencies.

At the end of the event, a police chief approached your correspondent to provide his own department's newly developed policy and offered a rather odd warning. He opined that, just like with the racial profiling law, some agencies will refuse to create policies and just do whatever they want, predicting that such recalcitrance would cause the statute to be ineffective. By that logic, though, laws against murder, theft and drug taking are ineffective because, despite the statutes, some people still murder, steal, or take drugs. He's probably right some agencies will flout the law or adopt policies that fail to accept the state of modern science on eyewitness IDs. But in an environment where most agencies currently have no policies at all, my sense is that most departments will adopt acceptable policies and most officers will follow them.

Bottom line: This bill wasn't even controversial at the Legislature, so if too many agencies balk at implementing best practices, they risk the Lege returning to the subject and imposing more prescriptive rules in the future, without the discretion afforded in the current statute.

 See related Grits posts:

Sunday, September 25, 2011

Disparities in exoneree compensation based on evolving law

The Texas Tribune this week ran a feature by Brandi Grissom voicing criticisms of differing compensation awards for Texas exonerees depending on when they applied for compensation. The article featured the story of Nax Karage, who:
Nax Karage spent more than six years in prison for the rape and murder of his girlfriend. But in 2005, DNA evidence proved he was innocent, and he was released. The state paid him about $158,000 in compensation.

DNA evidence also helped exonerate Ricardo Rachell. He was freed in 2008 after spending six years in prison on a sexual-assault conviction. Texas paid him about $493,000.

“It’s not right, and it’s unjust,” Karage said. “We all did the same time and went through the same situation.”
Grissom goes on to give an effective recitation of the various permutations of Texas' compensation statute, which grew more generous over the first decade of the 21st century:
Until 2001, compensation was available only to those who had initially pleaded not guilty and who had received a full pardon from the governor. An exonerated prisoner could get up to $25,000 for pain and suffering, and damages were limited to $250,000.

In 2001, lawmakers increased the compensation to $25,000 for each year served, or $500,000 if the inmate served more than 20 years. They also eliminated the provision that required the person to have pleaded not guilty.

Then, in 2007, lawmakers doubled the compensation to $50,000 per year of imprisonment and $100,000 per year on death row, and they eliminated the cap.

News reports about Wiley Fountain surfaced in 2008. Five years after he was cleared of the aggravated sexual assault charge that had put him behind bars for 15 years, Fountain was found homeless and sleeping behind a Dallas liquor store. He had quickly burned through the lump sum of about $388,000 he had been awarded, spending it on lawyers’ fees, taxes and what he reportedly called “living large.”

So in 2009, lawmakers adjusted the compensation law again. Now, Texas prisoners who are exonerated are eligible for up to $80,000 for each year of wrongful confinement. They also receive a monthly annuity that is worth another $80,000 for each year they were in prison. They can request state health insurance and free tuition at public universities. It is the most generous compensation law in the nation.

The 2009 change also made those who had received compensation under the old law eligible for some of the new provisions, including the annuity, the insurance and the education benefits. But the law did not retroactively affect the lump-sum payouts that some former inmates had already received. So inmates who were paid at a rate of $25,000 per year, like Karage, are not eligible to be compensated at the new lump-sum rate of $80,000 per year.
I've met Mr. Karage several times and his story is one of the most compelling on this question. I certainly understand why he feels it's unfair that other exonerees received much more money than him. But as state Sen. Rodney Ellis told the Tribune, “Unfortunately, there has been consistent resistance in the Legislature to make the lump sum-payment aspect of these reforms retroactive.”

Having lobbied for that bill on behalf of the Innocence Project of Texas back in 2009, I can say first-hand that merely getting the annuity applied to past exonerees was a big "get." At the time, at least, there was little if any legislative support for retroactively boosting lump sum payments, in part because, by accepting compensation in the past, those folks had already waived their right to sue. (A big, if usually unstated, reason why compensation was expanded in 2009 was to settle a raft of lawsuits from exonerees who'd filed civil rights claims instead of accepting compensation at past, lower amounts.) Given the political reality on the ground, those advocating for the new law, myself included, judged that getting past exonerees something was better than nothing. I still think that's right, though I wish things had turned out better for Mr. Karage and others similarly situated. The harm done to him was no less than those exonerated several years later, and in a perfect world he'd deserve the same as those released more recently. In a perfect world, of course, all these folks wouldn't have been falsely convicted in the first place.

