Saturday, December 31, 2005

Grits 2005 Retrospective

Well thank God it's almost over. To be honest, 2005 wasn't a great year for me personally, but without question maintaining this blog has been one of the real high points. I've been churning out 15,000 to 30,000 words of prose here every month -- almost 900 posts so far -- far too much for any sensible person to wade through, I know (even my wife and best friends don't actually read this stuff!). It's great writing practice, though, and quite useful to me for tracking the issues I'm working on.

With that kind of output, I've no illusions too many people will go back to read Grits' voluminous archives, but if you're interested in sampling what I've been writing on this blog in 2005, I've compiled a more or less representative linkfest below:

January
February
March
April
May
June
July
 August
 September
 October
November
December
Hope you enjoy this new year's sampler, and please come back by in 2006 for more nutritious, mouth-watering servings of Grits for Breakfast. Happy New Year, folks!
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Friday, December 30, 2005

Bad idea from Texas exported to Britain: Arresting litterers and seat belt violators

Here's a terrible idea that Texas exported in 2001 to the rest of the country which now appears to have been exported again abroad, this time under the guise of fighting terrorism. On January 1, police in Britain will become empowered to arrest anyone for even the most minor violations, entirely at the officers' discretion ("Now you can be arrested for any offence," London Telegraph, 12-29):
Police are to be given sweeping powers to arrest people for every offence, including dropping litter, failure to wear a seat belt and other minor misdemeanours.

The measures, which come into force on Jan 1, are the biggest expansion in decades of police powers to deprive people of their liberty.

At present, officers can generally arrest people if they suspect them of committing an offence which carries at least five years in prison. They will now have the discretion to detain someone if they suspect any offence and think that an arrest is "necessary".

Here's the Texas connection: In January 2001, the US Supreme Court made some bad law in a Texas case called Atwater v. City of Lago Vista, ruling that it was constitutional to arrest anyone for any offense -- in that case a suburban Mom bringing her kid home from soccer practice, arrested for a seat belt violation. So long as that law stands, I've argued on Grits and at the Lege, it's laughable to claim that anyone "consents" voluntarily to searches by police officers. As I've described the problem previously:
In Texas, the US Supreme Court upheld our law in Atwater v. City of Lago Vista allowing arrests for "Class C" misdemeanors, which are misdemeanors for which the only punishment is a fine, not incarceration.

Months after the Supreme Court ruled such arrests were legal, the Texas Legislature passed a law banning them, but Texas Governor Rick Perry vetoed the bill, and has pledged to veto it again in the future as a sop to the state's largest police union.

After Atwater, and thanks to Governor Perry, if a driver says "no" to a request for a so-called "consent search," the traffic offense that was the pretext for pulling the driver over can magically become an offense that necessitates the driver's arrest, after which they will be required by law to search the car as part of an "inventory search." After this scenario is explained to a driver, who would rationally refuse a search?
That Texas case became US law the same month President Bush was inaugurated, and in my own mind, unfairly perhaps, I've always associated Texas' exporting Governor Bush to the national stage with this particular authoritarian judicial ruling made national dicta just days before his ascension to the presidency. At the least, let's say I considered it an ill omen, one the British now share.

So to any English readers out there, let me fill you in on what you're in for, since we've been living with this situation in Texas for awhile now: Soon your local jails will be completely full of low-level arrestees at a huge cost to the taxpayers and with little benefit to public safety.

Welcome to the Texas criminal justice model. Enjoy.
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Thursday, December 29, 2005

Congressman made up Al Quaeda incident at TX border

A lie can travel halfway 'round the world before the truth can tie its shoes.
- Mark Twain (attributed)
In November ... US Congressman John Culberson told Fox News that an Iraqi national with ties to al qaeda was apprehended on the Texas-Mexico Border.

“And the Hudspeth County Sheriff, Arvin West, and the Brewster County, Ronnie Dodson, confirmed for me that they had an Al Qaeda terrorist, an Iraqi national who was on the FBI’s terrorist list as an Al Qaeda member in the Brewster County jail,” Culberson said on Fox's Hanity and Colmes show. ...

Brewster County Sheriff Ronnie Dodson said to the Big Bend Sentinel, “We have no terrorist in our jail.” Bill Vanderland of Midland, the FBI supervisor for the Permian Basin and Big Bend, stated to the press "that it appears the reports of Al Qaeda terrorists detained in Far West Texas jails has been blown way out of proportion."
Uh-huh
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Statesman's old news on broken Travis probation system

The Austin Statesman finally acknowledged Travis County's "broken" system for supervising offenders on probation, I suppose better late than never. On Monday, the Statesman ran an item by Steven Kreytak describing a consultant's report critical of Travis County's system for supervising people on probation ("Broken Travis probation department getting fixed," Dec. 26). Reported Kreytak:
Travis County probation officers are so bogged down with paperwork and heavy caseloads that they do not have time to focus on ways to keep the probationers they supervise from committing new crimes, according to a recent consultant's report.

The analysis of the department that oversees about 11,500 people who might otherwise be in prison or jail also found other problems, including:
  • Probation officers gather a wealth of computerized data that could help identify effective programs and plans for probationers, but those data are not regularly analyzed.
  • Many probation officers do not leave their offices for home visits, a valuable way to develop relationships with probationers and spot potential problems.
  • Many low-level offenders are too strictly supervised, increasing officers' workloads and diverting resources from probationers who need to be watched more closely.
An interesting description, but not exactly news. The "recent" study (pdf) came out in late August, and Monday's article didn't even mention the main fix consultants advocated to reduce probation caseloads. (Grits covered the consultant's findings more extensively in October here, here and here. ) This item obviously has been sitting in the can for quite a while, held back as filler for an off week when many reporters are on vacation and it's harder to fill newsholes in the paper. Or maybe editors just don't think it's very important.

