Hecho en Mexico

Hilarious, in an ironic sort of way: The Google Ad that pops up next to this Grits post suggesting a "green" immigration agenda, a reader emails to remark, points to a website encouraging US business to outsource jobs to Mexico, touting 75% reductions in labor costs.

Mexico Manufacturing

Try manufacturing in Mexico & save up to 75% or more on labor costs!
www.madeinmexicoinc.com

Advertise on this site

That's one reason why it makes a lot of sense to suggest a "Tex-Mex Marshall Plan," as referenced earlier; the economy is like a river - it's a lot easier to steer it in the direction it's already headed. A Marshall-plan-style investment in Mexico coupled with a "green" trade agenda like that described in the above-linked post would do more to reduce illegal immigration in the medium to long run than any new raft of criminal statutes or wall-building boondoggle.

Talking Snitches in Atlanta

As promised, here's a guest post from Rev. Alan Bean of Tulia Friends of Justice describing an invitation only gathering of activists in Atlanta, GA sponsored by the ACLU discussing snitching abuses by law enforcement. Pictured at left is forum participant Alexandra Natapoff, a law professor at Loyola (CA) who is perhaps my favorite legal thinker on the subject.

The ACLU’s Drug Law Reform Project called their Atlanta roundtable event, “Undercover, Unreliable and Unaddressed: Reconsidering the Use of Informants in Drug Law Enforcement.” The invitation-only gathering was a kind of testing-the-waters experiment bringing together a representative sample of academics, media people, grassroots organizers, Hip Hop artists, and people who have been personally violated by dishonest informants.

“Law is just one piece of the puzzle,” Loyola law professor Alexandra Natapoff told us, “what needs to be changed is social tolerance for unfair practices.”

This statement was reinforced by Anjuli Verma’s insightful report on a series of focus groups conducted in Texas earlier this year by a high-profile research organization. If the broad cross section of people questioned in this small study is anything to go by (and I suspect it is) Mainstream America isn’t too worried about the criminal justice system in general or the abuse of informant “snitch” testimony in particular. It is generally assumed that appropriate checks and balances are in play and that most “snitches” are small fish used to catch big fish.

None of this is true, of course. In the drug war, most informants are relatively big fish ratting on their small fish associates, girl friends and family members. Ed Burns, an ex-cop and school teacher who now produces HBO’s inner city drama The Wire, remarked that “there are very strict rules about using informants and they are broken 99% of the time.” Dr. Natapoff cited a report by the California ACLU suggesting that most police departments in the Golden State have no policies to violate.

My impressions of the Atlanta gathering were primarily shaped by a one-hour break out session in which ten Type-A Alpha males told each other what it was all about. While our soft spoken moderator, Graham Boyd, tried to steer us back to the informant issue, we insisted on talking about what I call “the prison problem”.

Jack Cole, Executive Director of Law Enforcement Against Prohibition, laid out the familiar but shocking facts. Most Western democracies have incarceration rates in the 100-200 per 100,000 people range. In America , by contrast, 717 of every 100,000 white males are currently behind bars—and that’s just the white guys. At the depths of Apartheid hell in South Africa , 851 black males were incarcerated. In America , 4,919 black males per 100,000 are currently behind bars.

The question was why?

Black participants wanted to talk about “white supremacy” and “white hegemony”. Marc Lamont Hill, professor of Urban Education and American Studies at Temple University with a machine-gun, rat-a-tat speaking style, put it bluntly: “I don’t want to assume that the law could be anything but malevolent [toward black defendants] given the influence of white supremacy. All the spaces that were open at one time are being controlled. In the hood, there are police officers on every single corner.”

Jack Cole, a retired police officer, blamed it on drug prohibition: “We spend so much money on the war on drugs, we don’t have any money to help people.”

The Wire producer Ed Burns acknowledged the relevance of racism and the drug war but was inclined to blame mass incarceration on the loss of manufacturing jobs. “When the jobs disappear, the drugs come,” he said. “We are doing all of this because there are no jobs.”

In other words, the Atlanta gathering brought together bold, well-informed people with strong opinions. That’s what it was designed to do, and the differences in perspective were as invigorating as they were enlightening. However, as the DLRP’s focus groups and Bill Cosby’s well-publicized rants suggest, there is a wide slice of black America (the people who have benefited the most from the Civil Rights Movement) who currently have no particular problem with the drug war, mandatory minimum sentences or the abuse of informant testimony. These people are concerned about the mass incarceration of black males, but there is a tendency to shrug and say, “You the crime, you do the time.”

If reformers want to change the minds and hearts of Middle America we need black reformers to frame and deliver the message to a black, middle class audience. If we can’t convince Bill Cosby and Oprah Winfrey we don’t have a prayer with the white mainstream.

As I suggested in my PowerPoint presentation, we need to discover and publicize an avalanche of Tulia-style criminal justice horror stories. The recent exoneration of Ann Colomb and her three sons after they had been convicted on the basis of perjured inmate informant testimony is a story still waiting to be told. Financing a massive and coordinated story-telling coalition (supposing we can find the resolve to work together) will require millions of dollars in funding—and that will mean converting a long list of high profile people to our reform gospel.

There was a widespread consensus at the Atlanta gathering that we need to change the national narrative—a daunting task, to be sure. As Ed Burns put it, “When you’re going up against mythology you’re swatting smoke. Where does the responsibility for changing all of this begin?”

And we are going up against mythology; in particular, the well-entrenched myth that efforts to help poor people create nothing but dependency and a false sense of entitlement. It is widely believed that locking up the poor, the drug addicted, the mentally ill and the ignorant will somehow teach them a lesson. And even if there is no deterrent effect, mainstream America believes that mass incarceration makes the streets safer.

As professor Natapoff suggests, the America mainstream tolerates unfair practices so long as they are believed to enhance public safety. Until we can change that impression we will get nowhere.

The Atlanta gathering probably raised more questions than it answered—but that was what it was designed to do. A follow-up gathering is needed—and soon. This time I would like to hear Alexandra Natapoff, Ed Burns and at least one black representative from the Civil Rights and Hip Hop generations lay out their visions for the way ahead in hour-long presentations followed by vigorous small group discussions. As Dr. Natapoff told us in Atlanta , “This is just the beginning of the debate.”

- Alan Bean

TDCJ's pigs to get air conditioning but not prisoners

Grits noticed this short item about a vendor with whom the Texas Department of Criminal Justice has contracted to build six "swine buildings" for around $750K. Given ongoing litigation about excessive heat in un-air conditioned Texas prison units, this tidbit stuck out at me:

"Our ‘turnkey solution’ is ideal for environments where the site must be closely controlled for security reasons," he continues. "Our modular AG buildings are completely climate controlled, easy to clean and sanitize, and include the most advanced swine equipment including boar isolation, gestation, farrowing, nursery, finishing, feed study and show pigs -www.artsway-scientific.com/ag-buildings/hog-care.” - See more at: http://www.porknetwork.com/pork-news/Arts-Way-to-build-six-swine-buildings-for-Texas-Criminal-Justice-219775081.html#sthash.is4jqIxj.dpuf

"Our ‘turnkey solution’ is ideal for environments where the site must be closely controlled for security reasons," [Dan Palmer, President of Art’s Way Scientific] continues. "Our modular AG buildings are completely climate controlled, easy to clean and sanitize, and include the most advanced swine equipment including boar isolation, gestation, farrowing, nursery, finishing, feed study and show pigs - www.artsway-scientific.com/ag-buildings/hog-care.”

So TDCJ's hogs get a "climate controlled" environment but the prisoners and correctional officers, not so much. Go figure.

Enhancments, drug court funding and probation highlight Senate Criminal Justice agenda

Unnecessary and counterproductive penalty enhancements dominate Tuesday's Texas Senate Criminal Justice Committee hearing, but a good bill on drug courts and one on probation supported by most of the committee could salvage the day's session, for me anyway. Here are Grits' weekly high and lowlights from bills on the agenda.