The Trib story was accompanied by a sidebar with an interactive chart of all exonerees who've received compensation so far, including the amounts of money received and time served - 72 people so far have received more than $42 million in compensation for more than 700 years spent in prison based on false convictions. The bulk of that sum was handed out in the last two of years.

Parole board continues shell game over due process for sex-offender conditions

A federal judge on Tuesday issued yet another bench slapping to the Texas Board of Pardons and Paroles over the BPP's insistence on placing sex-offender conditions on (possibly) thousands of parolees who've never been convicted of a sex crime. Reported Mike Ward at the Austin Statesman:
The latest decision came Tuesday when U.S. District Judge Lee Yeakel of Austin approved an injunction blocking state parole officials from enforcing sex-offender restrictions on a Fort Worth parolee who said he has been threatened with being sent back to prison if he doesn't waive his right to a hearing.

Last week, the Texas Court of Criminal Appeals ordered the restrictions — officially called Condition X — removed from the parole conditions for a Houston kidnapper because he was not afforded a due-process hearing before they were imposed and because he had not been convicted of a sex crime.

The decisions were the latest setback for the Texas Board of Pardons and Paroles and state corrections officials, who have insisted for years that, to ensure public safety, they could impose the stringent conditions on parolees without a due-process hearing .

Although previous court rulings have required the hearings, the state has not routinely offered them. And parole attorneys say the two recent cases indicate the courts are losing patience.
To clarify Ward's assessment, the hearing before Yeakel wasn't exactly about the parolee "waiving" a hearing. Instead, parolee Buddy Yeary sought to be released from Conditions "X" because he was never afforded due process. In response, the parole board ordered Yeary to undergo a sex-offender evaluation including a plethysmograph test - which is a bit of unproven junk science that courts have excluded at trial for its lack of reliability but which is routinely used in post-conviction evaluation and monitoring of (in this case alleged) sex offenders.  Yeary was told was told that if he did not complete the evaluation and plethysmograph by 5 PM on Tuesday, September 6th, that his parole would be revoked. Judge Yeakel wouldn't allow it, though, issuing a temporary restraining order and ultimately removing Yeary's sex-offender conditions.

Via email, I asked one of the attorneys in the case, Bill Habern, what this meant for other, similarly situated parolees, and he responded thusly: "We do not know what impact will attach to this decision as it applies to other non-plaintiff's in the same class. I have yet to see the written order from the court. When it is filed I will forward you a copy. The judge was quite 'expressive' in his comments and concerns over why this issue continues to live on when the parole agencies have long faced the consistent decisions from Coleman, Meza, Graham, Evans, Baker, and the case last week from the CCA. Yeakel suggested the parole agencies apply a little 'common sense' to what these decisions mean in relationship to the other parolees."

Another oddity, says Habern: An "astounding thing that we learned [at the hearing] was that the number of people who had no hearings but were on Coleman supervision dropped from the Board's last number of approximately 7,000 down to about 140. No one knows what seems to have happened to the other 6,860 that Troy Fox testified to during the Graham case. It all makes no sense to either Richard [Gladden] or I." Who knows what the real number is, since both have been sworn to in court and no explanation was provided for the difference.