From everything I hear, the probation department's new director, Dr. Geraldine Nagy, is steering the ship in the right direction -- aiming to reduce caseloads and probation revocations and focusing programs more precisely on the needs of the offender. Austin's sure lucky that Nagy didn't require media pressure to do the right thing.

I find it pretty ironic that the MSM -- and TV news in Austin are worse than the Statesman by a longshot -- focus so much attention covering "crime" on a case by case basis, but ignore for months stories like this that more directly affect public safety. One heinous crime might get hyped in the news for weeks, but a "broken" system for supervising convicted felons gets treated by the media as an afterthought.

RELATED:
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Tuesday, December 27, 2005

Holiday blog roundup

Roaming about the blogosphere after returning from holiday, I discovered these choice blogbits Grits readers may enjoy:
  • Blogger makes good. Congrats to CrimProf blogger Mark Godsey for his appearance on Larry King Live after the Innocence Project he runs at the U. Cincinnatti law school achieved a remarkable DNA-based exoneration.
  • Fallible fingerprints. CrimProf Blog also points to this story about reforms at a Boston fingerprint lab after police technicians falsely confirmed a fingerprint match to convict a defendant of shooting a police officer.
  • Good blogging. Larry James at Urban Daily has been on a great roll over the holidays. Just start at the top and keep reading and scrolling.
  • Valley businesses against xenophobes. Rep. Pena tells why the President of the Rio Grande Valley Chamber of Commerce opposes a border wall. Given who works the Texas construction trades, I don't think it's possible to build such a wall without illegal immigrant labor. Meanwhile, Immigration Law Blog quotes the Arizona governor pooh-poohing the idea, declaring, "You show me a 50 foot wall, I'll show you a 51-foot ladder."
  • Hyping crime. Kevin Whited at BlogHouston says Houston's murder rate is "skyrocketing" because of a 23% one year increase, from 263 murders in 2004 to 324 so far this year. But he neglects to point out that the same article says overall crime is down, nor does Whited put the numbers into context. Houston experienced 608 murders in 1991, and 375 in 1994 (See here for historical stats [pdf]). Given that history, plus everything that happened this year in Houston with Katrina, Rita, etc., that kind of fluctuation doesn't seem like cause for hyperbole. UPDATE: Mark Godsey at CrimProf Blog wonders if there is a Katrina link to Houston's new crime stats.
  • Quite a pair. Nate at Common Sense has the story of Desperate Housewives star Eva Longoria and her boyfriend San Antonio Spurs point guard Tony Parker's encounter with a San Antonio cop.
  • Faith on the Web. Xpatriated Texan had an interesting item about faith on the web, where some folks are aspiring toward web-based "churches without walls." Abilene's Mike
    Cope had this great pre-Christmas post describing a pastor's front-row view of family relationships, inspiring equally thoughtful comments. Lately I've also been reading the folks over at Street Prophets, speaking of faith on the web, in particular Chuck Currie. I certainly wish Currie the best as he recovers from surgery.
  • Forbidden Love. Via Immigration Law Blog, it's an "open secret": By day the Border Patrol catches illegal immigrants, by night many agents date them. Life is messy, ain't it?
  • Anatomy of federal plea deals. This item from Federal Crimes Blog on the Enron fraud proceedings lists all the factors federal prosecutors are allowed to consider when making a plea deal. Topping the list at #1 was snitching, or the "willingness of the defendant to cooperate in the investigation or prosecution of others."
  • Innocence hell. Capital Defense Weekly has an item on the difficulties facing attorneys convincing judges to agree to new DNA tests when pursuing innocence claims, and links to this resource list on innocence issues.
  • Huge victory in Congress! DARE Generation Diary consoles itself with half a loaf, but definitely the "bigger half," I'd say, regarding the Senate's move to let students with past drug convictions receive financial aid. Dick Cheney cast the deciding vote to let the measure through, so President Bush's final approval seems assured. ACLU and Students for Sensible Drug Policy recently announced their intention to sue over the provision, so we'll see where that goes now that the law's changed. Congrats to all involved.
  • Do you really want to know? Bruce Schneier relays how to tell if the National Security Agency is reading your email.
  • Outlaw Christmas. Zach Patton at Governing magazine's 13th Floor blog tells how new anti-meth laws have him buying bulk cold medicine for his Mom's Christmas gift, and wonders if that makes him an "outlaw."
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"Don't snitch, Jack"

"Don't snitch, Jack," my sister-in-law said to my first-grader nephew on Christmas Eve after he'd tattled about some minor indiscretion by his older sister, Maggie. "Yeah, don't snitch, Jack," Maggie Lee chimed in cheerily with her high-pitched, sing-song voice. (She's in the fourth grade, she'd want me to mention).

Jack accepted his reprimand and went on about his business, but I've run the scene over and over in my mind ever since.

These are preacher's kids (my brother's a hospice chaplain and pastor of a small Baptist church in Denton County), and I'd dare say that if their family teaches the "don't snitch" meme, most Christian families in America teach their kids something pretty similar ("don't tattle, etc.). I don't know if they'd cite any specific theological basis for that philosophy. Perhaps they consciously associate snitching with Judas' role in the passion story, or Delilah's seduction of Samson -- if so, maybe my brother John can respond to tell us on his own blog. But I'll bet it's more deeply rooted than that, something we've all been taught from childhood, one of those values held so long we forget where it came from and why.

