Sifting the Haystack

Please visit the new blog Sifting The Haystack, created by my dear friend (and sometimes yoga instructor) Tracey Hays. STH aims to separate myths and facts about syringe exchange programs, which if I'm not mistaken gives her a unique niche in the drug policy blogosphere. Say hello and give her some love; she was a little nervous about launching it but I think she's off to a great start.

Pointing to Grits' earlier celebration of National Meth Awareness Day, Tracey points out that 40% of meth users in Texas inject the drug with needles, according to this study of Texas drug use published earlier this year. That's actually an improvement: more than 80% of Texas meth users injected the drug in the '80s, said the same study. Harm reduction techniques like needle exchange in conjunction with treatment programs minimize the public safety impacts of injection drug use, including for meth.

She also has posted a glossary of terms related to syringe exchange programs for those without much background on the subject, which is probably most of us.

Tracey lives in Austin, sits on the board of the Austin Harm Reduction Coalition, and works for ACLU of Texas advocating for drug policy reform. After years of involvement on the subject now at a pretty high level, she's got so much knowledge crammed into her head that, believe me, it's a mitzvah for her to share it. Bookmark this one and check back regularly if needle exchange is an issue you care about.

TPPF working for criminal justice reform

This just tickles me to no end. I'm on the Texas Pubic Policy Foundation email list for their Center for Effective Justice, and just received this update from Center director and past Grits guest blogger Marc Levin with a report on his recent activities:

I hope you had a wonderful Thanksgiving and am pleased to update you on recent developments at the Texas Public Policy Foundation's Center for Effective Justice.

First, we have released a new policy perspective entitled "The Role of Parole in Solving the Texas Prison Crowding Crisis." It is available online here.

Additionally, if you have not already seen it, the criminal justice portion of our 2007-08 Legislative Guide to the Issues is available online here. It contains sections on overcriminalization; drug policy; victims' rights and victim-offender mediation; prison operations and programming; probation, parole, and reentry; and school discipline and juvenile justice.

Also, I testified at the November 14 Sunset Commission hearing on the Texas Department of Criminal Justice. I discussed parole reform, victim-offender mediation, and harnessing the benefits of competition in corrections. The audio of this hearing is available here. It was gratifying that Senator John Whitmire, the Chairman of the Senate Criminal Justice Committee, said after my testimony regarding the work of the Center: "You have done wonders in a short period of time."

I also invite you to check out my commentary "Give taxpayers a break on prison costs," which appeared in the Houston Chronicle on November 5, 2006 and is available online here.

Additionally, I am quoted in this week's San Antonio Express-News story on the bipartisan legislative momentum in Texas for alternatives to new prisons. It is available online here.

Today, EducationNews.org published an interview with me concerning juvenile justice and zero tolerance policies, which is available online here.

Finally, I want to thank you for your ongoing interest in the work of the Center. Your active engagement is vital to our continued efforts to reform the Texas criminal justice system so that we can better protect public safety, restore victims, and reform offenders while minimizing the costs to the taxpayer. As always, I would welcome your comments and suggestions regarding our work.

I wish you and your family the best this holiday season.

Best Regards,

Marc

TPPF is best known as a conservative think tank advocating for lower taxes and school vouchers, but I find myself in agreement with about 97% of what their Center for Effective Justice puts out on criminal justice topics. My theory on why: Things have gotten so screwed up that the critical issues aren't really ideological anymore, they're urgently pragmatic. And viewed from that perspective, the solutions come into much sharper focus.

Good job, Marc. Keep up the good work.

It's National Meth Awareness Day

So be aware.

UPDATE: More from D'Alliance.

End of the Tulia saga?

Texas' 7th Court of Appeals has upheld the conviction of Tom Coleman, the undercover narcotics officer on whose testimony dozens of later-pardoned defendants were sentenced to prison in the notorious Tulia drug stings that received national attention ("Perjury verdict upheld," Amarillo Globe News, Nov. 29).

Here's the opinion and other information about the case. See also daily coverage of Coleman's trial in Lubbock from Grits guest blogger Rev. Alan Bean.

Is this the end of the Tulia saga? So many things have happened as a result of what Tom Coleman did:

• All of the verdicts were overturned and 35 people received Governor's pardons.
• About fifty multi-jurisdictional narcotics task forces were first placed under control of the Texas Department of Public Safety, then lost their funding when many rebelled; nearly all disbanded.
• The Texas Legislature passed a law requiring corroboration for informant testimony in undercover drug stings (provisions to corroborate officers were stripped out in the Senate).
• Certain records about fired officers were made public at Texas' peace officer licensing agency, and agencies were required to check those records before hiring to address the problem of "gypsy cops."
  
• Provisions were created to let innocent convicts in Texas out on bail pending final appeals when prosecutors agree they're not guilty. This law could get even more use now with the proliferation of innocence projects.
• A much-acclaimed book was written on the subject by the reporter who broke the story.
  

It's possible Coleman's final conviction could be the end of the saga. But as I suggested yesterday, Rep. John Conyers, who will soon chair the US House Judiciary Committee, is a co-sponsor of federal "No More Tulias" legislation by Houston Rep. Sheila Jackson-Lee that would require corroboration for testimony in drug cases made with federal grant money.

If Congress picks up the ball on that bill next year when Democrats take power, the magnitude of reaction to Coleman's errors will grow further still, and what began as a pebble tossed into a small pond in West Texas will have grown into quite a wave of change. Really, it already has.

UDPATE: More from Self-Determinatin Radio.org.

NUTHER UPDATE: Not over yet, says ACLU of Texas' Liberty Blog, which notes that not all of the pardoned Tulia defendants have received compensation for their wrongful imprisonment.

Will cities pursue red light cameras if they're not a cash cow?

Austin, Houston and many other Texas towns are quickly moving to begin giving tickets to red lights runners using camera systems. Universally proponents say their goal is safety, not generating revenue, so they shouldn't object to state Sen. John Carona's SB 125 that would take half the money from tickets using cameras and give it to their regional trauma care center.

My guess: Cities would be a lot less interested in installing these things if they didn't view them as a cash cow. (Companies operating the camera systems also take a percentage cut.) Rep. Isett in the House of Representatives wants red light cameras banned altogether. If it's true, as I suspect, that the motive for installing the cameras is money, not safety (they actually increase the number of injury accidents), Sen. Carona's bill might amount to the same thing.