Free Shaquanda Cotton, Incarcerate a Hundred More
First up on the agenda is Sen. Deuell's SB 109, a timely enhancement given last week's media frenzy surrounding the Shaquanda Cotton case (this has been a hot-button topic as evidenced by the comments, especially, at two prior Grits posts). Deuell's bill would enhance Class A misdemeanor assault charges to a 3rd degree felony when the assault is committed against a school employee.

Cotton's case ably illustrates why this enhancement is a bad idea. For starters, the bill seems unnecessary. The prosecutor in Paris found a way to charge Shaquanda with felony assault (2nd degree, according to press accounts) for pushing a teacher's aide - I don't know the details of her indictment, but Cotton's case is evidence that prosecutors can already indict assaults in schools as felonies if they choose to. That makes the bill unnecessary on its face.

Even more to the point, the state released Ms. Cotton yesterday, and will likely release hundreds more student offenders over the next few months. TYC is overcrowded and understaffed, and youth sent there are increasingly likely to be physically or even sexually abused, while overincarceration makes the working environment for staff unsafe. So why, with all that going on, would Sen. Deuell want to enhance penalties for misdemeanor assaults that will mostly apply to kids in school? If they're convicted, that's just more kids who committed low-level offenses going to TYC where we're already having to let kids out.

Not only can the offense already be charged as a felony, Cotton's case shows that it might actually be an injustice make the offense level so high. SB 109 should be rejected, and the Criminal Justice committee should focus on helping juvenile offenders instead of falling back on grandstanding enhancements.

Estes aims to break up families of drug addicts
Sen. Craig Estes' SB 183 would increase penalties (again - we just did this in 2005) for meth manufacturers who commit their crimes in the presence of children. It creates mandatory minimums of 15 years for said offense at a time when Texas prisons are overcrowded and the Legislature is seeking ways to reduce incarceration for nonviolent offenders.

Meth manufacturing in Texas has declined since the state restricted pseudoephedrine sales - now most meth sold in this state comes up I-35 from so-called "superlabs" in Mexico. But most people who engage in home-made meth making are low-level addicts, not hardened criminals. Drug treatment for meth users is effective where it's been tried, and I don't see how incarcerating parents with no treatment is a better policy than mandating treatment and giving training and services to improve their parenting.

No fiscal note is available yet, but this bill will have a huge cost, and not just for incarcerating the meth addict - imprisoning parents for the long haul means you'll also have to pay for their children who wind up in foster care, and ultimately for some of those kids to be incarcerated, too - kids of incarcerated parents are 6-8 times more likely than their peers to commit future crimes. Given that, and the fact that addicted parents recive no treatment while inside, and this legislation arguably would make the meth problem worse instead of better.

Burglary of a vehicle ... blech, again!
Sen. Whitmire's version of the enhancement for burglary of a vehicle, SB 807, makes its appearance Tuesday. I discussed this bill at length when the House version was up, and refer readers to those comments.

Spend asset forfeiture income on drug courts
Whitmire's SB 1780 is a welcome first step toward an idea I think should be more broadly implemented - it requires 10% of drug asset forfeiture income generated by counties to be used to finance drug courts. This is a two-fer: Drug courts need funding and perverse incentives surrounding asset forfeiture need reform. IMO, the bill could go further on both counts, but it's certainly a good first step.

Under current law, asset forfeiture income may "be used only for the official purposes of the attorney representing the state or for law enforcement purposes." That gives police and DAs and incentive to pursue asset forfeiture cases disproportionately because they're the only type of prosecution that actually generates profit for their offices. In Denton County, income-hungry prosecutors allegedly traded lenient sentences for defendants' agreements not to contest civil asset forfeiture claims.

Current asset forfeiture laws create perverse incentives. First advertised as taking money from kingpins, they are now used even in routine possession cases because law enforcement has come to rely on the income. I've long believed asset forfeiture income should not go to the police or prosecuting agency, but to some neutral budget run by someone else so there's not even a perception of a profit motive. Justice may have become a business for many, but profit should never appear to be its purpose.

Expand probation and treatment for drug offenders
SB 1909's authors and co-authors include most of the Criminal Justice Committee, which one would think bodes well for its passage. It's authored by Ellis, Carona and Deuell, and coauthored by Hinojosa and Whitmire. The bill would require probation for certain low-level 3rd degree felony drug offenders (mostly possession cases involving 1-4 grams) when the judge finds the defendant is not a public danger. That makes it essentially similar to what HB 2668 by Allen did for state jail felony possession offenders in 2003 - sending small-time possesion cases to probation and treatment on the front end.

I'll be interested to see the fiscal note for this bill because I suspect it should save the state a significant amount. In conjunction with Whitmire and Madden's probation-strengthening measures in other legislation, this bill makes a lot of sense, preserving incarceration for more dangerous folks and giving addicts a second chance to turn their lives around.

Monday's Law Enforcement Agenda: Four 'bad bills that need a good killing'

Looking ahead to Monday's Texas House Law Enforcement Committee hearing, I saw four bills on the agenda worth highlighting.

In my recent site survey, a reader suggested that I identify more "bad bills than need a good killing." All four of these bills, IMO, fall into that category. Let's run through them:

Sobriety checkpoints
I've never understood the push for sobriety checkpoints. They have sort of a "Can I see your papers, comrade?" feel to them that to me just seems anti-American. (In El Paso the Sheriff improperly used what were essentially roving checkpoints for immigration enforcement as part of Operation Linebacker and had to shut down the operation.)

From a legal perspective the Supreme Court has ruled them acceptable in narrow instances, but unacceptable in others - here's a link to the Wikipedia entry on the topic, and perhaps someone in the comments can explain better than I when a police stop is a "detention" and when they're allowed to do it anyway in pursuit of broader public safety goals.

But to me that's an important but secondary concern to the fact that, as a law enforcement tactic, it's the most ineffective possible use of traffic enforcement personnel - one that generates a high profile for the agency with the public and the media, but low results per resources expended.

Stopping hundreds of people on the off chance you'll stop a handful of drunks is simply a mindless, scattershot approach. If half as many officers were busy rigorously patroling the bar district, it would make a bigger difference.

According to Wikipedia, "the National Highway Traffic Safety Administration, after extensive field studies, concluded that 'the number of DWI arrests made by the roving patrol program was nearly three times the average number of DWI arrests made by the checkpoint programs.'" [2] That makes sense when you think about it - you're more likely to find a drunk pulling over traffic violators than just pulling over everybody randomly.

Anyway, whatever their constitutionality or effectiveness, MADD and other anti-DWI groups have made them their benchmark for being "tuff" on drunks, so Rep. Todd Smith and a host of cosponsors have joined to present HB 253, whose language tries to navigate the narrow framework allowed by Supreme Court rulings. I'm not a lawyer, so others must judge whether the bill succeeds on that score. But if it's a more ineffective tactic, not to mention constitutionally questionable depending on how it's implemented, I don't think the Lege should do it on those grounds alone.

Leap, Don't Look, Then Leap Again
What happens to kids seized from their parents convicted of meth use? Right now nobody knows.

In 2005 the Texas Lege passed what I considered an ill-advised bill restricting pseudoephedrine sales that included provisions for taking children away from anyone found manufacturing meth near a child. HB 946 by Miller would expand the range of people whose children would be seized to anyone "possessed" or in any way introduced meth into the body of any other person.

You might think it'd be a good thing to know how many kids have been or would be affected by this policy before passing such a bill, but as far as I can tell no one seems to care. The House Law Enforcement Committee studied the effects of the 2005 legislation during the interim, but as I wrote in December, the committee:

failed to focus at all in its report on the most important aspect of this bill: What happened to the children seized as a result of this new law? Were they later returned to their parents? Did they enter the foster care system? Since HB 164 provided no new or specialized resources for these chidren, do we know whether they received counseling and support needed by a child traumatized by removal from their family? None of these questions are discussed in the report - we don't even know how many children were seized under the new law - 10, 50, 100, 500, quien sabe?