I know when we were growing up, if my brother or I snitched on the other one for some offense that merited a belt whipping, my father always gave one more lick to the snitcher than to whomever committed the offense. Let me tell you, it didn't take long for us to stop snitching after that policy was implemented a time or two.

Clearly my brother's household has carried that familial tradition forward in their own way -- his kids are being taught at an early age not to snitch, and I think that's a good thing.

A lot of overblown criticism has rained down on folks promoting the "Stop Snitching" T-shirts, accusing them of condoning murders and various heinous crimes. Even I've said before I don't think, in the end, that's the right message to take into the political arena, and I still think that's true.

At another level, though, the scene with Jack and Maggie tells me the "Stop Snitching" meme taps deep into the moral foundations of our society. What positive values does it teach?
  • Loyalty, obviously -- to snitch is inherently disloyal.
  • Trust -- if someone tells your secrets, they've broken your trust, even if those secrets were about some sort of wrongdoing.
  • Faith -- telling secrets to others is an act of faith in that person -- if they snitch, it's more difficult each time thereafter to have faith in the trustworthiness of other people, generally eroding human relationships at their foundation.
  • Prudence -- society expects us all to know and understand that when someone has put their trust and faith in us, those are treasures we need to be careful to preserve. Snitching commodifies trust and faith in exchange for whatever the snitch gets for their information (whether that's a sweet plea deal from a prosecutor or satisfying the vengeful spite of a first grader).
Snitching assaults all those values in a way that destructively undermines people's ability to maintain deep human bonds. (There are probably more I'm not thinking of, so if you think of any let me know in the comments.) The practice should be rightfully scorned, encouraged only in extreme circumstances -- pressure to snitch forces informants to weigh the gravity of the alleged offense with how much esteem they personally hold for the values bulleted above. These are hard moral judgments to make -- there is no "right" answer that's applicable in every case.

When police use a confidential informant to solve a murder or kidnapping, I think very few people would say the snitch did the wrong thing. The problem comes with the expansion of snitching in last three decades, especially as part of the drug war: the person who turns in their friend for selling small amounts of pot in order to avoid their own drug beef confronts a much different moral equation than the one facing a witness to a violent crime. (Of course, witnesses of violent crimes may have other non-moral reasons for not coming forward, like fear.)

That's why it's ridiculous to think banning the "stop snitching" t-shirts would help anything -- you can't ban the positive, right-thinking values that underlie the fad, and most folks wouldn't want to. It's a serious political mistake for the criminal justice system to place so many thousands of people in a position of making a moral choice where, predictably, many of them will find the government's position -- e.g., that they should snitch on relatively minor crimes like drug possession or low-level dealing -- more offensive than the criminality it hopes to stamp out. That decision doesn't just affect them, but also their families, their circle of friends and a variety of community institutions, creating division and distrust that comes to frame all those people's future interactions, both with police and one another. In the end, we've created a situation where significant portions the public become reluctant to assist law enforcement, essentially on moral grounds, undermining the legitimacy of government and harming public safety instead of improving it.

Snitching in the criminal justice arena poses a variety of problems besides just this moral dillemma. As Prof. Alexandra Natapoff recently put it in Slate, "The backlash against snitches embodies a growing national recognition that snitching is dangerous public policy—producing bad information, endangering innocent people, letting dangerous criminals off the hook, compromising the integrity of police work, and inciting violence and distrust in socially vulnerable neighborhoods." But I think, at root, while public policy arguments can motivate politicians to act, the public's unease with informants stems largely from these deeply held, largely positive values that normally should be encouraged.

"Don't snitch, Jack." There's a lot summed up in that little phrase. A lot to think about.

See Grits' past writing about snitching and police confidential informant practices:
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Monday, December 26, 2005

Dallas man spends 15 months in jail but never charged with a crime

Hurrah for the two public defenders -- E.A. Srere and Shoshana Paige -- who sprung Walter Mann Sr. from the Dallas County Jail last week where he did 15 months without ever being charged with a crime. (See from the Dallas News: "Uncharged man silently did the time," 12-23, and "Man, 69, readjusts after jail," 12-24.)

Nobody ever visited the poor fellow while he was incarcerated, and apparently he never saw his appointed lawyer. Mann spent his first night out of jail sleeping in an abandoned truck behind his old church, wating to see the pastor or someone he knew to ask for help.

"I have never ever seen somebody held this long without anything holding them," said E.A. Srere, a lawyer in the Dallas County public defender's office.

"I think it's a case of somebody who slipped through the cracks, and nobody figured it out."

Mr. Mann's story, as told through court filings and interviews, began in summer 2002, when his 13-year-old son assaulted him. The son went to a juvenile detention center. Mr. Mann – unemployed with an eighth-grade education and on disability benefits, according to court records – was assessed a $50 monthly payment to compensate the county for housing the boy.

Mr. Mann didn't pay. In spring 2004, the district attorney's office filed a motion for contempt of juvenile court. After Mr. Mann failed to appear for a July hearing, the court issued a writ of attachment – a little-known civil order that commanded authorities to bring him before a judge.

It was that order – according to the Dallas County Sheriff's Department – that would lead to a prolonged incarceration.

Are you kidding me? A contempt citation for not paying housing costs assessed for your child's incarceration, when you yourself are indigent: Can you even imagine? How are the poor to pay for jail costs when county governments can't figure out how to do so? Then again, I guess that's why the charges were assessed in the first place -- another instance where overincarceration creates new self-reinforcing pressures to incarcerate ever-more people.