For more information see the recent House Research Organization report and prior Grits coverage on the topic.

Will Democratic House Make "No More Tulias" Legislation More Likely?

With Democrats in control of Congress and Rep. John Conyers chairing the House Judiciary Committee, I wonder if we'll see the "No More Tulias" legislation resurface that Conyers co-sponsored with Houston Congresswoman Sheila Jackson Lee last year? (See prior Grits coverage.)

That bill would require corroboration for undercorver testimony in drug stings using federal grant money, similar to Texas' legislation that required corroboration for informants, signed by Gov. Perry in 2001 after receiving bipartisan support in both chambers.

The "No More Tulias" legislation didn't move when the GOP ran things, so I hope this is one of the pieces of old business they pick back up as the Democrats prepare to seize the reins of power in Congress. One would hope that elevation of one of the bill's co-sponsors to the Judiciary Committee chairmanship would make it more likely to get a hearing.

Texas jail headlines

Here are several recent articles related to overcrowding problems and solutions at Texas jails:

• "County jail facing huge bills for ambulance trips," Dallas Morning News, 11-26

• "County commissioners OK tents for prisoners," Brownsville Herald, 11-29
  

• "County jail report shows problems," Corsicana Daily Sun, 11-14

• "Sheriffs want solution to housing parole violators," Longview News-Journal, 11-24
  

• "Howard County jail fails inspection, must close in two weeks," AP, 11-17
  

• "Sheriff gets $150,000 to send inmates to other counties," Nacogdoches Sentinel, 11-28
  

• "Jail overcrowding eased for now," Kerrville Daily Times, 11-29

• "County pulls plug on state contract for jail," Seguin Gazette-Enterprise, 11-29

Grits for Christmas

Off-topic seasonal fun: The Dallas Morning News' food section has "devised a better way to make grits the star of holiday entertaining."

Because, as we all know, nothing says Christmas like grits!

Unintended consequences: Why the death penalty for repeat child molesters would harm children's safety

Here's another prime example of how "tuff on crime" laws sometimes make us less safe. Charles Kuffner emailed to ask what I thought of legislation by Rep. Debbie Riddle and Sen. Bob Deuell to authorize the death penalty for child molesters on the second offense, even if the victim lives.

I've not had time to go through this or other Texas' sex offender legislation in detail, and I still want to read this report on the subject before doing so, but this one is a no-brainer: It's a terrible bill because it will make child molesters LESS likely to be prosecuted and children LESS safe.

Riddle and Deuell's legislation would harm abused children by encouraging families to conceal what's already a too-often-concealed crime. Most child molesters aren't strangers - they're Daddy, Uncle, Granddad ... part of the family.

Think about it. Will parents of child victims come forward if it means the death sentence for a close relative? When Mom finds Grandad fondling the young'un, will she turn in her own father if it would mean lethal injection? Some would, but fewer than if the penalty were only prison time.

UPDATE: More from Corey Yung at the Sex Crimes Blog, who wrote a law review article on this topic a few years back. Setting aside legal questions, Yung finds four policy arguments against the death penalty for sex crimes: It "creates an incentive for the criminal to kill the victim," "decrease[s] reporting of an already underreported crime," "increases the jury incentive not to convict," and "may be unconstitutional." Thanks, Corey, for that great instant analysis.

NUTHER UPDATE: Doc Berman rounds up links on the subject and points to this law review note that concludes a death sentence for child rape would be "clearly unconstitutional" under the "evolving standards of decency" outlined by the Supreme Court in the Roper and Atkins cases. A Louisiana case currently making its way through the appellate process will likely be the case of first impression for them to make that call, if the Supreme Court chooses to hear it.

Trial by ambush: Lack of pretrial discovery for defense thwarts justice

The lawyers call it "trial by ambush." Unlike many states, Texas criminal law doesn't allow for "discovery" where defense counsel can find out the substance of accusations against their clients before trial. From a well-done report on the topic by KHOU in Houston ("Could you be innocent and still go to jail?," Nov 28):

A prosecutor is supposed to share evidence the courts may have discovered that points to a defendant’s innocence. It’s called “exculpatory evidence.”

But it turns out there’s a problem: Only the prosecutors get to decide what they think is really exculpatory or useful evidence for a defendant. If they don’t think it points toward exoneration, the defense may never see it.

That’s why as a check on prosecutors, many states allow the defense to independently look at the prosecution’s case file through a process called “pretrial discovery.”

But in Texas, 11 News has found that that discovery can be severely limited and even nonexistent in some counties because of the way DAs interpret a state law.

And worried experts say it definitely results in innocent people going to prison.

Some Texas counties, like Tarrant, just copy the file and give the whole thing to defense counsel, just like attorneys in civil court get access to "discovery" to find out what evidence the other side will present. But other counties either won't let lawyers view files at all, or force them to copy files by hand instead of giving out photocopies, or pick and choose which cases they'll share information about and how much.

Even complex lab reports can't be viewed by the defense in Harris County, reports KHOU, often until the expert witness is on the stand at trial. Since the vast majority of cases end in plea bargains, not trials, that means many defendants may be convicted with no one but prosecutors ever having seen forensic or other evidence against them.

What are the consequences of not sharing prosecution files? Obviously the failure to disclose exculpatory evidence might cause innocent people to be convicted. But from anecdotes in the KHOU story, sharing those files would make the whole process run smoother. Here's the story of a poor fellow who was innocent, and Harris County prosecutors had exculpatory evidence in their possession, but his lawyer was never informed:

“What the police had alleged was impossible,” [Gary] Scales' attorney Stacey Bond said. “There was absolutely every kind of evidence that you would want that would demonstrate that the police had made a mistake.”

For example, she points to evidence such as her client being at lunch with three colleagues around the time the dope deal went down.

But Bond said even worse was evidence that pointed to Scales’ innocence was known by the prosecution that she said was never disclosed to her.

Take the man police said was on the other side of the drug deal. Scales said she would eventually discover, “that man said he didn’t know who Gary Scales was and couldn’t identify him.”

But Bond said the Harris County prosecutor never told her about it.

“That information should have been communicated to me as quickly as possible,” Bond said.