[I wrote then,] Did anybody see 60 Minutes' segment on foster children who were taken away from their parents last night? Here's the video. What happens psychologically to children under such circumstances really can't be understood unless you've witnessed it. These kids are psychically brutalized then basically thrown away. And the Law Enforcement Committee's report reflects that - nobody even looked to see what happened to them.

So now, Rep. Miller comes forward with a bill that will likely dramatically increase the number of kids seized from meth using parents. Really? How many will there be? What services will they need? How much will it cost? We don't know; in its interim report the Law Enforcement Committee didn't even know how many kids were seized under the law as it's already written.

Can the system handle them all? No telling. Certainly since they aren't tracked there are no targeted services for these youth, which is a missed long-term crime prevention opportunity. Children of incarcerated parents are estimated to be 6-8 times more likely than their peers to follow their parent's footsteps into prison as an adult.

There's no fiscal note posted on this yet, but Texas arrests a lot of meth users. I'd be surprised if we're not talking about seizing a pretty large cadre of kids in the scheme of things. The Committee should look before it leaps on this bill. Since they know from their own report they don't have information about the kids already seized under this law, they need to look after those kids' wellbeing before significantly expanding their numbers. Given what's going on with TYC, it'd be better to find out what's going on with them first, I'd think.

Subsidizing Alarm Companies, For What?
I'm no fan of burglar alarm companies like ADT and others that purport to notify the police to protect your family from home invaders, etc. Basically these are huge, taxpayer subsidized boondoggles with little public safety purpose - in some cities more than 99% of calls are false alarms, and even those that aren't false don't catch anybody by the time police arrive. If you're looking for security, buy a dog. It's more effective at scaring away crooks and at least you'll have someone to console you after your stuff is stolen.

Home alarms in particular are an enormous waste of police time, and in some jurisdictions are the most common type of police call. Some cities have responded to the problem by requiring "verified response" from alarm companies (i.e., the company must verify a crime was committed before the police come). That puts the cost and onus on the company that's making the profit, instead of having taxpayers eat the primary security cost while private companies make money off the public service. However, Rep. Buddy West's HB 1906 would require municipalities to hold a full-blown plebicscite before making such a decision! My first thought: Uh ... isn't that what we elect city councils for?

The Burglar and Fire Alarm Association was a significant contributor to Chairman Driver in the 2006 election cycle, but I hope that won't sway him or others to hamstring cities trying to maximize the public safety impact of police spending. There probably isn't a single other reform that would immediately put more new officers' boots on the ground, or at least divert them from useless endeavors to useful ones. From a public policy perspective, I'd rather see the Lege requiring verified response rather than try to get in its way.

Keep thorough records about officer terminations
The issue over what records should be kept and shared with other agencies when an officer is terminated has been a hot one over the last several sessions, largely because of one man - Tom Coleman, the so-called "gypsy cop" who'd been fired from multiple law enforcement agencies before landing in Tulia, Texas for what turned out to be his final policing gig.

Records at the state licensing agency, the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE), hadn't given supervisors who hired Coleman a clear picture of trangressions at his previous employer, so after much brouhaha, last session Chairman Driver and Sen. Kel Seliger (whose district includes Tulia) passed legislation to require departments to record with TCLEOSE the reasons an officer was terminated.

Now Driver would delete that requirement, as well as change the definition of when an officer is "dishonorably discharged." Under current law, the term dishonorable discharge "applies only to an officer whose employment was terminated for a violation of law or department policy or for other substantiated misconduct." Chairman Driver's bill would narrow that definition to say that

"Dishonorably discharged" means:
(A) the officer retired or resigned in lieu of termination for a criminal offense;
(B) the officer was terminated for a criminal offense after charges were filed;
(C) the officer was terminated for a criminal offense;
(D) the officer retired or resigned in lieu of termination for an administrative violation of truthfulness or insubordination; or
(E) the officer was terminated for an administrative violation of truthfulness or insubordination

So under this new terminology, the only adminstrative violations that would merit the label "dishonorable discharge" are for "truthfulness or insubordination," whereas previously the term applied to any "substantial misconduct." I see no good reason to change the definition except to allow officers fired for good cause to find new employment without their bosses' knowing about their past. Who benefits from that? Only bad cops whose misconduct is allowed to continue until they're arrested and prosecuted.

This is Chairman Driver's second bill reducing accountability at TCLEOSE, which in my opinion is an agency whose power should be bolstered and emboldened, not further diminished. One wonders whether it will require some TYC-type scandal for the Legislature to re-energize this toothless watchdog.

Snitching here, there and yon

Grits wanted to point out a few notable items from out of state related to snitching, or the use of criminal informants by law enforcement:

First, in California the Legislature has passed a bill to require corroboration for jailhouse informants over the strident objection of the CA District Attorneys Association, reports the Los Angeles Times. Gov. Brown signed the legislation Monday. Notably, in 2009 the Innocence Project of Texas asked state Sen. Juan "Chuy" Hinojosa to carry similar legislation in Texas requiring corroboration for jailhouse snitches - a bill passed unanimously that year in both chambers and signed into law by Governor Perry. But fewer recall that back in 2001, Hinojosa (then a House member) passed legislation requiring corroboration for informants in drug stings. And of course, accomplice testimony has required corroboration for years, and language from the accomplice witness rule was used to craft both Texas' jailhouse and drug snitch statutes.

Such half-measures, though, don't resolve all the problems surrounding police-informant culture, since of course informants are used throughout the justice system, not just in jails or drug stings. Last year Sasha Natapoff - perhaps the nation's leading expert on the subject - wrote that "The key to informant unreliability is not whether the informant is involved in drugs or in jail, but whether he expects a benefit and therefore has a motivation to lie. Nebraska takes the right approach in this regard by defining 'informant' to include 'any criminal suspect, whether or not he is detained or incarcerated, who received a deal, promise, inducement or benefit.' Neb. Rev. Stat. 29-1929. In defining informant broadly, the Nebraska legislature reasoned that 'there is a compelling state interest in providing safeguards against the admission of testimony the reliability of which may be or has been compromised through improper inducements.'"

The subject of criminal informants is receiving increased national scrutiny from researchers. Natapoff wrote the other day that it's "rare to get [as] much data about informant practices" as is contained in an extensive recent report on the subject from ACLU-New Jersey. She has also recently recommended a report out of Mississippi on informant related abuses, as well as a study from "NYU Law School's Center for Human Rights and Global Justice titled "Targeted and Entrapped: Manufacturing the 'Homegrown Threat' in the United States." The latter document "examines three recent high profile domestic terrorism cases, in all of which informants played a central role, and argues that the use of compensated informants is creating the perception of a threat in U.S. Muslim communities where none may have existed before."

Finally, check out an review by Gary Marx of Natapoff's excellent book: Snitching: Criminal Informants and the Erosion of American Justice. Marx believes that "not only should criminal justice practitioners and students be required to read it, they should be tested on it." For my money, the same goes for legislators sitting on any criminal-justice related committee.

MORE: A helpful reader from Florida points out this remarkable case from the Sunshine State involving police misconduct allegations related to informants. According to the South Florida Times:

According to several sources, the officers are accused  of forcing a man at gunpoint to arrange a drug buy from two other men. They then allegedly took the man outside city limits into Oakland Park, where the drug deal was scheduled to take place at a hotel. In the police report, they referred to the man as a ‘confidential informant’ and allegedly fabricated the circumstances surrounding the arrests of the other two men.

The officers could face armed kidnapping, theft, perjury and other charges, according to sources.

'Did US law spur Mexican meth sales?'

Well, of course it did!

