Thursday, August 30, 2012

Harris probation director resigns in wake of urinalysis errors that put innocents in jail

An outrageous scandal has engulfed the Harris County probation department and forced the ouster of its director.

Harris County probation director Paul Becker tendered his resignation, reported the Houston Chronicle ("Harris County's probation director resigns," August 29) in the wake of a hearing which concluded with State District Judge Denise Collins issuing a moratorium on using urinalysis results from the probation department in her court and calling for Becker and his three deputies to resign.

Moreover, "On Tuesday, the Harris County District Attorney's Office joined the judge in refusing to use any of the division's drug test results in the 36 other criminal courts until further notice because they have questions about the reliability." (Regular readers may recall that the Bexar County DA had to do the same thing back in 2009 when similar allegations arose there.)

KPRC-TV (Aug. 28) summed up the core allegation thusly: "The fallout comes after days of testimony showing a long list of problems, errors and mix-ups in the way the county's probation department tests probationers for illegal drugs. In some cases, positive drug tests were linked to the wrong people. Local 2 Investigates reported last week that at least one probationer went to jail in part because of an erroneous drug test result."

Further, "Probation department leaders admitted they never told prosecutors or even judges about the problems, even when they knew probationers with erroneous tests went to jail."

Judges now say they would have stopped requiring urinalysis in every case if they'd been told the probation department was overhelmed, reported KTRK-TV, though hindsight is always 20/20:
Judge Michael McSpadden says he wishes the Probation Department had told judges they were overwhelmed with the testing

"When you're overwhelmed, what you do is go to the judges is say don't make the requirements in every single case, we are overwhelmed. We never heard that," Judge McSpadden said.

Even with Tuesday's moratorium, the biggest problem for Judge Collins is that there is no way to tell how many probationers were wrongly sent to jail.

"And I don't think we have any idea, and we never will, how many people have been impacted by this. There's no way to measure it," said Judge Collins.
In truth, Grits doubts most Harris County judges would have stopped requiring urinalysis in every case without this kind of scandal to force their hand. Back in 2005, Grits reported based on a consultant's evaluation that Harris County had been told that "Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system." The consultant, Justice Management Institute, specifically recommended that "The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered," but that never happened. So judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem. That's not Mr. Becker's fault.

In some ways I feel sorry for Becker, who was in a damned if you do, damned if you don't situation. Probation departments are underfunded, relying mainly on probationer fees and a relatively small stipend from the state. Plus, in Harris they've been asked to provide urinalysis and supervision not just for people on probation but often for defendants out on bail pretrial. The system has grown so large and unwieldy that, to me, these types of errors are regrettable but unsurprising, not that that does wrongly jailed defendants any good. Mr. Becker may have fallen on his sword, but by no means are he and his staff the only ones to blame.

This episode also reminds us that people who've spent decades in prison on false rape or murder convictions before being freed by DNA aren't the only or even the most common category of innocent defendants jailed based on false accusations. These more workaday, low-level cases have just as much room for mistakes, but are also much more easily swept under the rug. Most defendants are indigent and can't afford to mount the type of full-court press that resulted in Judge Collins' findings this week. It's a great mitzvah that attorney Lisa Andrews did so on behalf of her client, but if defense attorneys in Harris County had been aggressively confronting false forensic evidence against their clients on an ongoing basis, maybe the problems would have been identified and rectified long ago.

RELATED: "Houston probationers did jail time based on faulty drug tests." SEE ALSO: Coverage from the ABA Journal, and a blog post from Paul Kennedy at The Defense Rests titled "Judge calls for heads in drug test fiasco." A Houston radio station quoted an attorney predicting civil litigation from wrongly incarcerated defendants.

AND MORE: The Houston Chronicle's Lisa Falkenberg has an interview with attorney Lisa Andrews.

33 comments:

Force Majeure said...

Unfortunately, Judges--those paragons of wisdom--don't often make decisions that are superior to anyone else's. So I am agreeing with your assertion that "had the judges been informed" their rulings would not necessarily have ameliorated the situation.

Gritsforbreakfast said...

And of course, they WERE informed, by the 2005 consultant's report. They just chose to ignore the findings until now.

Anonymous said...

So true about defense attorneys. Also consider that you seldom, if ever hear a defense attorney arguing "unreasonable conditions of probation." The standard procedure is to tell you client, "if you don't sign this and agree to pay you will go to prison." "Which would you rather have?" Yes, your honor, Yes I can make the $100,000 per month to cover the 300 different types of courts costs ordered by OCA.