The drama doesn't end there, however. In response to this increasingly long list of judicial bench slappings, the parole board recently created a new policy (pdf) - which has not yet been reported in the MSM - aiming to apply "Condition X" prior to release on parole instead of after release. Wrote Habern, the parole board is:
sending notice to such offenders informing them they have been approved by the parole board for parole subject to their agreeing to enter sex offender treatment while in TDCJ and thus waiving their Coleman rights to due process. If they do not agree,. then their parole approval will be re-considered by the Board. ... We are hearing that the offenders are being coerced into signing these waivers in order that at least they get out of prison even if on sex offender parole, and even though they end up on sex offender supervision and are denied all due process from the point of signing the attached documents forward.
The parole board now asks inmates so situated - prior to being granted parole - to waive the due process rights Yeakel and Judge Sam Sparks have said should be afforded before Condition X is applied, including access to counsel, and a hearing, with the right to examine and cross examine witnesses.  Habern notes that "With the backup in the prison sex program of up to 10 months plus, and in some cases with an 18 month program, it means you may have a document that says you are to be paroled - maybe -  in 28 months in some cases."

Habern adds that the new waiver form violates inmates' 5th Amendment rights against self incrimination, telling potential parolees "that if they admit to other crimes for which they have not been charged,  those admissions will be passed on to prosecutors (the inmates have no lawyers at the time of these evaluations), and instead of a hearing, as required by Coleman, Meza and Evans, they will be given 30 days to respond in writing as to why they should not be placed in sex offender supervision. This skips right over many of the elements of due process the law requires," said the veteran parole attorney.

So the Board of Pardons and Parole is essentially playing a shell game, attempting to hide the pea (a due process hearing required under the Coleman case) amidst an ever-dizzying array of changing policies and procedures.

Habern points to court precedents relying on the Coleman decision from other parts of the country that indicate due process should be required before labeling prisoners a sex offender whether or not they've been released yet on parole. In Pennsylvania last year, the US 3rd Circuit Court of Appeals ruled in Renchenski v. Williams (pdf) - based explicitly on the 5th Circuit analysis in Coleman - that “prisoners who have not been convicted of a sex offense have a liberty interest created by the Due Process Clause in freedom from sex offender classification and conditions,” whether they are in prison or have already been paroled. (The plaintiff Renchenski in that case is serving a sentence of life without parole.)

Though Renchenski carries no precedential value in Texas, the 3rd Circuit case was appealed to the US Supreme Court, which denied cert. So SCOTUS saw nothing wrong with the 3rd court's interpretation of  5th Circuit's pronouncements on liberty interests related to sex-offender conditions. It would be surprising if the federal judges  who've been slapping around the Texas parole board choose to ignore that interpretation and allow this new procedure to stand.

All this posturing and hair splitting by the parole board serves just one purpose: To avoid admitting a mistake and complying with repeated findings in state and federal court that due process is required before assigning parolees sex-offender conditions when they haven't been convicted of a sex offense.

The solution is as simple as it is unlikely to be implemented by the parole board without an explicit court order: The parole board should hold hearings before assigning sex-offender conditions to parolees and remove those conditions in cases where hearings weren't held. The longer they wait to do this, the more likely they are to be held liable in pending civil rights litigation over the subject. At this point the board seems to be willfully thumbing its nose at federal courts, and as a general rule that approach doesn't end well.

See related Grits posts:

Saturday, September 24, 2011

Cry me a river: Weaning time for Harris County bail bondsmen

Bail bonding agencies and bounty hunters are in the midst of a business downturn in Harris County, and the reasons could stem from efforts to ease overcrowding at the Harris County Jail.

“No one’s getting paid and no money is coming in,” said Randy Kubosh, of Kubosh Bail Bonds in Houston.

Kubosh said the phones at his Lubbock Street office have nearly stopped ringing in recent months and he blames a spike in the issuance of personal recognizance, or PR bonds, for killing a lot of business.
This is not only no cause for concern, it's actually evidence at least some Harris County judges are finally taking seriously their share of responsibility for overcrowding at the Harris County Jail. The development reverses a long-term trend of reduced access to personal bonds for defendants. From 1994-2004, according to a consultant hired by the county to analyze the process, the number of misdemeanor defendants who were ordered to pay bail instead of being released on "personal bond" increased more than 30,000%. (Not a typo: That's thirty thousand percent!) Personal bonds for felony defendants declined over the same period by more than 94%.