The title of this post is the headline to a Christian Science Monitor story (11/22) describing an outcome that was not only predictable but, at the time, predicted, at least on this blog. The article opens:

The goal was to curb production of methamphetamine by cutting off key ingredients. It worked: Domestic production of methamphetamine fell. But a blow to meth labs in the United States became, in turn, a boon to a group in Mexico.

La Familia started manufacturing meth a few years earlier in the western state of Michoacán. By 2006, the group had emerged as a major distributor.

No one claims that the emergence of La Familia was the direct result of the US law. But US production of meth has decreased dramatically since 2004, according to the National Drug Intelligence Center's National Methamphetamine Threat Asses­sment of 2008.

A global report from the United Nations Office on Drugs and Crime from 2008 also shows a 92 percent decline in the number of large-capacity labs in the US from 2001 to 2007. But in the same period, methamphetamine seized along the Mexican border dramatically increased. (There was a significant dip again in 2007, but seizure numbers are still higher than they were in 2001.)

Experts say that the expansion of meth networks operated by Mexican organizations is a major factor in the sustained meth supplies in the US today, even with new import restrictions on chemicals in Mexico.

Some are not surprised.

Count me among those unsurprised to learn that the gang La Familia Michoacana rose to power on a lucrative wave of meth smuggling thanks to restrictions on pseudoephedrine in the US market. Rather than focus on treating addicts, for some reason US policymakers thought it was a better idea to force them to buy their meth from gangsters instead of making it at home. Homemade meth was bad news, but rural meth cooks weren't beheading police officers or gunning down children as is happening now in Mexico. Sometimes better the devil you know.

I've been beating the drum about this unintended but painfully obvious outcome on this blog for years. Por ejemplo:

• Texas' anti-meth law shifted production to Mexico; prevention and treatment underfunded
• Redefining drug war success
• Stop digging: US policies enriching Mexican drug cartels
• Are we winning the war on sniffles?
• Mexican meth: 'I'm afraid what we did was create a monster'
• More on the war on sniffles
  
• War on sniffles worsens public safety
  
• Pseudoephedrine restrictions raise fears of 'more addiction, more overdoses and more violence'
  
• Oklahoma meth law not working
  
• Tradeoffs: Mexican cartels boost meth involvement
  
• Oklahoma meth law overhyped
  

Peeking at Washington through a seemingly permanent face-palm

This blog attempts to the extent possible to stick to Texas state criminal justice politics, but sometimes national issues and politics intervene. So allow me to share a few perhaps relevant thoughts Grits had today on some of the new policies and pronouncements emanating out of Washington.

Asset forfeiture and reading criminal-justice tea leaves
In the wake of President Trump's interjection into Texas asset forfeiture politics (see Grits coverage here and here), the Star-Telegram has a good article describing how the president's condemnation ironically energized proponents of the push rather than stymied it. “Bill Miller, an Austin consultant and lobbyist, said the Trump episode transformed civil asset forfeitures into a suddenly hot topic. 'It didn’t have any visibility until Trump sort of called it out,' Miller said. 'Now it sort of went from zero to 100 miles an hour.'” See also Maurice Chammah's Marshall Project story, in which some of our Right on Crime friends were quoted rebutting the President on conservative grounds.

An oddity about this story: When one delves into the details of Donald Trump's comments on asset forfeiture, as this column by Reason's Jacob Sullum illuminated, it turns out he doesn't really understand what it is or what's being criticized. The episode sowed concern even among conservative commentators, including the observation that, even if one believes he were joking, "It does nothing for public trust of either the president or law enforcement to be seen cavalierly laughing it up about abuses of power."

Adding to a sense that criminal justice policy is not particularly a presidential priority in an era when crime is low, Trump's three new executive orders on criminal justice invoked more sound and fury, but signified next to nothing. Compared to other executive orders like on immigration, these were complete snoozers.

OTOH, as Grits suggested last year, Trump's SCOTUS nominee will probably be better than Merrick Garland  on criminal-justice topics (a low bar), just as Scalia was before him. Go figure.

Meanwhile, former Dallas Police Chief David Brown was among law enforcement officials this week proposing a more evidence-based crime reduction initiative to the President. No word what the President thought of it, but the agenda stands in stark contrast to Trump's discussion with Sheriffs earlier in the week.

Like much else throughout the Administration's early days, signals on criminal justice probably have created more confusion and chaos than clarity. It's easy to say what positions the President has taken, but next to impossible to discern what policies he'll pursue.

Where are defenders of Texas' economy?
Normally Grits focuses on criminal-justice topics, but this morning I've got a little time on my hands and find myself pondering questions of Trumpian policies and the Texas economy. Though Texans voted overwhelmingly for the president in November, his stated agenda amounts to a direct attack on Texas' economic vitality.

For example, it's fine to talk about mass deportations and ICE raids on the campaign trail. But in the real world, illegal immigrants make up a whopping nine percent (9%) of Texas' work force. That's one in eleven workers. In some industries, like agriculture, construction, landscaping, and domestic work, the proportion is much higher. Of course, calls for mass deportations are impractical and real-world outcomes will never match such rhetoric. But even doing it piecemeal by deporting people arrested for traffic tickets, or who commit some other minor offense, will create big and small shocks throughout the economy. That's in addition to disrupting families and diverting and perverting law enforcement priorities toward policing a population which commits few crimes. Bottom line, we've already seen this movie: the Obama Administration's experience shows this tactic will do scarce little to reduce criminal activity. So there's not a great upside considering the economic damage which could be done.

Second, the idea that so many Texas Republicans backed a man who would repeal NAFTA and replace it with protectionist tariffs has struck Grits from the get-go as foolish and detrimental to Texas' economy. It's hard to overstate NAFTA's benefit to Texas. Mexico built a superhighway system connecting both their exporters and Pacific ports to Texas' transportation systems at the border. The expansion of the Panama Canal ramped up activity at Texas ports. Thousands of manufacturing plants pump out product in the maquiladora districts along the border. Texans make a lot of money this way.

Tariffs would hack away at profits for hundreds of American/Texas companies and, all of this economic activity will slow if Trump slaps on a 20 percent import tax. Best case, Texans pay more for the same goods and services; worst case, that happens, plus hundreds of businesses close and many thousands of Texans lose their jobs.

Then there's our energy sector. With fracking already underwater because of low oil prices, the Trump Administration arrives with pro-coal agenda that amounts to a direct attack on natural gas produced in Texas. The only way to make the coal industry viable again is to subsidize it to such an extent that it can start to compete with natural gas. Such subsidies will harm Texas' already-reeling energy sector, but somehow Texas Trump supporters seem not to notice or care.

If Trump does all of these things in the near term, the outcome could rival the long, deep recession of the late 80s, when an oil bust and the collapse of the savings and loan industry devastated Texas' economy.

In my youth, one often heard it said that "all politics is local." But Texas' politicians, for reasons Grits cannot quite understand, appear uninterested in championing the state's economy, deferring instead to a New York billionaire's vision of the national interest at the expense of their constituents' pocketbooks.

For now, when all this remains speculative, I suppose Texas pols can get away with ignoring their constituents' economic interests. But in the medium term - certainly before the 2018 elections - one would be surprised if industries harmed most by Trumpian policies aren't looking for elected officials to provide their complaints a voice. Hell, I'm surprised it hasn't already happened.

RELATED: From a guest column at the Dallas News, "Worse than threatening a state senator is Trump's support for police taking people's stuff."

If you don't have probable cause just fabricate it, say drug enforcers and some TX prosecutors

UPDATE: TDCAA has removed this comment string from their site, probably because they realized the story was getting wide coverage in the blogosphere (this item has received >20,000 page views since I posted it this weekend, largely thanks to links from blogs Fark.com, Buzzflash, and Overlawyered), so the link to the DA forum no longer takes you to relevant string. But I cut and pasted the quotes included in this post verbatim, so you can still get a sense of their discussion even though they'd prefer we all pretend it never existed.