Anonymous said...

I was there in 2004, 2005 and know for a fact that this overuse of urinalysis by the judges was brought to their attention by the director at the time. These judges are notorious for acting tough despite the lack of justification for across the board drug testing. There may need to be a new director, but there needs to be a new vision of what community corrections should be. PS They also knew that they (judges) were overusing the jail, community service programs that did not work etc all to look tough. Got to demand leadership at some point and put the re election fever away.

Anonymous said...

Can't believe Grits went a whole post without blaming prosecutors for this debacle. On the other hand, I'm sure given enough time he can figure out a way.:-)

Gritsforbreakfast said...

8:36, that's easy: Who do you think is requesting that judges tack on urinalysis as a probation/bail condition in all these cases? The judges aren't doing it sua sponte. ;)

Anonymous said...

The front end of the criminal justice system sets the conditions of probation including mandatory drug testing. Probation is not involved in this process until they get the Order from the Court whereby probation must monitor compliance with each condition and report violations to the Court. When the "front end" of the system orders mandatory drug testing by just checking a box next to the condition making drug testing mandatory, probation is required to enforce that condition and report violations back to the Court. The catch-22 here arises when drug testing conditions become common place on most Orders and probation becomes bogged down in trying to keep up with the volume. If Becker directs his department to get in compliance with the drug testing conditions, he is damned if there are errors or mix-ups; if he goes to the Judges and informs them that the probation department cannot comply with these conditions, he is also damned as it implies he cannot manage his department effectively. If the Courts were informed in 2005 that there was a problem in this area, action should have been initiated then.

Becker's situation is akin to a bug dangling in a spider web (not of his making) and now that Judges are not immune from being personnaly sued if they have knowledge of potential harm to defendants in their jurisdiction, they have now come to feed.

Prison Doc said...

It's more reaping the harvest of a totally dysfunctional system, from the police all the way up through prisons and parole.

"Tuff on Crime" means that it is easy to pile up more and more "easy" stipulations on probationers-but as in this case if something screws up, then the unintentional offender gets his probation violated

Gritsforbreakfast said...

"and now that Judges are not immune from being personnaly sued"

Since when, 9:12? They have absolute immunity as far as I know. I agree with the rest of what you wrote, and with Prison Doc.

Anonymous said...

It is sad to see one of the probation fields true leaders leave the field in this manner. Mr. Becker has done more to bring Harris County probation into positive light than the previous several directors for certain. His contributions to the state as far as knowledge and leadership have been invaluable and I am very sad to see him leave.

Anonymous said...

Actually, Grits, the requirement that probationers submit to drug and alcohol testing is not something that prosecutors request or ask the judge to "tack on" as you put it. It's actually one of the "Basic Conditions of Community Supervision" codified by the TEXAS LEGISLATURE at Art. 42.12, Sec. 11 of the Texas Code of Criminal Procedure. Nice try though.

Gritsforbreakfast said...

How 'bout as a bail condition, 11:34, is that statutory, too, or just tacked on?

Anonymous said...

Bail conditions vary from county to county, Grits, since they are not governed by statute. However, in my experience the conditional bail forms typically track the standard terms and conditions of probation. Unless it's an extraordinary case (i.e., a major crime or a sex offense) the DA's offense typically has very little involvement in the terms of a conditional bond.

Gritsforbreakfast said...

I just checked the statute on community supervision, 12:50. I should have known since you didn't put your name on your comments that you were misrepresenting what the statute said.

In fact drug testing is not mandated as a probation condition. It is one of a long string of conditions a judge "may include."

Nice try, though. :)

Anonymous said...

And exactly how many judges in the State of Texas do you think don't routinely include all the basic conditions of community supervision on all of their probation judgments? Seriously? The first requirement is don't violate the law again. Do you think that when a judge is about to impose the probation conditions he or she sits on the bench and ponders "Hmm...do I want to require this probationer not to commit any new crimes while on probation?" Really, Grits. Call one of your defense attorney buddies and ask them if they've ever seen any judge not require a probationer to submit to random drug and alcohol tests.

Gritsforbreakfast said...

And look where it got them in Harris County, 1:26. They failed to exercise discretion and it bit them in the ass. They were warned about it in 2005 and kept doing it. "Everybody does it" is an excuse, not a reason.