Tell me: Who in their right mind thinks incarcerating this poor fellow for any length of time, much less 15 months, improved public safety? It was his kid, after all, causing the trouble.

The Dallas County jail certainly has it's own problems, but in this case the fault seems to lie with the judge and whoever was supposed to have been appointed counsel. "We knew he was there," a sheriff's department representative said, but Mann was being held on a legitimate court order from Judge Cheryl Lee Shannon in the 305th Juvenile District Court.

To me, this points to another benefit of a public defender system for indigent defendants -- to better ensure consistency in the quality of indigent defense counsel. In an adversarial system, somebody like 69-year old Mr. Mann with an 8th grade education desperately needs a good lawyer -- this case is the poster child for why. But PDs split indigent cases with private appointed attorneys in Dallas, so Mr Mann didn't get to use the defenders office. Instead, his case only came to light when his cellmate "told his public defender, Ms. Srere, about his cellmate. Mr. Srere told a fellow public defender, Shoshana Paige. The same day, Ms. Paige made a couple of calls. Mr. Mann was released from jail on an order signed by Judge Shannon 'I was shocked, and then part of me was shocked that I was shocked because I've read enough other stories about things like this,' Ms. Paige said. 'This one seems to be pretty egregious.'"

The modern criminal justice system is a byzantine, complicated mess. Without an attorney to advocate for him, Mr. Mann was, obviously, royally screwed. With a competent attorney in his corner, he was released within a matter of hours. In the meantime, Dallas taxpayers ate the incarceration costs for 15 months at $40 - $50 per day, while perpetrating a monstrous injustice.

What's wrong with this picture?
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Two More Texas Innocents, 12 Others Pardoned

As is traditional before Christmas, last week Texas Governor Rick Perry granted 14 pardons to people who received recommendations from the Texas Pardons and Paroles Board, including two who were actually innocent and later cleared by post-conviction DNA testing. Of the two innocence cases, according to the Governor's 12-22 press release:
Keith Edward Turner was convicted of rape in 1983 in Dallas County was sentenced to 20 years and ordered to pay a $10,000 fine. Post-conviction DNA testing has shown that Turner is innocent, and the trial court issued findings that support Turner's innocence. The district attorney, trial court, sheriff and police chief all supported the pardon. At the time of his trial, DNA testing was not used because it had not been approved for admission into evidence in Texas courts.

Entre Nax Karage was convicted of murder in 1997 in Dallas County and received a life sentence. Following new DNA testing, the Texas Court of Criminal Appeals said new evidence "cast doubt on the reliability of (Karage's) conviction." The pardon for innocence was supported by the district attorney, the trial court and the sheriff.

The other cases were a motley assortment of low-level crimes for which pardons were recommended, most where the defendant committed a minor offense in their twenties and long ago finished serving their sentence. They included property crimes, family violence, a DWI, and one drug offense (marijuana possession).

I've never looked closely at that agency's criteria for recommending pardons, but one wonders why these dozen folks merited such redemption while many thousands more in the same circumstance do not? I'm not saying these twelve people don't deserve pardons. I'm thinking the agency should recommend many more, and the governor should encourage his appointees to consider more cases from these types of offenders.

Today, one in eleven Texas adults has a felony conviction on their record. Mass pardons of certain classes of youthful offenders -- say, those who committed one or two minor offenses in their twenties then had no more convictions for a decade -- could really help such folks find employment and improve their own lives and their families'. The "felon" label creates barriers to employment, housing, and community participation that follow people around for their whole lives. If the prospect for pardons were real, it would encourage good behavior while folks applied, actually improving public safety as a result. Plus, it would give the Governor more good press every yuletide, letting him look like a compassionate conservative at Christmas. I don't see a down side.

RELATED: Doc Berman had three informative posts before Christmas on the subject of clemency and pardons.
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Spying Eyes

ACLU of Texas boardmember Alamdar Hamdani authored a fine op ed that appeared in the Houston Chronicle on Christmas Eve entitled, "Spying Eyes: It's an affront to the Constitution, and the rights of American muslims." It opens, "For more than four years I have watched FBI agents pose inappropriate questions to my clients. In the name of the War on Terror, agents have questioned thousands of Muslims, often U.S. citizens, in violation of the First Amendment of the Constitution." Read the full piece posted on Texas ACLU's Liberty Blog.
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Tuesday, December 20, 2005

The Hermit

Grits will take a brief Christmas blog hiatus -- not for technical barriers or travel plans, but more for mental health purposes. (I may have to post one more time on ACLU's Liberty Blog to report the outcome of the escalating "War on Christmas." UPDATE: Here's the second installment.) For now, I'll be emulating the designation assigned to me by this (now-disabled) web quiz purporting to select a Tarot card that best represents you. The result corresponded to my holiday-season mood this year, particularly the art (UPDATE: which has since, regrettably, been removed from the web), so I thought I'd post it in lieu of actually coming up with anything original to write for the rest of the week.

You are The Hermit

Prudence, Caution, Deliberation.

More on The Hermit.

Blogging's a pretty good hobby for a hermit, don't you think?

Anyway, I'll be writing again next week, so until then check out old Grits posts (don't forget this nifty research trick for searching the archives) or read the fabulous bloggers linked in the right hand column. I've always liked writing and writers, so I'm a big fan of blogreading when I have the time. Reading other bloggers inspires me every morning to write -- both knowing that many of them are reading, since I respect writers so much, and also seeing high-quality work that drives me to constantly improve my own fare. Most of the folks linked on Grits, whatever their political point of view, are there because I feel like I learn something whenever I go on their blog. I encourage you to take time when you can to explore each of them.