Speaking of informants, on the Texas prosecutors' user forum a self-identified DEA agent named Bill sought to justify a traffic stop where drugs were found using probable cause agents had overtly fabricated. They didn't want to admit in court they were acting an a possibly unreliable informant, so took the liberty of manufacturing probable cause for a traffic stop by stealing the front license plate from the car the suspect was driving. Here's his story:

I have a federal prosecutor who has some questions with this. Maybe some DA's can shed some light. The federal AUSA [Assistant US Attorney] just has some legal concerns, he is trying to do the right thing and is working with us. In any event, here it is:

An informant gets called to run a load of dope. Fine. He provides the load vehicle, which is driven away to the stash house by a criminal load driver. Prior to the load driver picking up the car, law enforcement removes the front plate, on purpose, so that marked patrol units, working with narcotics task force, will have PC to stop the car. Narcotics task force supervisors and police patrol supervisors discuss this gameplan and everyone agrees it will be fine.

Load gets loaded. Vehicle gets stopped, upon observation by Texas peace officers who witness first hand that the vehicle is in violation of traffic law, with no front plate. Drugs are in plain view thru the glass, and driver consents to search. Drugs seized. Driver arrested. Case expanded on. Everyone high-fives each other.

AUSA feels that the fact that law enforcement "created" the PC, that some issues may come up down the road, such as at discovery. AUSA is also concerned that he may have to "reveal" that this PC was pre-orchestrated to the defense and that an informant was really involved.

We explain the concept of "wall-off" and how PC did legally exist to make the stop, created by us or not.

(As an aside, UC agents use deception and dupery all the time to buy dope. Is the PC for those arrests "bad" because of such tactics?....etc etc)

Can someone share their insight and quote some case law so that I may talk my AUSA? Any "interdiction" experts or similar is helpful also.

quote:

---

502.404. OPERATION OF VEHICLE WITHOUT LICENSE PLATE OR REGISTRATION INSIGNIA. (a) A person commits an offense if the person operates on a public highway during a registration period a passenger car or commercial motor vehicle that does not display two license plates, at the front and rear of the vehicle, that have been:.......

---

The code states "does not display" it does not say "if removed by law enforcement, this section is not in force" etc etc language

Again, the AUSA is a good guy but might benefit from some additional info from the field on this.

By the way, we could be 100% wrong on this too...

any info is appreciated however

Keep in mind, according to this passage, not just the DEA but an unnamed narcotics task force and also local police "discuss[ed] this gameplan and everyone agree[d] it will be fine." In other words, this kind of skullduggery, to those officers and their agencies, anyway, is just business as usual.

To their credit, several prosecutors said it did not pass the smell test. One ADA declared "The ONLY reason why they stopped the vehicle was because it was TAMPERED with by law enforcement officers! All that dope is fruit of the poisonous tree and you will be lucky if the prep doesn't turn around and sue you guys for violating his civil rights!!"

But I was astonished to see others suggest the scenario was okay, including an ADA from LaGrange who declared:

I don't see a problem with taking the plate off. Law enforcement will often hand the defendant the drugs and then arrest him for possession. The question is did the defendant operate the vehicle without the front license plate.

Damn! Just take off the license plate off then pull him over for not having it? Or more astonishing, hand them dope and then arrest them for possession? No, no entrapment there, huh? A regular commenter, Jimbeaux, suggested, "Why don't you just cut the brake lines and arrest him when he goes through a stop sign?" No kidding!

Here's my question: Why isn't the officer charged with theft of the license plate? No one suggested such a thing on the prosecutors string, but you have to wonder. And why would it be worth police engaging in all this mendacity to keep their informant from being scrutinized in court? Maybe because the informant is more culpable than his handlers are letting on. My guess: there's a lot more backstory to this informant's involvement than meets the eye.

MORE: See an excellent followup post on this subject from the blog Simple Justice, and more discussion from the blog Defending People. Also see the discussion string at Fark.com.

RELATED: See recent Grits coverage of a Congressional subcommittee hearing on problems with confidential informants:

• Texas' top narc to tell Congress about snitching
• Congress should restrict criminal informant use to prevent wrongful convictions, police corruption
• DPS Commander O'Burke: Changing outcome measures improved Texas drug enforcement

An 'I Really Really Like You Crime'?

In new TV cop show Life on Mars, the main character (played by Jason O'Mara) is a modern-day officer who inexplicably time travels back to 1973 where he finds himself working in the NYPD homicide unit. In the most recent episode, while investigating the killing of a veteran back from Vietnam who turned out to be gay, the time traveling cop declared to his boss, played by Harvey Keitel, "See, I told you it was a hate crime."

Obviously unfamiliar with the term that wouldn't be coined until years later, Keitel's character brilliantly replied, "As opposed to an 'I really really like you crime'?"

I couldn't help but recall that scene upon reading press coverage about a murder last month in Paris, Texas where a black man was allegedly run over and dragged to death by two white guys in a pickup truck, an incident that's being compared in the press to the infamous dragging death of James Byrd in Jasper. The victim's mother called it a "hate crime" and the Dallas News' coverage even included a sidebar documenting historic lynchings in Paris and northeast Texas going back to the 19th Century.

But how does the "hate crime" label jibe with the fact that the victim and his alleged killers were actually friends and close associates? Reported the Dallas News:

Mr. McClelland [the victim] was last seen alive drinking with Mr. Finley and Mr. Crostley, both 27.

The men were thought to be friends. Mr. McClelland was convicted of perjury for lying on Mr. Finley's behalf in a manslaughter case. Mr. Finley went to prison from 2004 to 2007 for shooting a friend in a Paris park; Mr. McClelland was sentenced to a two-year term.

After midnight on Sept. 16, the suspects told police, the men ran out of beer and drove to Oklahoma for more. On the way back, they said, there was an argument over whether Mr. McClelland was too drunk to drive, and he got out of Mr. Finley's pickup, taking a couple of beers with him.

They said that was the last they saw of him.

But investigators found human blood on the undercarriage of Mr. Finley's truck, according to an affidavit filed Sept. 24, and witnesses quoted Mr. Finley and Mr. Crostley as saying that they ran over Mr. McClelland on purpose and dragged him "about 40 feet."

For Ms. Cherry and others in the community, that sounds like what happened a decade ago to Mr. Byrd.

There are differences, however: Mr. Byrd was tied to a pickup and dragged for three miles, while Mr. McClelland was struck and dragged underneath the truck for several feet. Also, two of the three men convicted of killing Mr. Byrd had ties to white supremacist groups and prison gangs. Prison officials say there are no such connections to the suspects in this case, despite rumors to the contrary.

I find it hard to imagine the assailants had some ulterior racist motive when the black victim in question actually committed perjury in a previous manslaughter case to protect one of his killers. Clearly these men were close associates if the victim had lied in court to protect one of them and they were still drinking buddies after he'd done prison time over it. There must be some other, more mundane motive that explains what happened.

I'm not defending McClelland's killers one bit; if the accused men did it, they deserve harsh punishment (the victim's mother told the News she opposes the death penalty and would like to see them get Life Without Parole). I just hate to see activists and the media ginning up racial animosities when the facts don't warrant it. Every murder is an unfathomable tragedy for those involved, but not every white on black murder is a "lynching."

There are plenty of real examples of racism in the world, and especially the justice system, without the media manufacturing alleged racial motives every time there's a mixed-race crime.

BLOGVERSATION: More from Dallas South Blog, which gives background from a Chicago Tribune story on the episode where the victim in this case provided a false alibi for one of his alleged killers. Alan Bean at the Friends of Justice blog agrees with the hate crime meme.