In the meantime, Gary Scales had been sitting in jail, unable to make a high bail amount, for three months.

And Bond said because the prosecutor didn’t disclose the other defendant’s statement, Scales “sat in jail for another three months.” Then Harris County dropped the case, still with no mention about the “exculpatory information” in Scales’ favor.

Imagine, six months in jail, and prosecutors knew from the beginning that the main witness - the alleged other participant in a drug transaction - failed to identify Scales as a suspect! Instead of sharing the information, prosecutors just kept mum then dropped the case, but Mr. Scales' won't get those six months of his life back:

There is a giant hole in Gary Scales’ life: “Missed Thanksgiving, Christmas, my wife’s birthday, my anniversary.”

“Basically it was like I was dead for six months,” he said.

Rigor mortis finally proved to guards inmate wasn't "faking"

Perhaps readers recall the horrific case of Charles Billops, Jr. that Grits described recently; he was arrested at 17 in a Dallas suburb for stealing a Playstation and some DVDs, but died of complications from a treatable sinus infection in an adult Texas prison. His family recently settled with the prison system for $250,000, but I hadn't seen this bit of gruesome detail until reading a post at The Back Gate, a blog run by Texas prison guards:

It took a grotesque discovery – rigor mortis – to finally prove to Texas prison medical personnel that young inmate Charles Billops Jr. wasn't faking illness.

A prison guard picked up the ailing teenager's arm, and it remained frozen – in midair. The 17-year-old had died as he was being shuttled from cell to infirmary to psych unit, and his body had become rigid.

Yikes! The kid had to die to prove he wasn't faking it! I thought $250,000 sounded low when the settlement was first announced. I wonder how much a jury would have awarded the family after hearing that story?!

TDCJ officials have said Billops' condition was rare, but I don't see it: he had the sniffles, which turned into a sinus infection. He never saw a doctor and it turned into a more severe sinus infection, which ultimately turned into a brain abcess. I'm no doctor but that sounds like a pretty natural progression to me.

Poor kid - he was only 17 when he died, four months into a 2-year stint in a youthful offender program in Brazoria. I can't say it any better than the guard writing at The Back Gate: "No inmate in Texas prisons should have to pay such a terrible price as a result of falling ill behind bars." No, they shouldn't - but that's the price Charles Billops paid, nonetheless.

Bounty from the blogosphere

A morning tour around the blogosphere yielded several interesting finds:

Improve the Death Penalty? Doc Berman asks: Assuming it won't be abolished, how can the death penalty be improved? Go offer your thoughts, if you have any on the subject. In a similar vein, CrimProf Blog points to an item from the Texas Lawyer declaring Texas' death sentences have dropped 65% in the last years. Any guesses as to why, or given the small numbers is that a statistical blip?

Who is receiving these messages? Berman also poses the question (in response to a Kentucky court ruling), "What's wrong with asking a jury to send a message?," and Eugene Volokh added his thoughts. I agreed with this comment on Berman's blog from Corey Yung: "the chief problem raised by "sending a message"-type arguments by a prosecutor is that those arguments can remove individualization from the sentencing process. Rather than saying the offender should be sentenced for the particulars of his or her crime, the prosecutor is making the defendant accountable for a larger population of potential criminals." Texas prosecutors, btw, do that ALL the time.

Snitches Lie, People Die. Radley Balko over at The Agitator is covering another egregious snitching story: This time officers in Atlanta convinced an informant to falsely declare he'd bought drugs from the home of an 88-year old woman, who was killed in the SWAT raid on her residence. Now the informant says police told him to lie. (Kudos to Balko, btw, on tracking this so closely.)

Capital Blogging. Rep. Aaron Peña looks at alternatives to prison construction in Texas, pointing to this SA Express News article citing bipartisan opposition to more prison building. Also, reacting to this Dallas News clip, Peña laments the death of a young soldier from Reynosa whose funeral he attended last year, recalling the grieving family weeping over the young man's casket. Peña asks, "Would those so quick to take offense at the mere presence of immigrants be as quick to similarly send their child to the killing fields of Iraq?"

The Soccer Mom Conundrum. Over at The Wretched of the Earth we hear details of a possibly illegal search by Dallas police.

That's a Long List. Via Burnt Orange Report, Smarty Pants suggests What's the matter with Texas Democrats?

Sick in Jail. Via the Corrections Community blog I found this new Bureau of Justice Statistics report on medical problems of jail inmates. One in three jail inmates reports a current medical problem. Even more striking: one in eight reported having been injured since entering the jail. About half of women in jail have medical problems, says the report, compared to about a third of men.

We're #1! ... Oh Crap, That's Bad. Also from the Corrections Community blog, see this fact sheet from the National Council on Crime and Delinquency analyzing global incarceration rates. Bottom line: "The US has less than 5% of the world's population but over 23% of the world's incarcerated people." The land of the free, baby ... those statistics are just ridiculous. And as I've mentioned in the past, Texas' incarceration stats are so egregious they actually skew the rest of the nation's.

LTEs support Judge McSpadden's appeal to reduce drug sentences

Two letters to the editor caught my eye last week in the Houston Chronicle - one from a long-time grand juror, another from a drug court supporter working with the religious community. Both wrote to support Judge McSpadden, the hard-line GOP jurist who wants to reduce drug sentences to clear big-city felony dockets (see this prior Grits post). Here's what they had to say:

Let reason prevail

I AM wholeheartedly in support of state Judge Michael McSpadden and the Chronicle's editorial board for their enlightened approach to our "bogged down" legal system in Harris County (see the Chronicle's Nov. 21 editorial "Smarter on crime / It's time for Harris County to heed the message of a tough-on-crime judge about handling of drug cases").

Having served on grand juries since 1997, I have been appalled by the waste of time, money and young lives by our self-righteous system.

Trace elements of any controlled substance are treated as felonious contraband that subjects the holder to be sentenced to a two-year term in our state jails.

I appealed to Harris County years ago for our courts to consider "possession of narcotics paraphernalia" as an alternative — the way it is commonly handled in most of the other 253 jurisdictions in Texas — but to no avail.

The system we have is turning out a whole generation of unemployed thieves because once a person receives a felony conviction, it's near impossible to get a job anywhere. Not many employers want to take a chance on hiring a felon.