So until next week, gentle readers, I'll wish you happy holidays, Merry Christmas, or whatever salutation won't raise your dander. ;-)

Thanks for stopping by.
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Truth trickling out in Dallas fake drug case

Fallout from the Dallas fake drug scandal keeps coming, providing a rare glimpse of how police corruption can collude with unscrupulous snitches against the interests of justice. The truth is only now trickling out after one of the officers involved "flipped," becoming a cooperating witness in the corruption case against his former partner who was indicted last week for stealing money supposedly paid to confidential informants. Reported the Houston Chronicle ("New charges in fake drug case in Dallas," Dec. 19):
authorities now believe "what you had was two criminal enterprises going on at once, separate from one another but dependent on each other."

Investigators suspect that while the informants concocted the scheme and were motivated by greed, [Dallas police officer Mark] Delapaz let it continue because he was "taxing" the informants and skimming money from informant payments.
That's a sad scenario, but also predictable and unsurprising. By definition, most confidential informants are engaging in criminal activities -- that's how police get their hooks into them. They catch them committing a crime, then convince them to become a snitch rather than arrest them for it. So almost all snitch relationships involve tolerating one criminal enterprise -- that of the snitch. All that differs in the Dallas case is the officers' willingness to cash in, too: A two-fer.

Even with this ex-officer's cooperation, we may never hear the whole story. Eight different cops signed their names to field tests falsely claiming that powdered pool chalk used to set up innocent people was really cocaine or meth. Only two so far have faced indictments -- Delapaz and his former partner -- and it seems unlikely any of the other officers will ever be held accountable.
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Monday, December 19, 2005

Deepak Chopra: Texas' overincarceration "in a class by itself"

Deepak Chopra says the Bush Administration's penchant for torture isn't the only reason the United States can no longer claim to provide the gold standard for human rights in the world. Our criminal justice system, especially in Texas, he argues, also disqualifies us for the role:
America leads the world in executing criminals and is among the few Western countries that still retain the death penalty.

We have among the harshest sentencing guidelines for non-violent felonies, including the three-strike law in several states, mandatory drug sentencing, and a federal policy (as ordered by former Attorney General John Ashcroft) that forces prosecutors to seek maximum penalties without leeway for plea bargaining.

More than half the prison population is being held for drug-related offenses, often for draconian periods of time--see the Rockefeller laws in New York where a few marijuana plants can land someone in jail for a decade or more . This, despite the well-documented research on the medical harmlessness of marijuana if used recreationally, the way millions of people use alcohol.

We imprison a far higher proportion of our population than any other Western country and perhaps more than any country in the world. On a state-by-state basis, Texas is in a class by itself, with 120 new prisons, for a growth of 706 percent over 21 years.
Via Intent Blog
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Visit A Capitol Blog

I've been enjoying Texas state Rep. Aaron Pena's A Capitol Blog lately, and not just because he posted a photo of Grits, the Rep and Eileen from the recent Pink Christmas bloggers' boozefest. He's also been doing some fine legislator blogging, including an item decrying Cameron County's recently sentenced corrupt ex-sheriff, this post on the new fence/wall proposed for the Mexican border, others questioning whether Latino voters will turn against the GOP, and today turning readers on to a new blog on immigration called Migra Matters. Check him out while Grits' posting is slow this week.

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Sunday, December 18, 2005

The True Story Of "The War On Christmas"

On ACLU of Texas' Liberty Blog this morning, I posted an item revealing the true story of ACLU's "War on Christmas." The next phase is armed struggle. UPDATE: Read the second installment, "Gay Communists and the War on Christmas."
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Friday, December 16, 2005

I wouldn't qualify for this job

Stay in school, kids, and maybe one day you can be an Arlington cop. An item last week from the Fort Worth Star Telegram ("Facing Stiffer Competition, Texas Police Expand Recruiting Efforts," Dec. 4) declared that heightened demand for law enforcement and baby-boomer retirements are making it hard to find cadets, even when departments offer high salaries (I'd guess extended National Guard stays due to the Iraq war also have something to do with it):
The Arlington Police Department is one of the few law enforcement agencies in the state to require a bachelor's degree. "The starting salary is pretty good for a student coming right out of college," said Williams, adding that starting pay is $42,600. "There are other jobs that pay better, but with the economy the way it is, a lot of larger companies are laying off. There is always stability in law enforcement."
Stability indeed. On the flip side, I remember listening to a judge last year in a bar in Veracruz tell me that cops in Mexico make about $150-175 American per month and were expected to make up the rest through La Mordida. Of course, even on this side of the border, some cops will find ways to make a little extra on the side. ;-) The last educational institution to grace me with a diploma (which I couldn't lay my hands on if you put a gun to my head) was Robert E. Lee High in Tyler, TX, so I definitely wouldn't qualify, but in the scheme of things, a cop's pay sounds pretty good in Arlington.
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Elderly inmates health costs rising

In their old age, murderers and rapists in Texas prisons receive better healthcare services than your grandmother, KHOU-TV reported yesterday ("High cost of seniors serving time in Texas prisons," Dec. 15). Maybe your Mom can't afford nursing home care, but taxpayers finance similar facilities for convicted killers. What's wrong with this picture?

A lot of politicians who pound the table demanding tax cuts as solutions for all economic woes are the same ones who want ever-longer prison sentences and go out of their way to appear "tough on crime." I wonder how they can look at this result and justify both positions? Reported KHOU:
The attention an 89-year-old convicted killer gets could make some people jealous.