No 'male sexual perpetrators' identified involving FLDS kids in SCOT case

Here's an interesting line quoted in the Salt Lake Tribune from the CPS' pleading to the Supreme Court regarding FLDS mothers:

"Failure to grant a stay will mean that approximately one hundred twenty-four children will be returned to alleged mothers without any male sexual perpetrators being identified," state attorneys wrote.

I take that as an admission that, for the children whose mothers were covered by the Third Court's ruling, the state has not yet identified a single "male sexual perpetrator" despite six weeks of investigation. How then, is this anything more than an expensive and ham-handed fishing expedition?

I've repeated this ad nauseum, but it's worth pointing out again the four reasons CPS is allowed to seize someone's children in Texas:

1. an immediate danger to the physical health or safety of the child
2. the child has been the victim of sexual abuse
3. the parent or person who has possession of the child is currently using a controlled substance
4. the parent or person who has possession of the child has permitted the child to remain on premises used for the manufacture of methamphetamine

So if no one alleges FLDS members engaged in meth manufacturing or drug use, the children were physically healthy and well cared for, and weeks of investigation have identified no "male sexual perpetrators," how can CPS justify keeping these kids, exactly?

See The Common Room for much more news on the Great Eldorado Polygamist Roundup.

San Angelo checkpoint cites mostly economic crimes

DWI checkpoints are supposedly banned in Texas (or at least the legislation which would supposedly authorize them failed to pass in 2009) so I'm not sure how the Sheriff in San Angelo can justify checkpoints for insurance and drivers licenses - "Show me your papers, Comrade!" From the San Angelo Standard Times (Oct. 28):

More than one of every six vehicles stopped in a two-hour checkpoint in San Angelo on Wednesday morning received a citation, the San Angelo Police Department said.

The police, Tom Green County Sheriff’s deputies and San Angelo City Marshals conducted the checkpoint from 8:15 a.m. to 10:20 a.m. in the 300 block of East Avenue L, stopping 585 vehicles, said Lt, David Howard, a San Angelo police spokesman.

Citations included 50 tickets for no insurance, 28 for driver’s license violations, 24 for other violations such as expired or missing registration or inspection, and two warnings.

One driver was arrested on a misdemeanor marijuana possession charge, Howard said.

Consider: What does it say about the state of overcriminalization on the roadways that when you stop every car on the road, one in six are breaking the law? These are mostly economic crimes. It's a crime to fail to pay a private company for insurance. Many of those with driver's license violations likely lost their licenses thanks to onerous Driver Responsibility surcharges. And of course inspection and registration are both government-mandated fees (with inspection often including the cost of getting this or that defect on the car fixed before it will pass muster).

So you stop a bunch of people who already couldn't pay for insurance, surcharges, registration fees, vehicle repairs, etc., and lard on an added criminal penalty they likely also can't pay. That makes no sense from any perspective but revenue generation. It's no wonder they cited one in six drivers stopped, when you think about it. Employing these kind of tactics makes it less likely they can pay all the fees and penalties they already owe, manufacturing ever-more violators and building the pool for additional citations down the line like sort of a grotesque perpetual-motion machine.

Maybe the problem isn't all the lawbreakers but that there are too many damn laws and too much reliance on the criminal justice system to bleed drivers (read: taxpayers and voters) with citations and fines over economic crimes.

Full prisons boosting parole rates for nonviolent offenders

Now that Texas prisons are overflowing, we're going to see a lot more articles like this one in the Paris News over the next couple of years: "Inmates' early release worries prosecutors," Dec. 9. Reports Bill Hankins:

A new and serious issue relating to justice is developing across the state of Texas, and local district and county attorneys are being caught up in the state’s drive to clear prison beds.

To do so, parole officials are under pressure to release some convicted people early to have space for more violent offenders.

“Clearly, this is a money issue,” said Lamar District and County Attorney Gary Young. “The state has to find a way to pay for these folks to be housed in prisons. But justice is not being served when someone does eight years of a life sentence.”

Young was referring to a Lamar County case in which Clifton Blackshear was sentenced in 1999 to life in prison for the manufacture of a controlled substance.

He was released earlier this year and is back in Lamar County.

In another Lamar County case, Timothy Brett Taylor received a three-year sentence and began serving his time in April of this year.

Parole officials already have announced his release. He is back in Lamar County.

“We are back to where we were in the late eighties and early nineties,” Young said. “Prisons are full again and the parole system is working to free up beds.”

“It is sad when defendants are getting their first parole consideration when they are still in our county jail awaiting transfer to the actual prison,” Young said .

That has happened in some Lamar County cases in which an inmate received his parole while still in Lamar County Jail.

“There are people who know how to work the system that are agreeing to go to prison for what appears to be decent five or six-year sentences who know they will be out in less than a year,” Young said . “Many of them would rather do that than be on probation for two or three years.”

Assistant County Attor-ney Bill Harris said he was amazed at the defendant’s reaction in a recent burglary of a habitation case.

“I was prepared to offer him a lengthy probation, no jail time, but he told me he just wanted a sentence,” Harris said. “He knows that on non-violent offenses, inmates are doing about a month and a half for each year of their sentence. He knows he is going to be out of prison in less than a year, so why would he want to be on probation six or seven years, when he can go to prison and get it over with in just months.”

The article spins this story in a very narrow fashion, and exhibits many assumptions common to MSM crime coverage that I find misleading if not outright fallacious. From a systems perspective, though, the cases described don't surprise me at all. Texas simply cannot sustain the rate of incarceration growth our state has experienced over the last thirty years.

As I've argued ad nauseum, what's really happening here is that pure pragmatism is forcing the parole board to make decisions that the state Legislature does not have the courage to impose: Shortening sentences for nonviolent offenders to free up prison space for more dangerous folks. The fellow whose life sentence turned out to run 8 years was imprisoned for drug manufacturing (probably meth). If you had to make the choice whether to house a drug addict for life or a rapist, who would you choose?

Is it ever appropriate to give life sentences for nonviolent offenses? Texas' law frequently allows it, but it makes little sense to me - not when there's not enough space to house much more serious offenders.

In addition, the story implies that the Legislature could just throw more money at the problem and solve it, but that's not true, either. Regular readers know that Texas prisons are already understaffed, and though voters approved new debt to build three more, even if they're built it's unlikely the state can find enough employees to staff them. There is a pragmatic limit to how much prisons can safely expand without sufficient staffing, and Texas already reached that threshold several years back.

The article hints at another big problem that the state only this year has begun to address: Texas' probation system is broken, and long probation terms with minimalist supervision maximize the number of low-risk offenders revoked to prison. Probation terms are so long and have become so onerous and expensive that many offenders would quite rationally rather serve an incarceration stint than agree to long, draconian supervision terms.

The Paris News says "“We are back to where we were in the late eighties and early nineties," but that's not quite true. In the late '80s the prison system actually had to let some violent offenders loose early to free up prison space. Today, more than half of Texas prisoners are nonviolent offenders, and they're mostly the ones the parole board has been releasing sooner when they become eligible.

Prosecutors like to spin Texas' overincarceration crisis to say more prisons are the answer, but to reach that conclusion they usually focus on the wrong questions, as did critics quoted in this story.

I predict similar articles will crop up more often in the coming years, but reporters writing them should ask more and different questions of a broader array of sources to get the context right: Why are low-level offenders receiving decades-long sentences, and does that help or harm public safety? How understaffed are current prison units? Where would guards come from to staff new prisons? How much would new prisons cost taxpayers in the long haul? What other priorities (roads, education, healthcare) must be short-changed to spend more money on prisons? Why aren't more drug offenders sentenced to treatment instead of incarceration?

The Lamar County DA says justice is not served when a defendant sentence to life serves only eight years, but arguably justice is not served by assigning such a draconian punishment to someone whose offense was nonviolent and addiction-driven. Texas' overincarceration crisis will push these justice defining issues to the forefront over the next few years, and its high time to have a collective conversation about whether it's desirable or even possible for the state to continue along its current path.