The consultant in 2005 criticized, "the existence of [a] large block of apparently low risk defendants in detention ... who pose no significant risk of nonappearance or of danger to public safety [but] remain in pretrial detention because of inability to post bond." In that context, it's welcome news that, "According to figures obtained by KHOU, the number of PR bonds given to felony offenders has significantly increased in Harris County, climbing by nearly 90 percent over the last three years."

That figure surprises me, but I'd want to see the underlying data before making too much of that statistic. The reality is, because the rate of personal bonds granted had plummeted so low, there's a lot of room for increasing that number. Let's say for simplicity's sake (not the actual numbers) that in 1994, 1,000 felons were given personal bonds. If as the consultant found, that number reduced by 94% over the next decade, it would mean 60 felons got personal bonds in 2004. So starting from that low number, increasing the number of personal bonds by 90% would mean just 114 felons received personal bonds - still far lower than in the past. A 90% increase AFTER a 94% reduction doesn't remotely get you back to where you started. In that context, the figure wouldn't be such a shock.

Still, just a few years ago, officials said it would require expanding jail capacity to solve the Harris Jail's overcrowding problem, but if this trend continues it should relieve pressure on the jail. According to the latest jail population report (pdf) from the Texas Commission on Jail Standards, as of Sept 1 Harris County incarcerated 8,843 inmates in the county jail, with a total capacity of 10,162. Another 769 inmates were housed elsewhere (in other counties or in a private prison in Louisiana).

That said, it's clear not all judges are doing what they can to reduce jail overcrowding, particularly as it regards sentencing low-level drug offenders with less-than-a-gram possession cases. In 2003, Texas changed the law to mandate such offenders receive probation on the first offense instead of incarcerating them in TDCJ state jails. But judges in Harris County - uniquely among Texas counties - began sentencing those offenders to serve up to six months in the county jail as a "condition" of probation, creating extra pressure on the jail population. Those sentenced thusly have reduced somewhat, but as of Sept. 1 around 6.5% of inmates incarcerated in the Harris County Jail were probationers serving such sentences, or 576 inmates (down from nearly a thousand just a few years ago). By comparison, here are the numbers for other large Texas counties on state jail felons sentenced to county jail as a probation condition:
Dallas: 70
Travis: 44
Tarrant: 77
Bexar: 0
El Paso: 40
Simply ending this one practice would free up enough beds to allow Harris to stop paying other counties to house their inmates. Without having seen court-by-court-data, I'd guess the reduction stems from some judges having discontinued the practice (or being replaced at the ballot box), but clearly some Harris judges still rely more heavily on this sentencing tactic than other jurisdictions.

In any event, don't weep for Harris County bail bondsmen, who've profited immensely over the years as judges subsidized their business by requiring bonds for low-risk offenders, filling up the jail with folks who in other counties would be released on personal bonds.  For bail bondsmen, as with cattle, "Weaning time is a very traumatic experience." But that doesn't mean the day won't come when it's time to join the rest of the planet in detaching their lips from the public teat, even if, as with a persistent calf, it requires a swift kick or two before they finally get the message.

Wednesday, September 21, 2011

More risk than reward from Austin PD compiling list of open wifi connections

UPDATE (9/22): I fowarded this post to Austin Police Chief Art Acevedo and, after a brief back and forth via email, this morning he writes to say the department has canceled today's planned "Operation Wardrive." Wrote Acevedo, "I nixed it already, good intentions to educate, but not best for public perception. A very enthusiastic group of folks trying to combat cyber crime came up with the idea without flying it up the flag pole. Please let folks know that there are people that can and will use unsecured home networks for unsavory and illegal activity."

Thanks, Chief, for accepting feedback and acting on it instead of reacting defensively, and for doing so in a timely manner. Perhaps next time the DART unit should run their plans "up the flag pole" before launching dicey mass surveillance schemes without probable cause, if only to save the embarrassment of having to backtrack after announcing plans to the media.