11 News' Ron Trevino asked Dr. Bobby Vincent at the UTMB-Estelle Prison Unit about the attention some elderly inmates receive. "Is it safe to say a lot of the patients in this unit get better care than a lot of people the same age, out in the free world?"

"Absolutely, absolutely, without a doubt," Dr. Vincent replied.

UTMB handles the medical care at the facility for the most expensive of Texas prisoners.

Thanks to modern medicine, prisoners, like the rest of us, are living longer lives. Couple that with longer sentences and elderly inmates are the fastest growing segment of the prison population.

The report described the medical wing of the Estelle Unit where elderly prisoners are housed as the "closest thing the Texas prison system has to a nursing home." Well, have you ever priced a nursing home? We're talking big bucks. I'll bet they're more expensive with guards and surveillance. And who is still serving their prison sentences at 80+ years old? Those who've committed the most heinous crimes, no doubt -- murderers, rapists -- folks who did something terrible, but in many cases likely aren't a threat any longer, imprisoned as much by their infirmities as by concrete walls.

Now that Texas has passed a Life Without Parole option for capital offenses, we'll see a new class of offenders spending their twilight years on the taxpayers' dime, some of whom entered prison as teenagers. When the state chooses to incarcerate someone, it takes on a constitutional obligation to provide for their healthcare. Elderly inmates incur huge medical bills; in the end, I doubt a cost-benefit analysis could justify the expense in terms of increased public safety. Meanwhile,
Healthcare costs keep going up in the prison system. From dialysis to drugs, it's putting more of a strain on an already maxed-out state budget.

"I think oftentimes people forget that we've got granpas and grandpas in jail here, spending the rest of their life with us," said Dr. Owen Murray, UTMB Correctional Managed Care. "And that is very expensive care, as the free world folks know. And we're assuming that burden, I think, as a state."

If these inmates seem costly now, the expense increases with each passing day. "The general population in Texas prisons is growing annually at around 1 percent, while the over-55 population is growing at about 11 percent each year," KHOU reported. YOW! The most expensive portion of the prison population is expanding 11 times faster than the prison system as a whole! Eleven. Times. Faster.

Governing is about making choices, especially when Texas' governor and legislative leadership have taken new taxes off the table, and even proposed lowering them. So we must choose: Would Texas rather pay to incarcerate an 89-year old, or use that money to educate 10 more students? Would we rather expand the nursing home wing in the prison system or pay for traffic improvements in Houston and Dallas? What's more important? There's a point after which tough on crime becomes too tough on taxpayers.

RELATED: See posts from Doc Berman on the rising cost of elderly inmates.
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Thursday, December 15, 2005

War on Drugs Hits the Geriatric Crowd

In Appalachian Kentucky. Why? "When a person is on Social Security, drawing $500 a month, and they can sell their pain pills for $10 apiece, they'll take half of them for themselves and sell the other half to pay their electric bills or buy groceries," Floyd County jailer Roger Webb said.

Sickening. Some days you wonder if this country has completely lost its collective mind. Don't help her buy food or subsidize her electric bill. Arrest her and toss her in jail, where the taxpayers can pay for all of that, plus her healthcare costs. We're talking about an 87-year old defendant.
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Texas Monthly: Why can't Steven Phillips get a DNA test?

Thanks to Texas Monthly editor Evan Smith for letting Grits have a free media preview link to Michael Hall's excellent story in the upcoming issue: "Why can't Steven Phillips get a DNA test?" Steven Phillips was convicted of a 1982 rape based on eyewitness testimony, but no physical evidence. A tiny bit of semen evidence was preserved from the rape, though, and Phillips believes a DNA test would prove that his three alibi witnesses weren't lying years ago when they said he was home asleep at the time of the incident. The problem isn't Texas' statute, but elected DAs and judges who want to prove they're tough on crime. Wrote Hall:
Phillips isn’t the only Texas inmate who has been denied a DNA test. Over the past five years, an estimated 800 convicts have made a request, but only 83 have seen it granted. “It’s harder to get DNA testing in Texas than any other state,” says Nina Morrison, a lawyer at the New York–based nonprofit Innocence Project. “The Texas statutory language is generous; it strikes an appropriate balance between granting testing in cases where DNA is relevant to the identity of the perpetrator and not granting it in cases where there are no doubts.” The problem, says Morrison and other lawyers, is that many Texas prosecutors aggressively fight DNA motions no matter what the merits of the request, and many judges apply a strict interpretation of Chapter 64, one that can make it almost impossible to get a test.
Be sure to check out the rest. Hall explains the ins and outs of DNA testing, takes a look at the troubled Houston crime lab, and discusses the role of Texan and former FBI director William Sessions promoting DNA testing in old cases. Good stuff, Michael. And thanks again, TM, for the preview!

RELATED: The Washington Post reports today on two more defendants exonerated by post-conviction DNA tests in Virginia. Both were convicted of rape more than 20 years ago.
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Wednesday, December 14, 2005

Immigrants need to trust law enforcement

If you need a reason why it's a bad idea for state and local cops to enforce immigration laws -- like the bill Sen. Kay Bailey Hutchison proposed in October, or what City Councilman Mark Ellis wants to do in Houston -- look no further than the new initiative by Texas Attorney General Greg Abbott aimed at fighting international wire fraud, especially fraud committed against people sending money to Mexico. It's an example of important crime-fighting work that can't happen if immigrants can't report crimes to authorities.

The Texas AG is publicizing a complaint line where "consumers" can call to complain about wire fraud. Obviously, a good number of those folks victimized by such fraud entered this country illegally. Texas is working with Profeco, Mexico's consumer protection agency, to investigate and prosecute these cases. "The money that hardworking families in Texas send abroad is essential to those who receive it," [Abbott] says. "It makes a significant impact in improving the quality of life for millions of people around the world, and I want to make sure that consumers are not the targets of unfair treatment or scams."