Secrecy, wiretapping turns homeland security bill into Big Brother

Anyone who watches national politics knows that a lot of crappy legislation gets passed in the name of "homeland security," and the same is true at the Texas Legislature. On Tuesday the House Defense Affairs Committee will consider bills pitched as homeland security provisions that extend well beyond protecting us from terrorists, the most significant of which will be Chairman Frank Corte's HB 3642, an omnibus homeland security bill that branches out to odd and surprising areas that risk possible unintended consequences.

A big chunk of the bill addresses the ins and outs of Texas political subdivisions entering into mutual aid agreements in the event of disasters or other emergencies. Not much to complain about here from a civil liberties or criminal justice perspective, though I'm sure agencies involved would have something to say about the logistics and reimburesement regimens. But then the legislation takes some odd and unfortunate turns.

HB 3642 imposes new restricitions on sales of prepaid mobile phones that are essentially similar to the restrictions on pseudoephedrine products aimed at reducing meth manufacturing. Phones must be displayed behind counters where only salespeople can reach them, and purchasers must be 18 years or older, show photo ID, sign a log, and cannot buy more than two phones at a time. The pseudoephedrine restriction has reduced illicit sales but suffers from numerous shortcomings. E.g., many smaller vendors don't abide by registration restrictions, there's nothing to stop use of fake IDs for purchases, and law enforcement has no resources to check signatures in the logs. According to the most recent interim report of the Senate Criminal Justice Committee:

there is risk that the success of recent legislation will be short-lived if enforcement is not improved. While pharmacies and drug stores that sell cold medicines containing pseudoephedrine have complied with the law requiring the products to be moved behind the counter and purchases logged, no authority checks or monitors these logbooks. Currently the books are only used occasionally for investigations usually triggered by other circumstances. Though the logbooks seem to act as a deterrent for users, that alone is not sweeping or permanent enough to be a solution.

The same would certainly be true of restrictions on prepaid cell phones. Yet this bill would re-create the pseudoephedrine regimen even though it hasn't worked well.

It's anyway unclear that this provision relates to terrorism at all. As any watcher of the TV show The Wire are aware, prepaid cell phones or "burners" are more a staple of those engaged in illegal drug sales, which is almost certainly where most uses of such investigative resources would occur. There may or may not be legitimate reason for restricting such phones on that basis, but there is little reason to think of this as a homeland security measure.

Besides, there's no inherent justification I can see for banning anonymous cell phone speech, which is the crux of the issue behind the desire to document cell phone purchases. I'm not an attorney, but it seems to me there are likely quite a few Constitutional free speech concerns with placing such restrictions on cell phones that wouldn't apply to pharmaceuticals.

Another section of the bill allows government agencies to go into closed sessions to discuss security audits and emergency plans. This idea was proposed after 9/11 in Texas and rejected for very good reasons: Emergency plans benefit from public vetting and input, and those created in secret tend to ignore problems that would surface if exposed to the light of day before a catastrophic event.

Computer security experts like Bruce Schneier preach incessantly that "open source" approaches - or making public security problems instead of concealing them - over time enhance security. The same is true for things like evacuations or responses to bioterrorism incidents. Keeping emergency plans secret will only mean that in crunch time the public doesn't understand the plan or what they're supposed to do. Keeping security audits secret means that when security problems are identified, politicians will experience no public pressure to fix the problems, so they may not. Secrecy in these contexts isn't just unnecessary, it's counterproductive - harmful to the goal of ensuring public safety.

The final section of the bill would expand the range of crimes for which the state can engage in wiretapping to include kidnapping, human tafficking and money laundering. Once again, these seem to be tools aimed at drug and immigration enforcement dressed up in the garb of homeland security. Because wiretapping is such a serious breach of privacy, current law restricts its use to the most serious types of crimes. Expanding it further should be debated and discussed in the law enforcement context in which it would most often be used, not under the pretense of protection from terrorists.

It would also expand state wiretapping powers in ways essentially similar to some of the provisions in the federal PATRIOT Act, in particular allowing judges to decide that "exigent circumstances" exist that justify wiretaps that don't specify specific locations where phones will be tapped, but to tap any phone used by an individual. This creates a circumstance where phones may be monitored because an individual might use them, but other people's privacy is invaded as a side effect of the investigation, which is why the restrictions are there in the first place.

These provisions were considered after 9/11 by the Texas Homeland Security Task Force, but then task force chair now-Lt Governor Dewhurst scuttled the idea, declaring that Texas shouldn't react to 9/11 by reducing civil liberties. As far as I can tell, nothing has changed since then to make one think Texas needs to do this now.

This bill contains too many troublesome provisions to pass in its current form. Hopefully the Defense Affairs Committee will simply reject the idea, or else approve the portion of the bill involving mutual aid agreements and dump these other parts.

Hindsight in lieu of foresight: Corruption among border officials was foreseeable, preventable

NBC News has a fascinating report on growing corruption among US Border Patrol and customs agents:

At a U.S. Senate hearing, it was revealed that Mexican cartel members are infiltrating American law enforcement. There was also testimony that during a hiring push that began five years ago to add thousands of Border Patrol and CBP officers, only 10 percent of the initial applicants were given polygraph tests.

Of those, 60 percent failed, raising concerns about the integrity of the others hired without screening.

"A very large percentage of those they don't test run into trouble within a year or two of being hired,” says Sen. Mark Pryor, D-Ark.. 

Gosh, how could anyone have predicted this outcome? Unless, of course, they read this Grits post when the Bush-era hiring expansion was launched, in which this blog argued:

Seriously - if you were a cartel leader, wouldn't you be manufacturing phony ID papers and sending in your lieutenants to apply for these slots as quick as you could? And do you think the Bush Homeland Security department will handle vetting 10,000 new agents any more competently than, say, the response to Hurrcane Katrina?

Maybe I'm just being cyncial, or maybe I've just seen it happen too many times, but I predict we'll see increased corruption problems among border officials in coming years as a result of this illogically rapid, politically motivated border security buildup.

You could see this coming a mile away, but now those whose, ill-conceived, feel-good policies created this situation five years ago want credit for trying to clean up a preventable mess of their own making: Further evidence, if it were needed, of the results when demagoguery and policymaking collide.

False claim of unfair competition could limit in-prison work programs

The Texas Department of Criminal Justice has very few reentry programs, but one of its more successful ones is under fire at Thursday's House Corrections Committee meeting in the form of HB 1914 by committee chairman Jim McReynolds (with a companion bill in the Senate filed by Sen. Robert Nichols), aimed at further eliminating most prison industries programs on the false assumption that they take jobs away from people in the free world.

The Prison Industry Enhancement Certification or PIE program was created 15 years ago - designed to give inmates work skills and provide inexpensive labor to industry participants. PIE has 200-300 working inmates at any given time - only five companies participate currently.

Among other things, HB 1914 would require TDCJ to reject prison industries contracts "if the board determines that the contract has negatively affected or would negatively affect any employer in this state." That's so broad, it's inevitable somebody will come forward to complain. I'm told by those involved with prison industry programs that, if this bill passes, they fear it will soon eliminate PIE programs entirely.

By all accounts, PIE has a pretty good track record as reentry programs go - recidivism is low, inmates help pay for their incarceration, pay into the Crime Victims Fund, and contribute to supporting their families in the free world. PIE graduates frequently are employed upon release by their in-prison employer, helping overcome the biggest barrier to success for ex-prisoners: finding a job.

But Chairman McReynolds and state Sen. Robert Nichols are seeking restrictions that would likely choke off PIE as it currently exists. Why, you might ask?

Last year, a company called Lufkin Trailer (in McReynolds' and Nichols' districts) cried foul claiming that a PIE-based competitor, Direct Trailer, assumed an unfair advantage because they used inmate labor and paid minimal rent for their in-prison manufacturing facility. Sen. Nichols rode to their defense, convincing TDCJ to end Direct Trailer's contract. (Even so, with this supposedly unfair competition gone, Lufkin Industries continues to lay off more employees.)