The felon feels there no hope of gainful employment, so he or she commits more crime, and the taxpayers end up bearing the burden.

We must move into the 21st century and solve this drug problem. Filling up our jails is obviously not the correct approach.

Perhaps the Legislature will allow reason to prevail in its next session but we can't just keep putting one foot in front of the last one.

BOB RYAN Houston

Drug courts work

SENDING nonviolent drug offenders to state jail for six months to two years further ruins the lives of drug addicts arrested for simple possession. The Chronicle's Nov. 21 editorial was aptly titled "Smarter on crime."

Two years ago, the state of New York reported saving $254 million by sending these individuals to drug courts instead of to jail.

Harris County has established three drug courts, led by Judge Caprice Cosper. They are performing admirably but lack funds for treatment. That's why the Harris County Drug Court Foundation was started up to address this moral issue.

Interfaith Ministries of Greater Houston is helping us reach out to the faith community to help support the drug courts. Selected offenders are receiving three months of residential treatment followed by transitional help.

Those Houstonians who are interested in helping to solve what is really a public health issue — not a criminal justice issue — may contact us.

GABRIEL M. GELB treasurer, Harris County Drug Court Foundation, Houston

"The average TDCJ employee is but a step away from being the next TDCJ inmate"

At the Back Gate, a Texas prison guards' blog, we find the assertion that Texas prisons operate in an:

environment where the average TDCJ employee is but a step away from being the next TDCJ inmate, we have no pride, or work ethic. Harsh, maybe, factual , truly so.

Ouch! That's pretty rough, but it sadly jibes with reports of poor morale, not to mention these arrest statistics. See the rest of Duane Stuart's essay, "TDCJ in 2006: Where did we fail?," which drew several interesting comments from veteran guards.

When tuff on crime is hard on the coffers

I'm playng grandpa/babysitter for baby Ty today, so expect light blogging from me. But while she's napping, in between crying jags, I'll try to sneak one in.

Doc Berman yesterday offered up an array of compelling sentencing headlines that should be instructive for Texas policymakers, particularly this Houston Chronicle clip, "Our lock-em-up justice is a loser," on overcrowding at the Harris County jail that Kuff also explicated.

In addition, given recent campaign-season hype over sex offenders and promises by Sen. Bob Deuell and other Texas legislators to pursue versions of "Jessica's Laws," fiscal conservatives should consider the article Berman mentioned from Kansas City Star (11/26) called "Tough on Crime, It's Hard on Coffers":

This year lawmakers approved Jessica’s Law, a measure sending felons convicted of sex crimes to prison for long stretches. Now, legislators are finding that the price tag could be as much as $192.4 million for additional prison space over the next 10 years. ...

“The bottom line is that the state of Kansas is on a path to incarcerate far more people than we have places to put them,” said Senate Majority Leader Derek Schmidt, an Independence Republican. “We have cast the easy votes over the last decade and now it’s time pay the price.”

The same could be said of Texas - even statutes that lengthen the harshest sentence minimums from 15-25 years, for example, while not changing short-term incarceration rates, contribute significantly to future crises legislators must ultimately manage. When legislators "enhance," or increase the penalty for lower level crimes - from Class A misdemeanors to state jail felonies, for example, or from state jail to 3rd degree felonies - the effect on the budget is much more immediate.

In the past, the Texas Legislative Budget Board has failed to tell legislators the true costs of penalty enhancements they propose, especially when their main impact lies in the out years like Jessica's Laws. I've argued that LBB hasn't always fulfilled its responsibility to portray real short and long-term costs to taxpayers for increased prison sentences; when it's given fiscal notes (cost estimates) of "zero" for significant penalty increases, legislators were able to pretend they were free. In private conversations I've been told that, with a few notable exceptions I'll discuss later, that won't be the case next year now that Texas' prisons are full. We'll certainly find out soon enough.

Kansas passed Jessica's Law first, then realized afterward that it would swamp prison capacity and soak taxpayers. Texas should already know better - our understaffed prison system is 1,900 beds over capacity right now. That number will climb to 11,000 in just a few years with penalties as they are. In 2005, the Legislature decided to slow down this trend; they should continue to reject sentence increases in the 80th session.

In today's budgetary climate, passing more penalty enhancements in Texas without accounting for how to pay for them makes little sense. It's sure not fiscal conservatism. I'm not certain it's any kind of conservatism at all.

Affiant's signature a technicality for search warrants

... said the Texas Court of Criminal Appeals in a case of first impression, via the Texas Law Blog. Said the Court:

"the failure to sign a search warrant affidavit does not, by itself, invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate."

All you PDs and criminal defense lawyers out there, what do you think? How important is that witness' signature on the affidavit verifying "probable cause" to conduct a search, and what are the potential consequences, if any, of not requiring it?

UPDATE: DallasBlog mentioned the case and asked, "Is this a reasonable way to address a technicality by which bad guys get off, or a trampling of rights?"

MORE: See The Wretched of the Earth's weekly CCA Update on this case.

Gilbert Amezquita gets early Christmas present from CCA

Lots of great stuff coming out of the blog at the StandDown Texas Project, but especially Steve Hall's terrific coverage of the Gilbert Amezquita case, a man sentenced to 15 years in prison based on apparently faulty eyewitness testimony.

The Texas Court of Criminal Appeals voted 5-4 on Wednesday to order either a new trial or Mr. Amezquita's release. This is another black eye for Harris County DA Chuck Rosenthal, who says his team will meet next week to discuss what to do. In an unusual move, the CCA ruled against Amezquita's original appeal, but ordered his retrial two weeks later based on its own motion. Who knows what back room machinations at the court were behind that unlikely turnaround?

From Hall: "First, here is the Court's opinion, written by Judge Johnson. She was joined by Judges Price, Womack, Holcomb, and Cochran (who also wrote a concurring opinion.) Judge Hervey's dissent was joined by Presiding Judge Keller and Judges Meyers and Keasler."

Hall's blog was cited directly as a source in Steve McVicker's Houston Chronicle coverage. Good job! Stand Down has been doling out great material lately, doing an especially good job with death penalty and innocence cases coming before the Texas appellate courts.

UPDATE: More from Wretched of the Earth's weekly CCA Update.

Expect thousands more bills to be filed at Texas Lege

Now that bill filing season has begun at the Texas Legislature, how many bills should we expect, and how many will become law?