That's how I want the state's top law enforcement officer to look at the matter. To allow criminality to flourish because its victims fear to speak up -- in nearly all cases victims who have jobs and families they're supporting, since we're talking about people sending money home -- contributes generally to lawlessness and chaos. This is a situation when we have to make a distinction: Who are the REAL bad guys? Somebody who entered the country illegally but who works, pays taxes, commits no crimes and keeps to himself, or an actual criminal committing wire fraud against lots of people?

In the big picture, as Abbott's comments imply, lots of businesses and families benefit from immigration, legal or not, which is why a lot of Latin American immigrants come here. There's no benefit I can see to letting a crook build a wealthy criminal empire just because he's picked the politically correct victims. That's the biggest risk to localizing immigration enforcement. When Sen. Hutchison proposed her federal legislation, I wrote:
If immigrants think contacting local law enforcement will get them deported, witnesses won't come forward. Worse, victims of crime won't report criminal acts perpetrated against them. Abused wives will fear to call for help. Even children would understandably refrain from reporting incidents of pedophilia or abuse.
The new AG initiative offers a perfect example of that. Obviously, if immigrants believe Gen. Abbott will hand over their information to la migra, nobody's going to call his complaint line. But I wonder if a lot of Minuteman-sympathizing immigration opponents don't think he should do just that?

RELATED: Texas Appleseed has resources online in English and Spanish regarding financial laws and services for immigrants. ALSO: Via Immigration Law Blog, see this NY Times story describing the plight of battered immigrant women who return to their abusers because they can't access victims' services.
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Monday, December 12, 2005

Natapoff on 'snitching' in Slate

Former federal public defender turned Loyola CA law prof Alexandra "Sasha" Natapoff has a new, link-filled piece on Slate today (Dec. 12) called "Bait and Snitch."

I'd written last spring about Natapoff's excellent academic research on the topic.
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The Lessons Tulia Teaches

is the title of an article in the Dec. 19 issue of Newsweek by Ellis Cose. NAACP Legal Defense Fund attorney Vanita Gupta expresses my own view, that "what happened in Tulia happens every day."

"That is not a comforting thought," writes Cose, "but until the war on drugs takes a radical new direction, it will remain an unpleasant reality."

See Grits' past Tulia coverage. UPDATE: A commenter points to this interview with Nate Blakeslee about the Tulia case in The American Prospect.
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Tarrant County Bail Politics Keeps Jail Full

On a Monday, I was arrested.
On Tuesday, they locked me in the jail.
On Wednesday, my trial was attested.
On Thursday they said "guilty"
and the judge's gavel fell.

- Johnny Cash, Stripes Around My Shoulders
Today people sit around awaiting trial for so long in Texas county jails that if the Man in Black had written that song in 2005, the days of the week would have to be changed to names of months. I've argued previously that requiring high bail from low-flight-risk defendants who can't afford it is the main reason Texas' jails are too full. Nowhere is that more true than in Tarrant County (Fort Worth is the county seat), where just 16% of arrestees get out on personal bond, and local bail bondsmen have hired former Texas House Speaker Gib Lewis to pressure county officials to keep it that way.

In the current edition of the Fort Worth Weekly, ("Jailhouse Blues: Who benefits from Tarrant County's flawed pretrial release system?" Dec. 7) reporter Dan McGraw examines this favorite Grits subject. McGraw turned onto the story after spending three days himself in the county jail until he could borrow $5,000 for bail for lapsed child support. He found that many inmates were there because they couldn't make bond for for low-level misdemeanors and non-violent offenses. Most could have been freed, he discovered, if Tarrant County had a more robust system for assigning "personal bonds," which is a promise to the court to appear instead of paying cash to a bonding agent at a private business. Wrote McGraw:
I kept thinking one thing: If Tarrant County is so squeezed for jail beds — in fact, is considering spending $100 million or more on a new jail — then why are all these non-scary guys staying in here so long? Especially since — as I later learned — there is a county program specifically aimed at getting non-violent, low-flight-risk inmates out of jail?

It’s a question that keeps raising its ugly head among judges, elected county officials, criminal defense lawyers, and the bail bond industry in Tarrant County. The program called Tarrant County PreTrial Services (TCPS) uses personal recognizance bonds — which cost $20 or 3 percent of the bond — to get those non-violent misdemeanor and felony inmates out of the jail and off the county room-and-board bill. But even while the county is debating where to build and how much to spend on a new jail, the idea of making better use of the beds doesn’t seem to be part of the discussion.
The failure to use this program has human costs, McGraw noted, as well as financial ones. At the facility where McGraw was incarcerated,
most of the inmates were there on misdemeanor or lower-level felony charges. Actually, those are the things they got arrested for. The reason that most of them, days or weeks or months after the arrest, were still in jail is that they couldn’t make bond. Like the college kid who was in for possession of less than a gram of pot, but because it was his second offense, had had his bond set at $4,000. The bonding companies wanted $1,000 cash in order to put up the $4,000; because he couldn’t swing that, he’d had to drop out of the University of North Texas and had been in the joint for three weeks.
So in this case, a kid had to drop out of school because he couldn't post bond for a tiny amount of pot. Are Tarrant County citizens safer or less safe as a result? Did that help or hurt the economy? (If he doesn't go back to school, the young man's lifelong earning potential, statistically, will be lower.) That's just bad public policy on its face -- requiring high bail ruined this kid's life in a way that's totally out of proportion with the alleged offense.