Anonymous said...

I hate to bust your bubble, 1:26, but it happens all the time. Judges do not always order defendants to take urinalysis and sometimes they don't order them not to drink. They cross out standardized conditions all the time.

Grits- please don't hate on the anonymous posters, some of us can't say whatever they want and get away with it, unfortunately.
That comment was just plain ignorant and not the kind of thing I expect from your column.

Also, when a judge orders something, they do not want to hear that it can't be done. They don't want to hear anything but "Yes, Judge". It's a bit naive to say that the decision bit Harris County in the ass, when they did not have much of a decision to make. I guess he could have resigned back in 2006, but thats about the only choice he had.
You know this too well Grits.

Gritsforbreakfast said...

1:46, I'm saying it was the JUDGES decision to ignore the consultant's advice that bit them in the ass, not Becker's. As you say, he could only follow orders. The volume is not his fault.

Judges were told in 2005 they needed to prioritize who to require UAs from, but they kept assigning them to nearly everybody. That's the proximate cause of the too-high caseload, and when Judge McSpadden says they'd have required fewer UAs if they'd only known, I don't believe him. The judges did know, and they kept doing it until crisis engulfed them.

Anonymous said...

Glad you fact-checked the code, Grits. I was just about to cut and paste it in there to set what's his face straight.

Go easy on the anonymous masses, though.

Rage

Gritsforbreakfast said...

You're right, Rage. I get frustrated when anons knowingly misrepresent facts, which is what what's-his-face was doing. Some people think "anonymous" is a synonym for "unaccountable," and after eight years of blogging, I've little tolerance for trolls. But I recognize that's not everybody, which is of course why I still allow anonymous comments in the first place.

Anonymous said...

Yo 1:26

Who actually drafts the Conditions of probation AND by the way 90% plus cases are plea bargained. Do you mean to tell me that DA's don't determine what goes into the conditions through the plea bargaining process? Surely you are joking.

Anonymous said...

Mr Becker has been and is a staunch advocated for effective probation.
A very tough jurisdiction to successfully effectuate probation with clarity. It will be tough to find a replacement as capable.

I do find it ironic that the County that the State has both funded and formed correctional policy around, happens to be the worst at practicing good correctional policy.
Another post had requested grits provide a list of jurisdictions that revoke offenders for low level violations like dirty UAs... Here is a big one.

Anonymous said...

The Legislature is coming up, will there be a any testimony or dragging of Harris County before the big court of public opinion Austin?

Anonymous said...

I'm here in Bexar in the aftermath of the UA problem here in 2008. Same problems here. Less problems but still problems.

Anonymous said...

Curious, what happens now to the "innocents" who are now wrongfully jailed?

Interested Troller

RSO wife said...

Somebody want to tell me why urinalysis is mandatory for probationers whose crime had ABSOLUTELY NOTHING to do with drugs or alcohol. AND they are required to attend AA meetings and get a paper signed saying that they have been there. If they fail to do that, they could get their probation revoked as well.

Gritsforbreakfast said...

11:40, according the the new interview with Lisa Andrews (link appended at the end of the post), "with the department's rudimentary record-keeping system, there's really no audit trail, 'no way to go back and figure out who was wronged and who was not.'"

Anonymous said...

Noticed a posting that said Bexar County had UA problems in 2008. How likely is it that this is a problem in other jurisdictions?

Thomas R. Griffith said...

Hey Grits, there is a way to; identify, locate & exonerate 'all' of the falsely arrested & subsequently wrongfully convicted, but that would require everyone to refuse to Cherry Pick for Post Justice. Everyone knew & knows that since these cases are void of DNA & Closed / Inactive, they'll not qualify for post conviction assistance consideration or be appealable. But in reality, piss & plasma are loaded with DNA.