In 2005 during the 79th regular session, a combined total 5,484 bills were filed in the Texas Legislature in both chambers, not including various "resolutions." There were 3,592 bills filed in the House and 1,892 in the Senate. Overall, about 1/4 of them passed: 1,389 pieces of legislation, 19 of which were vetoed. (The Governor vetoed more bills after previous sessions: 48 in 2003 and 82 in 2001).

Bills may be filed anytime between now and mid-March. "Pre-filing" before the session begins in January offers a chance for early publicity, but doesn't necessarily make a bill more likely to pass.

With only 31 senators and 150 House members, you'd expect senators' bills would be a lot more likely to get through the process. That turns out to be marginally true - about 24% of House members' bills passed into law, and 27% of senate bills. OTOH, with nearly 2,000 more bills filed in the lower chamber, that's a lot of dead legislation lying around the battlefield by the end of the 140-day biennial legislative session.

In my experience, a bill's passage often depends more on the legislative skill of the bill author than the content of the legislation - certainly that's true of the originally filed language. Some members know how to pass bills. Many don't. It's a lot of work to get a piece of legislation that's worth a damn all the way through the process. It's much easier to pass a piece of compromised junk, which is mostly why the laws are written the way they are.

The legislative process in Texas in many ways is designed to kill bills or severely compromise them, not pass them - at least when vocal, focused opposition surfaces against legislation. For the most part, given the content of many of these proposals, that's a good thing. Many that do pass are minimalist changes - tweaks rather than significant alterations to the law. Often bills transform dramatically during the process, for good or ill, so it's very difficult to identify at this point which few will be both a) truly signficant and b) have a chance to pass. All you can do for now is keep your eyes peeled.

It's still early in the game, but the game is on. See Grits' earlier coverage of pre-filed bills.

Have you heard of the Freethinkers?

I'll be out of pocket for another day or so. Lots going on this evening, then tomorrow Kathy and I are heading to Comfort, Texas for a day of shopping at a trades day in that small town off of I-10 west of San Antonio.

I find that few people know about tiny Comfort's history as home of the Freethinkers, an atheist movement from Germany whose adherents were expelled after the 1848 Revolutions in Europe, and many of whom settled in Texas. Today Comfort is a red part of a red state, religious, conservative and proud of it. But behind the present-day facade of rural conservatism lies an interesting, little-known history:

Tens of thousands of European immigrants entered Texas through the port at Galveston, and many towns in central Texas to this day have German names - Boerne, New Braunfels, Pflugerville, come to mind. Until World War I that German heritage was proudly displayed. (There are also quite a few Czechs going back, as well.) But after two wars fought against Germany, Texans of Germanic descent began to conceal their heritage, even altering their surnames in some cases to avoid being identified with America's military foes. Even so, my father has told me that in college in the late '50s he knew a student at UT-Austin from one of these small Hill Country towns whose family still spoke German in the home.

Comfort was one of those German outposts, but its founders were essentially radical leftists exiled from their home country for political reaons. Comfort banned churches outright for many decades. It was a hotbed of abolitionism and pro-Union sentiment during the Civil War and lost many young men when they tried to send troops north to join the Union Army. Not much of that that history evident in the town today. But it's a fascinating and important piece of Texas' heritage, nonetheless, even if a seldom-acknowledged one.

HRO studies sex offenders, immigration, red light cameras as session approaches

Most people who even know about the Texas House Research Organization think of their he-said/she-said analyses of bills published before legislation is voted on by the full Texas House. Over the years, HRO's bill analyses have become important facets of debates on nearly all Texas legislation - frequently they're the primary source of information members have, besides lobbyists, on legislation coming before them.

During the "interim" when the Lege isn't in session, HRO produces more in-depth reports on subjects predicted to spark significant legislation. Three such reports released this year by HRO address issues routinely covered on Grits for Breakfast that will be hotly debated during the 80th Texas Legislature:

• Should Texas Change Its Laws Dealing With Sex Offenders?
  

• Red-light Cameras in Texas: A Status Report
  

• The Role of States in Immigration Enforcement

Everyone interested in these topics as the Texas Lege approaches should consider these "must reads." After enduring a pitifully ill-informed debate on the subject of red light cameras at the Austin City Council, I wish I'd noticed the red light camera report sooner. Austin city councilmembers disputed as "not substantive" safety issues prominently raised both in the HRO report and in past legislative hearings on the topic. (Of course, councilmembers had already made up their minds before the issue was debated publicly - they all had dollar signs in their eyes.)

I should offer special kudos to Kellie Dworaczyk who authored the immigration and sex offender reports - her work over the years, to my mind, has contributed more to the understanding of complicated criminal justice issues in Texas than any newspaper reporter I can name. Dworaczyk has been doing this quite a while now; she routinely takes on the most difficult, hot-button issues and handles them with aplomb.

Actually, I admire the work of the folks at the House Research Organization more than I can tell you: It's nearly always of very high quality, even bill analyses produced at the height of session when everybody's under a trememdous time crunch. Even more impressive: They seldom fail to tell legislators the most important parts of the story - the parts they DON'T want to hear. How many government agencies can you say that about?

Happy Thanksgiving, folks: Open thread

That's it for Grits for now, at least until after the holiday and probably until sometime after the UT Longhorn football team whips the Texas Aggies on Friday, if I had to guess.

Consider this an open thread: Tell me what's going on in your neck of the woods, or what you think Grits should be focusing on as the 80th Texas Legislature approaches. Also, don't forget I'm still looking for intel on possible 5th Circuit nominees to fill Texas' two open spots, just add your observations to this post.

I hope Turkey day finds you happy and well.

OFF-TOPIC UPDATE (BUT FUN): As the holiday season formally sets in, let me refer readers to a short video my wife produced for the nonprofit group Consumers Union, "It's Always Christmastime for Visa," featuring music by the Austin Lounge Lizards and video by Austin's Animation Farm. They're using it to promote legislation in Congress restricting usurious credit card rates. Watch it - it's really funny, IMO - then do the missus a favor and join the 25,000+ people who've already sent messages to Congress.

Happy Thanksgiving, folks.