The idea that in-prison manufacturers have some great advantage is a myth. For starters, Lufkin Trailer's 2008 10-K form filed with the SEC notes that "any labor disruption could have a significant impact on Trailer’s ability to maintain production levels," however think about the labor disruptions in prisons, where lockdowns, disciplinary actions, and any number of other problems free world employers never have to deal with may significantly impact labor availability.

Further, PIE programs must comply with byzantine prison rules that simply dont' affect free-world industries - for example, elaborate systems for counting and accounting for tools at the beginning and end of each shift to keep inmates from smuggling weapons or contraband.

For that matter, all existing PIE programs are relatively small endeavors that are unlikely to directly affect other Texas' businesses. Tellingly, in their official 2008 10-K statement, Lufkin Industries announced its decision to close Lufkin Trailer but didn't once mention competition from in-prison labor as a significant factor. Instead, the company blamed

reduced activity in the home and road construction markets as well as reduced profitability from higher fuel prices. In 2007, industry order rates and backlog for flatbed trailers decreased over 40% and for dump trailers over 25% compared to 2006 levels. In the fourth quarter of 2007, industry order rates and backlog for flatbed and dump trailers decreased almost 50% compared to the fourth quarter of 2006. Due to these market conditions, in January 2008, the Company announced the decision to suspend its participation in the commercial trailer markets and to develop a plan to run-out existing inventories, fulfill contractual obligations and close all trailer facilities during 2008.

Indeed, the 10-K's specific discussion of "competition" never mentioned their PIE-based competition as a serious factor:

The trailer market is highly competitive with relatively low barriers to entry. The majority of the cost of a new trailer comes from purchased materials of aluminum, steel, tires, axles and wood flooring. Since there is minimal product differentiation in this market, price is the key driver. The companies with the highest market share are Great Dane and Wabash, along with several other large manufacturers like Utility, Stoughton, Fontaine, Vanguard and Hyundai. The Company does not have a significant market share in the trailer market.

By that account, any minor, extra competition from a small PIE outfit didn't have nearly as much to do with Lufkin Trailer's closure as macro trends in the global trailer market and competition from larger producers. Direct Trailer isn't even mentioned in the company's 10-Ks as a significant source of competition.

So the prime example being trotted out to restrict the PIE program is a false one. International market conditions and competition from larger economic players were the reasons Lufkin Trailer closed, by the company's own assessment, not some penny ante prison industries operation.

Still, Sen. Nichols in particular continues to attack the PIE program as some villainous activity while painting Lufkin Trailer as an innocent victim of a prison jobs program. What Nichols neglects to mention is that Lufkin Industries recently lost a class action racial discrimination lawsuit brought by African American employees of Lufkin Industries (Lufkin Trailer was specifically named in the suit.) The conservative Fifth Circuit Court of Appeals in February of 2008, affirmed (pdf) most of the lower court's ruling against the company, particularly related to the "discriminatory impact of [the company's] subjective promotional policies." If Nichols and McReynolds are concerned about Lufkin Trailer employees, maybe they should be seeking remedies for those problems.

I wish the Corrections Committee was looking for ways to expand the PIE program, not restrict it beyond its current, minimalist presence in Texas prisons. After all, who would you rather have released from prison - the guy who sat around the whole time working out and swapping techniques with other cons, or the guy who went to work every day at a PIE facility and learned job skills to become a productive citizen upon release?

We need more initiatives like PIE and the Prison Entrepreneurship Program to prepare inmates for success upon reentry, not less. Efforts to restrict in-prison jobs programs IMO are misguided and counterproductive to public safety.

The challenge of notifying defendants in large-scale forensic-error cases

The Annie Dookhan case in Massachusetts is an even bigger mess than was the Jonathan Salvador debacle in Texas. If you don't remember Ms. Dookhan, she was the ultimate cop-in-a-lab-coat, to use Sandra Guerra Thompson's phrase. Dookhan worked on many more cases than Salvador and her malfeasance allegedly involved explicitly manufacturing evidence and falsifying documents for the purposes of framing people.

By contrast, Jonathan Salvador apparently copied results from old MDMA evidence because he wasn't technically competent to process the pills and feared his supervisors might fire him for not understanding the basic chemistry underlying his job five years in. So the instances of faked results were less widespread, less malicious in intent, and less likely to occur in cases where the true results were exculpatory.

Nonetheless, when one reads the Boston Globe saying, "It's time to clean up Annie Dookhan's drug lab mess," some of those same criticisms apply to Texas' handling of L'Affaire de Salvador. That article opened:

Imagine, for a moment, you are one of the thousands of defendants whose cases were sullied by Annie Dookhan’s drug-lab skulduggery.

Shouldn’t someone let you know?

But who? Should it be the prosecutors who made cases using evidence her actions tainted? Or, less plausibly, the overburdened defense attorneys whose clients were harmed by her?

Incredibly, more than four years after Dookhan’s crimes were first uncovered, this simple question of justice remains unresolved. Thousands of those whose lives were affected haven’t been notified of their rights, including the possibility of a new trial. Many still have no idea they are Dookhan defendants.

That's true in Texas, too. Most prosecutors did eventually send notices to either last known addresses of defendants or to defense attorneys. But defense attorneys who were appointed to take a case won't see some potential post-conviction claim as falling within their obligations. And, except for defendants still in prison, there's little certainty and much doubt regarding whether most defendants were actually notified. In fact, most folks are pretty sure that many were not.

That's important because the Texas Court of Criminal Appeals has said defendants in the Salvador case are entitled to relief if evidence in their cases had been destroyed and could not be retested. Best estimates given to the Forensic Science Commission were that that was the situation in between a quarter and half of the nearly 5,000 cases Salvador worked on in a DPS crime lab in Houston. But we've not seen remotely that many writs coming through the CCA. Grits thinks that's largely because of breakdowns in the notification process, with a secondary cause of defendants who were notified having no resources for an attorney. (In most cases, there's no right to counsel for habeas corpus writs.)

So, while prosecutors have done more in Texas than in Massachusetts, by no means does Texas have this figured out. Unlike in Massachusetts, Texas courts and prosecutors have granted that notification in these cases is necessary. But nobody has yet figured out how to perform that function effectively.

Similar issues inevitably will arise in the hair microscopy and DNA mixture reviews: How do you effectively notify defendants beyond a pro forma, sure-to-be-returned letter to the last known address? Perhaps there are big data solutions to finding folks, or other methods which haven't been tried yet. But notification never received is hardly superior to no notification at all.

See prior Grits coverage of the Jonathan Salvador case:

• Grievance: DA's failure to notify defendants in Salvador mess kept inmate wrongly incarcerated for two years
• Jonathan Salvador fallout: Two cases bookend range of options
• Should Texas create a statewide public defender for forensic writs?
• Salvaging Salvador: Part Two
• Salvaging Salvador: CCA reverses course in Salvador mess
• 'White paper' suggests systemic reforms to react to mass forensic errors
• CCA considers volte-face in DPS crime lab fiasco
• Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or questions of law
• TXCCA will overturn Salvador cases no matter what other evidence exists
• Nuther overturned case based on Jonathon Salvador crime lab fiasco
• Texas praised for response to DPS-Houston crime lab scandal, compared to Yankees
• On Defining Drylabbing: More from forensic commission meeting on DPS crime lab debacle
• 17 and counting: Texas Tribune on DPS crime lab scandal
• CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturned
• Fort Bend DA failed to notify defendants of misconduct by DPS lab worker
• The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct
• Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
• DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
• Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
• Bad apple at DPS crime lab could spoil barrel of convictions
• DPS analyst who faked results worked on 4,944 drug cases
• Drug analyst at DPS crime lab issued erroneous reports