Certainly readers should check to make sure the default password has been changed on their routers and be sure to use a firewall, especially when using open networks outside the home. But average folks needn't be frightened into closing off access to your home wifi by Chicken Little-style scare tactics. As computer security expert Bruce Schneier has written, running an open wifi connection is "basic politeness. Providing internet access to guests is kind of like providing heat and electricity, or a hot cup of tea." Common courtesy should never trigger a police investigation, even under the pretense of a public education project.
Original post: The Austin PD is undertaking a bizarre scheme called "Operation Wardrive" to "find open wireless internet connections in the city." Reported KVUE-TV, "The APD Digital Analysis Response Team, or DART, will hold "Operation Wardrive" Thursday, Sept. 22.  DART unit members will make contact with residents who have open wireless connections and teach them the importance of securing them."

According to KVUE, "APD says wireless devices will be used to find the open networks. They say most manufacturers of wireless routers ship their devices with the wireless network unsecured by default, which leaves people at risk. They warn that internet users who  fail to secure their network are at risk of someone else using it or hacking into personal information."

This strikes me as a very strange task for police to undertake. Asks one of my techie friends, "Has Austin run out of crime? Do APD officers patrol neighborhoods checking for open windows and doors? (Actually using your neighbor's wifi is more like reading by their porch light.)"

This is less about protection of the public and more about using law enforcement as corporate welfare to enforce terms-of-service agreements with wireless internet providers. But APD is not a party to the contract with my ISP and I fail to understand why it's any of their business if my wifi connection is open or not. Want to educate folks that they need to change the password on their routers? Fine. Purchase advertising. But don't go creating a master list of open wifi connections and start hassling customers who've done nothing wrong.

Which brings us to a big unintended consequence from this ill-considered scheme. Because this activity is not (remotely) part of an actual criminal investigation, the list of open wifi connections APD generates as well as all associated data will be a public record under the Texas Public Information Act. Simply compiling that list - which will be available to anyone as soon as somebody files an open records request and posts the results online - makes the types of malicious activities APD is concerned about more likely, not less. Bad idea.

Even if this is a well-intentioned effort and not just water carrying for the ISPs, I don't think our friends at Austin PD have fully thought this tactic through.

MORE: From EFF-Austin, where advocates published a detailed open records request filed today with APD about "Operation Wardrive."

Bexar court used bureaucratic ruse to keep suicide off jail stats

While preparing a post the other day on staffing at the Bexar County Jail, I ran across a brief story from the SA Express-News about a jail inmate who hung himself in a detoxification cell at the jail in June. "Adrian Rodriguez, 31, was pronounced dead at University Hospital  on Saturday. He had been found hanging in a detoxification cell at the jail Thursday, the Bexar County medical examiner's office said. He died of complications of a hanging; his death was ruled a suicide."

Notably, the Bexar County Jail has been criticized for having far more inmates commit suicide than national averages, and for failing to adequately screen inmates for suicide risks. In this case, "A screening at the City Magistrate's office and again at the jail, where [Rodriguez] saw a psychologist, found 'no indication that he was suicidal,'" A consultant hired last year to analyze jail suicides found that the jail exhibited "an unexplained tolerance for potentially suicidal behavior."

What drew my attention, though, was the bureaucratic sleight of hand used to keep from counting this event in the jail's overall suicide tally. Reported the Express News, "While in the hospital, he was given a personal recognizance bond Friday, so 'he was technically not in custody,' said Adan Munoz, executive director of Texas Commission on Jail Standards. 'We are going to follow up, if there's anything there, but it's not being handled as an in-custody death.'" So they found the guy hanging in his cell, he died from injuries sustained in the hanging, but it's not officially an "in-custody death." Really?

The inmate had been arrested on a robbery charge and had " a lengthy criminal record," according to the paper, so it's pretty clear the personal recognizance bond was merely a ruse to keep another suicide from going on the jail's record. Jailers can't issue personal bonds on their own, though: They'd have needed the cooperation of the District Attorney's office and a local judge to push the bond through, and they'd need to do so in an extraordinarily expedited fashion to get it done between the time the inmate was found hanging in his cell and when he was declared deceased.

One wonders how many other jail suicides have been whitewashed off the books in Bexar County in this fashion?