The Role of Parole in Solving the Texas Prison Crowding Crisis

... is the name of a new report (pdf) by Marc Levin of the Texas Public Policy Foundation. I haven't had a chance to read it yet, but Marc handed out a draft copy to the Sunset Advisory Commission last week, and DallasBlog recommended it. Those interested should check it out.

After the tongue lashing they received at the Sunset Commission, perhaps the Texas parole board is in the mood to listen to outside advice.

Texas crime stats show bigger isn't always better in corrections policy

Sometimes more is less: Like when incarcerating more people makes us less safe.

According to the National Institute of Corrections, Texas has the nation's largest corrections population, by far, but also among the highest per capita crime rates among states (6th highest, according to the NIC). That's just what we were shooting for, right?

See more at this interesting page of Texas statistics (2004) from the National Institute of Corrections. Some highlights:

The crime rate for the state of Texas is 23.41% higher than the national average. There are 738,000 adults under correctional supervision (prisons, jails, probation, and parole) in Texas and the correctional supervision rate (number of offenders supervised per 100,000) is 34.87% higher than the national average.

By comparison with another big state, check out New York's stats - crime rates half the national average, miniscule incarceration rates compared to Texas, and a much smaller population on probation.

It makes you wonder, is Texas' lock-em-up approach really making Texans safer? These stats say "no."

Go here for data from all 50 states.

TDCJ Data: 70,000 Texans on probation for lowest level drug crimes

Is Texas wasting community supervision resources by focusing probation officers' attention on tens of thousands of petty drug offenders instead of more dangerous criminals?

It looks that way to me. Texas supervises 153,127 probationers for drug crimes alone, according to data obtained by the Texas Public Policy Foundation from the Department of Criminal Justice. TDCJ supervises maybe 300,000 more probationers for non-drug-related crimes.

Thanks to Marc Levin for forwarding this spreadsheet (xls) which TCDCJ compiled at TPPF's request. It breaks down the number people on probation for drug offenses in Texas by offense category. If I'm reading this right, almost 40,000 people in Texas (39,847, to be exact) are on probation for possession of less than two ounces of marijuana. That's a ridiculous waste of P.O.'s time when repesat DWI offenders aren't being adequately supervised.

Another 31,000+ are on probation for possession of less than a gram of cocaine - a smaller amount than in a sugar packet in a restaurant. In Harris County, even people caught with paraphernalia containing trace, unusable amounts of a drug, e.g., on a crack pipe, are hit with felony <1 gram possession charges.

Shortening and strengthening probation for these two categories of offenders alone would affect almost 70,000 probationers - a huge number. If probation officers didn't have to handle as many of these petty cases, would they do a better job supervising more dangerous criminals? I think so, but there's only one way to find out. Try it: Reduce probation caseloads, shorten probation lengths, and strengthen probation through graduated sanctions and enhanced programming to give offenders a chance to earn their way off supervision through good behavior.

Take a look at the data for yourself and see what jumps out at you. I've only had time to take a cursory glance, but I've not seen these stats before and it looks like they may provide fodder for further useful analysis.

Preventing wrongful convictions: CA Commission suggests improvements to prevent jailing innocents

The recommendations from California's Commission on the Fair Administration of Justice on preventing informant abuses didn't come out yesterday as promised, but they have posted recommendations on eyewitness identification and preventing false confessions.

On eyewitness testimony they focused on improving photo lineup procedures, which I agree is a good idea. But the Commission avoided mention of what I think is the most important preventive for wrongful idenfitications: Requiring corroboration for eyewitnesses when they did not previously know the defendant.

On preventing false confessions, the Commission's recommendation was much stronger: Requiring audio-video recording of custodial interrogations for serious felonies, and specific training for police detectives on the causes of false confessions and how to avoid them.

Good stuff. California's Commission is doing a lot better job addressing these issues, to my mind, than the similar body appointed in Texas by Governor Perry. Check back here now and again for more CA recommendations as they come out.

UPDATE: Okay, here are CA's recommendations regarding informants. Bottom line, the Commission recommended requiring corroboration for jailhouse informants, but not other classes of snitches like those in drug cases. According to the Commission, 17 states require corroboration for jailhouse informants. Texas requires corroboration for informants in drug cases, but not for in-custody informants in other types of cases.

NUTHER UPDATE: CrimProf Blog points to the LA Times coverage.

'Round the bloggerhood

Some legislative and non-lege-related stuff I saw today around the bloggerhood that may interest Grits readers:

• Capitol Annex has had great legislative coverage since bill filing started at the Texas Legislature.
• Eileen can't keep track of who we're supposed to hate this week, and suggests that anti-immigrant bills in the headlines have transformed Texas into The State That Everyone Makes Fun Of. To be fair, some folks made fun of us before that.
  
• South Texas Chisme doesn't like several bills by Frank Corte, though I'd praised one of Corte's bills (Not on STC's list) in this post.
• The Wretched of the Earth says the change in political winds in Dallas also affected the public defender office. In fact, Wretched has a lot of good stuff up; just go there, start reading, and scroll down the page.
• Austin Criminal Defense Lawyer tries to make sense of pro-drug war thinking.
• Mike Cope and his commenters over at Preacher Mike discussed the Farmers Branch anti-immigrant ordinances: "While some focus on keeping illegal aliens out," he wrote, "I love hearing of churches that are figuring ways to care for them and to draw them into community: providing basic needs, language assistance, teaching, and friendship."
  
• Larry James gave another religious perspective on the Farmers Branch controversy, recalling the stern warning in Deut. 27:19, "God's curse on anyone who deprives foreigners ... of their rights."
  
• Doc Berman discusses technological solutions to drunk driving and the realities of mass US incarceration.
• Bruce Schneier says new passports with RFIDS are less reliable than the old ones. The old bar code works better. So why are they switching again?
• Burnt Orange Report points out an interesting history piece in the current issue of The Texas Observer, "The Spies of Texas," documenting police infiltration of dissident groups at UT-Austin in the '60s.
  
• Finally, speaking of UT, on Huevos Rancheros today I mentioned that most issues of Polemicist, a student magazine I co-founded while attending UT-Austin in 1989, have been put online by the student group UT-Watch. I'm flattered they'd go to the trouble.
  