In this case of (MJM) mass judicial misconduct, you simply generate a list of humans that plea bargained during the years in question having ‘Indictments’ with the words; Possession of a Controlled Substance, DUI, DWI, Probationer or Parolee accompanying the plea bargain document. Thanks.
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Yo, 4:19 PM, thank you for injecting the plea bargain and probation dilemma. Can't believe no one else was able to put the two together and contribute the overwhelming rate of TappingOut to the overwhelming rate of conditions that made someone a lot of money. And YES, take it from me or just ask jigmeister the “King of Nolo Contendere”, H.C. ADAs' conduct business (Plea Bargaining) in the judges' chambers where they suggest conditions (listed as CC Closed Court by court reporters on the Dockets’, but documented as Open Court on nolo contendere papers’ where they cross out Not Guilty).
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Hey Texas PO, where are you? When you catch this, consider enlightening us about the Myths and Truths regarding the excuse train & your profession. Surely a real life sized PO knows who's full of it and who's the blame for over utilizing the piss test to generate funds that broke the machine of the one and only Vendor vs. spreading the piss around Texas. Q. Did you know that H.C. Judges (McSpadden included) allow ADAs' & the Defense to initiate felony jury trials knowing in advance that the trial will be stopped in order to plea bargain with 'all' probationers? Telling them that they are going to prison Guilty or Not, due to being on probation at time of arrests. If you are clueless about your profession and exactly how your case load is generated and doubt this, just ask your 'Cases' why they plea bargained & if they’ll take a polygraph to determine if they were dirty or not? Can’t wait.

A Texas PO said...

Thomas, to answer your question, my answer is "No." I didn't know that because I'm not a Harris County PO and I've never dealt with any of the judges from there. I'm not exactly sure why you feel this need to lambast me with these questions. After all, I answered your questions on the other thread and you didn't respond. Besides, I've never posted anything on these threads that would give any sane person the illusion that I think the probation system is perfect. In reality, I've actually advocated for ways to make the Texas probation system work smarter, more efficiently, and operate in ways that ensure that actual justice is served, rights are not violated, and that the people who come through our doors actually leave us better off than they were when they came to us. We're not 100% successful, but I do my best to provide the direction and skills to my probationers to help them stay out of the system. I know you have the biased attitude towards all POs and will probably call me "full of shit" again, but I really don't care.

You seem to have this idea that I don't know how people get on probation and that probation chooses who gets placed with us and we force plea bargains down their throats. Are you sure you know which machine you're raging against? We are only involved after the plea is made. We get the court order, signed by the defendant, and enforce the conditions in it. And believe it or not, many of us will seek to modify conditions (e.g. waive programs, lessen restrictions, reduce or waive fees, etc) if the probationer needs those things done. Everything you direct towards me has to do with prosecutors, defense attorneys, and judges. Maybe you ought to redirect your rage towards them.

Back on point with this post, I'm sad to hear that a good director has had to take the fall for something that supervisors seem to have had the opportunity to address and that the judges apparently knew about. I can only wish Mr. Becker the best of luck.

Anonymous said...

Maybe you ought to redirect your rage towards them.

Hey. I object to being treated like a material possession.

Unless you look good in a skirt and can afford my vices, anyway.

Rage

Anonymous said...

Probation is underfunded and over utilized period.

I doubt seriously a Judge would want to hear from a probation director the probation department is overwhelmed.

Thomas R. Griffith said...

Texas PO, now that you know you can tell others. Regarding your entire wierd non - reply that followed. Take it easy re-read and then re-reply or don't, cuz I really don't care.

BTW, re-reading will enlighten Texas PO that no one said he / she was full of shit, instead asking that he / she consider clarifying for us exactly who was full of it relating to the "Myths and Truths regarding the excuse train & your profession"? Doh!

BTW, you said this - "I know you have the biased attitude towards all POs and will probably call me "full of shit" again, but I really don't care."

I say WTF? One of my closest buds is a real Texas PO & three of my family members are real Texas POs'. Doh!

BTW, you were considered the go to guy / girl for anything PO related in Texas (which is why I was looking for your professional input regarding the issue of over utilization). Notice I’m not asking why you decided to ramble on and ignore simple questions and rage against rage & something not posted.

BTW, You replied to this - ..."If you are clueless about your profession and exactly how your case load is generated and doubt this, just ask your 'Cases' why they plea bargained & if they’ll take a polygraph to determine if they were dirty or not? Can’t wait."

With this - "You seem to have this idea that I don't know how people get on probation and that probation chooses who gets placed with us and we force plea bargains down their throats. Are you sure you know which machine you're raging against?" Doh!

In closing, no matter how weird your non - reply was, I look forward to future logical input on all GFB Posts’ regarding Probation & Parole topics. I say this only because you say you advocated for positive reforms and had you ‘not’ included this, I’d be forced to rage against 2% Milk. Sorry Rage, it had to be said.
Thanks.