What's more, there's no evidence that increasing use of personal bonds in Tarrant County would reduce public safety. The failure-to-appear rate for people who pay a bail bondsman in Tarrant is about 16%, McGraw noted, while only 4.5% of those on personal bond failed to show up in court in 2005. The director of Tarrant's pretrial services program, Michelle Brown, said, "Part of the reason for that low number is that we make them come into our offices once a month, or even weekly, depending on the case. Give us a few more staff members and the ability to release a few more people, and the failure-to-appear [rate] won’t change.”

The Tarrant County Commissioners Court, ultimately, is responsible for understaffing the pretrial services division and restricting the agency's access to inmates. "Brown said the Tarrant program is one of the most restrictive in the state. For example, other counties do not limit their program only to their own residents, and many make it available to people with minor prior records," which Tarrant does not.

McGraw's sources also pointed out how excessive use of bonding agents cost the county even more money in indigent defense costs, which have exploded recently in Tarrant compared to other large counties.
Fort Worth criminal defense lawyer Mark Daniel ... said the way pre-trial services is used here wastes millions of dollars in public money. “What we are doing is setting high bonds for people with minor offenses, and then they spend all the money they have to get out,” Daniel said. “The public then has to pay for indigent defense lawyers.” ...

“The absurdity of this situation is more than apparent,” Daniel wrote in a letter to commissioners in May. “Under this system, a person charged with a criminal offense pays a bail bondsman to secure release from jail and then is often left without sufficient resources to retain counsel. The citizens of Tarrant County are then left to foot the bill for court-appointed counsel.”
I was gratified to see Tarrant judges speaking up to support more aggressive use of pretrial services and personal bonds, since as I've argued before, most solutions to jail overcrowding require their cooperation, or at least their acquiescence.
District Judge Daryl Coffey, who handles misdemeanor cases, figures that about 70 percent of the defendants who come before him have gotten bonds from the private sector. “If you have a job and live here, and it is a non-violent offense, and you have ties to the community, you should be out immediately in most cases,” he said. “These people should never even be booked into a jail, but a lot of them are. By the time they get into my court, some have already bonded out, but some haven’t been able to. Those jail beds need to be used efficiently and effectively for people who need to be in jail. The violent offenders need to be in jail with high bonds, because the community needs to be protected. But the rapist costs the same to incarcerate as a hot-check writer.”

District Judge Robert Gill, who handles mostly felony cases, also feels the pre-trial services program needs to be expanded. “We should be using [the program] in a more aggressive way,” Gill said. “I think staffing levels might need to be brought up higher, so that more people can be found who qualify.”
When the judge overseeing these low-level cases thinks most defendants he sees should never have been booked into the jail, it's hard to see the argument for spening $100 million on a new one. So why not at least try expanding pre-trial services instead of saddling taxpayers with all that new debt? McGraw was told the answer is the political clout of the bail bonding agents.
one judge who didn’t want his name used said the power of the bond business is a major part of the problem. “When you are running for office here, and you are perceived as someone who either wants bond reduction or more personal recognizance releases, the bond companies come up with money and force against you,” he said.

“But we need to have a lot of programs that allow people out without bail,” the judge continued. “If we have a DUI case, maybe we can have that person enroll in an alcohol prevention program before they come to trial. That can be part of the pre-trial services release at a low cost. We can have lower-level personal cash bonds — maybe $100 to $250 for a misdemeanor — that the defendants get back when they go to trial. How it works now is that a defendant has to come up with a large amount of bond money to get out, and that is the only thing on their mind at that time. We’re causing hardships for people who don’t deserve it, overcrowding the jails, and the only people making money off this are the bonding agents.” (emphasis added)
That last bit, coming from a judge who is afraid to speak out publicly, tells volumes about the political environment in which these decisions are being made. I hope McGraw's next step is to examine bonding agents' campaign contributions to judges and county officials, including the ones most aggressively shilling for the bondsmen's interests, and to file open records requests to document communications between the bonding agents' lobbyist Gib Lewis and local officials.

Tarrant is still a Republican county, for the most part, but this isn't a partisan issue -- there's nothing conservative about using government institutions to service the bottom line of special interests who make big campaign contributions. Thankfully, some Tarrant County officials are more committed to doing justice and protecting the taxpayer than to carrying political water for the bail bond industry.
Judge Coffey likens the criminal booking process to a hospital emergency room. “If you have one person with a cut finger and another patient suffering from a serious heart attack, the hospital treats them very differently,” Coffey said. “The person with the cut finger gets a bandage and instructions for follow-up care and is sent home. The heart attack patient has to stay in the hospital for his own good.

“So many times in our court system here, we are treating the inmates with minor charges very similarly to the ones with serious charges,” he said. “We have to get better at doing criminal justice triage. I am not for letting serious offenders out. But I am pro-taxpayer on this one. Because of the way this system works right now, we have people being confined to the jail — some for just a few days, others for weeks and months — who are not dangerous and pose no threat to the community. These people show up at a very high rate for their court appearances. We have new ways to monitor them. We need to make the system work, so that people who do not need to be confined are not.”
Thank heavens for Judge Coffey and his judicial brethren quoted in the article -- most politicians (and they're elected judges, after all) would rather take the bail bondsmen's money and go along instead admitting to the public that the emperor wears no clothes. It takes guts for somene who works in the criminal justice system to speak up and say, putting this person in jail won't make us any safer. I'm glad this debate is starting to occur in Tarrant County, or rather, that it's starting to occur in public.

For more on the subject, see these related Grits posts:
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