Operation Linebacker targeting immigrants, not crooks

I have to say, I've suspected as much:

Via Capitol Annex I ran across this excellent El Paso Times investigative report by Brandi Grissom. She crunched the data and found "border sheriffs are using federal dollars meant to fight drugs and violent crime to enforce federal immigration laws." For every one arrest made, she found, sheriffs' departments receiving Operation Linebacker funds reported seven suspected illegal immigrants to the US Border Patrol.

Great reporting job, Ms. Grissom. Operation Linebacker is the name of Governor Perry's election-year block grant program giving money to 16 local sheriffs departments along the Texas-Mexico border. I've actually been hoping someone would do this analysis; it just took a reporter willing to file some open records requests and do a bunch of grunt work. I'd encourage anyone interested in the subject to read the whole thing.

I've argued that those federal grant funds or any new border enforcement money should go first toward investigating police corruption before expanding patrols through short-term overtime. All the extra patrols in the world don't help if the supervisor directs them away from the drug loads. During the gubernatorial campaign it was revealed that claimed reductions in border crime were mostly statistical hoakum.

Aiming local law enforcement funds at immigrants instead of drug smuggling outfits at the border makes little sense - IMO it was an example of bad, hopefully tranistory election-year policy that the Governor won't continue ad infinitum. These data show the sheriffs' current use of Operation Linebacker funds is focusing very little on crime and mostly on immigrants. Grissom's analysis gives the Governor and the Legislature a fine excuse to shift grant money and other new border security fundstoward tracking down corruption and targeting drug cartels.

UPDATE: Via South Texas Chisme, the Laredo Morning Times followed up:

The Webb County Sheriff’s Department captured more than 700 undocumented immigrants and made 18 drug arrests in the first six months of Operation Linebacker, a state and federally funded program intended to bolster security and combat drug activity, violence and terrorism along the Texas-Mexico border.“We have 18 drug arrests and 700-something illegal immigrants?” said an incredulous County Judge Louis Bruni after hearing about the report.

BLOGVERSATION: Infamy or Praise offers thoughts on the Times analysis. So does Borderland Observer. Rio Maginot decries the dropoff in church attendance caused by the tightened border.

Natapoff: snitching can be "crime producing and corrupting"; CA snitch recommendations due out today

For those interested in the subject of "snitching," a recurring Grits topic, read Loyola (CA) law prof Sasha Natapoff's op ed from yesterday's San Francisco Chronicle. Here's a snippet:

When used properly, informants can be a powerful and appropriate investigative tool. But they can also be destructive, crime-producing and corrupting. The widespread use of informants means that much of the real adjudicative process takes place underground, without rules, records or lawyers, and without public or judicial scrutiny of the fairness and accuracy of the process.

Good stuff, as always. Natapoff points to new reform proposals on snitching due out today. "The California Commission on the Fair Administration of Justice will release its report and recommendations on the government's use of criminal informants by 5 p.m., Monday, Nov. 20. Go to: www.ccfaj.org/rr-use-expert.html." Good tip! Indeed, there's already quite a bit of interesting looking material at that link I haven't seen.

If any Texas legislators or staff are looking for good bills to file, Texas has a lot of these same problems. For more background, see prior Grits posts on snitching and the November Coalition's resource page on the topic.

House Corrections Chairman: 80th Texas Legislature should 'reduce the number of prisoners,' build new treatment beds

I'd forwarded Grits' recent summary of Texas criminal justice legislation around to a few key folks including House Corrections Committee Chairman Jerry Madden's office, and received this nice reply from the chairman himself updating us on current plans for managing Texas' overincarceration crisis:

Scott,

Thank you. We are working on a lot of major bills for the coming session particularly in the areas of probation, parole and Chapter 37 of the Education Code legislation to improve the Alternative Education. Just FYI we have found some very interesting programs we are going to be supporting this session that we hope reduce the number of prisoners and eliminate the need for prison beds. The exception on the building of beds is that we support the expansion of the SAFP [drug treatment] beds and believe we should have more than are in the current recommendation from TDCJ and we do support the added Alcohol treatment beds which is one of the reasons we have refiled the expansion of private facilities bill. Also that would keep some people from being sent to county facilities when we have existing space at existing facilities. Also the recommendation for adding beds to current facilities for treatment programs at TDCJ is really needed.

Also you might look at the latest parole rates and if they keep up we will have to get new estimates on future needs of beds that will drop significantly from the current estimates.

Jerry Madden

Thanks, Chairman! That's particularly good news about the parole rates. In the big picture, the criminal justice system is like an organic beast with a lot of moving parts. When prisons are too full, there are many ways to skin that particular beast: On the front end with shorter, stronger probation and progressive sanctions for technical violations; in prison with programs aimed at educating prisoners, preparing them for work and reducing recidivism by keeping them connected to their families; but also on the back end by paroling nonviolent offenders to make way for those who've committed more serious crimes.

I focus a lot on the front end and in-prison programming on Grits because that's what state and local officials can control. But if the parole board would do a better job on the back end - really just meeting its own guidelines for low-level offenders - they could easily solve the short-term crisis. After the tongue-lashing they received at the Sunset hearing last week, maybe they got the message.

Also interesting to me was the chairman's linkage of the DWI treatment beds proposed by TDCJ to his legislation that would expand private prison capacity. That'll be something to watch. I certainly don't oppose renting beds as a stop-gap measure, but not as a long-term solution. That's a terrible deal for the taxpayers: It's just like the difference between renting an apartment and buying a house - in the short-term the apartment might be cheaper and less hassle, but in the long-run financially you're a lot better off if you buy. The same is true for prison beds. If you need them, issue bonds and pay to build them; if you can find ways to avoid it, though (we've got 106 units already, for heaven's sake, and can't staff them), taxpayers are better off still. My preference would be to convert current beds to treatment beds, and not build any new units at all - along with strengthening probation, Judge McSpadden and the Texas Public Policy Foundation have suggested ways that could be done.

I certainly understand the chairman's position, though. Madden did a good job last year running the Corrections Committee, succeeding one of my old campaign clients, Ray Allen, as chairman. But Governor Perry vetoed his most important legislative effort to stem overincarceration pressures. Now, thanks to Gov. Perry, the Lege must do some fancy footwork to ensure prisoners don't wind up sleeping on the floors in Texas prisons just like they are in the Harris County jail.

Good luck this session, Chairman Madden, you'll probably need it! And thanks for the note.

Death sentence for stealing a PlayStation: Texas prison healthcare problems not 'unusual'

Charles Billops, Jr. went to prison at age 17 for stealing a PlayStation and some DVDs from a house in Cedar Hill, a Dallas-Fort Worth suburb. But his stint in the Youthful Offender Program at the Clemens Unit in Brazoria wasn't supposed to be a death sentence.

Even so, that's what it turned out to be.

The state of Texas recently settled a civil lawsuit in response to claims by Billops' family that Charles failed to receive proper medical treatment before he died--from an undiagnosed brain abscess due to a sinus infection--in prison custody. The state will pay $250,000 to compensate for his 2003 death, reported the Dallas News ("Inmate's death: 'Terribly wrong' or 'very unusual?'," Nov. 18), but does not acknowledge any fault.

That may have settled this case, but I wouldn't be surprised to see more such "unusual" cases in the future.

The other day I listened to state officials testifying before the Texas Sunset Advisory Commission that the state was "very close" to providing an unconstitutionally poor level of care to prison inmates. Witnesses and legislators discussed the state's "telemedicine" program, where doctors see inmate patients by video, letting them describe or show their symptoms but not allowing for a full examination. Prison doctors see 60 patients in eight hours using telemedicine systems, sometimes from 4 a.m. to noon, witnesses told the commission.

So let's think about that. At most, assuming docs take no bathroom or meal breaks, and with zero time between prisoners, that would mean prison docs using telemedicine systems spend 8 minutes per patient. Since all that is unrealistic, with 15 minutes per hour for restroom breaks, meal breaks, and time transferring from one to another prisoner, medical visits are likely to be more like 7 minutes long. And your workday, for the doc, starts at 4 a.m.?! Who would want that job?

Sen. Bob Deuell from East Texas, who is a medical doctor, sounded skeptical of the telemedicine system. He questioned during the Sunset hearing how high the quality of care could be for patients who only saw their doctor that short a time and only over a video feed.

To be clear, Mr. Billops' care wasn't shortchanged because of telemedicine. Indeed, telemedicine would have been an upgrade in his case. Even though he "lost 52 pounds in less than 100 days in prison," reported the News, he "never saw a doctor." Still, his story seems to fit into the pattern of minimalist care described in the hearing as common practice for Texas prisons.

California's prison health system last year was essentially put into receivership under direct control of a federal court due to its poor medical care, witnesses told the Commission, and officials expressed fears at the Sunset hearing that Texas might be subject to similar litigation. This case makes you understand why.

Charles Billops, Jr. would be 21 years old if he were alive today, with his whole life ahead of him. Nothing about his juvenile crimes justifies what happened to him once he was in the state's custody. His death should be a wake-up call for the state, and certainly for the 80th Legislature.

Houston Judge to Rick Perry: Cut drug sentences to let felony courts focus on violent crime

It's not quite "Man Bites Dog," but a Republican state district judge in Houston this week called for Governor Perry and the Texas Legislature to reduce drug sentences. Reported Bill Murphy in the Houston Chronicle ("Judge calls for easing of drug penalty," Nov. 19):

State District Judge Michael McSpadden once believed that long sentences would deter drug sales and drug use.

But after more than two decades hearing felony cases in Harris County, the former prosecutor is calling on the governor and Legislature to reduce sentences for low-level drug possession.

"These minor offenses are now overwhelming every felony docket, and the courts necessarily spend less time on the more important, violent crimes," he recently wrote to Gov. Rick Perry.

Nearly twice as many defendants in Harris County were sent to state jails last year for possessing less than 1 gram of a drug than in Dallas, Tarrant and Bexar counties combined.

McSpadden recommended making delivering or possessing a small amount of drugs a Class A misdemeanor carrying no more than a year in county jail.

Gov. Rick Perry is aware that bills may be submitted in the upcoming legislative session that call for reducing penalties for possessing small amounts of drugs or drug residue, said Kathy Walt, the governor's spokeswoman.

"He is willing to look at anything that the Legislature presents him, and he wants to hear the debate in the Legislature about the pros and cons of the issue," she said.

The judge said the Houston Police Department and District Attorney's Office are clogging court dockets and causing crowding in the county jail and state jails by bringing so many drug-possession cases against those found with pipe residue or a sugar packet's worth of cocaine.

Interestingly, McSpadden's not alone on the right. His position is also supported by the Texas Public Policy Foundation, a conservative think tank best known for supporting school vouchers and lower taxes.

I would have expected Harris County District Attorney Chuck Rosenthal to come out more strongly on the proposal, but he basically told the Chronicle his office would enforce the laws however they were written. That said, IMO he's being a bit disingenuous, and it's likely he would oppose the change behind the scenes. Rosenthal's office presently charges people with felonies even when there is only residue on a crack pipe, for example - a circumstance that in other jurisdictions would only warrant a misdemeanor charge. McSpadden thinks Harris County prosecutors are overcharging in these cases based on a technicality. Reported Murphy:

Those caught with crack pipes should be charged with possession of drug paraphernalia, a Class A C misdemeanor — not drug possession, McSpadden said. People convicted of carrying crack pipes can be fined $500 and put on probation.

Possession of less than 1 gram of a drug is a felony that often lands people in state jail for six months to two years.

I'll bet a lot of other district judges, who see these cases every day, agree with McSpadden's analysis; I hope they follow his example and speak up. Judge McSpadden doesn't support decriminalizing drugs, just rationalizing the punishment to fit the crime. He took the same stance in each of the last two legislative sessions, and since then the problems he describes have only worsened.

UPDATE: More from attorney Tom Kirkendall at Houston's Clear Thinkers, who calls McSpadden "one of the formerly toughest sentencing judges in the Harris County District Courts" and concludes that "harsh sentences meted out in Texas and much of the rest of the US over minor drug offenses and the like is a national disgrace."

I don't know why you say 'goodbye,' I say 'hello'

The Capitol Crowd has compiled the complete list of who's new and who's out at the Texas Legislature. There are 21 new faces in the Texas House for the 80th session, and five new senators.

I'm especially going to miss Suzanna Hupp, Pete Laney, and even Terry Keel. Some of the others, not so much. (Yes, Al Edwards, we're talking about YOU.)

Capitol Crowd also reports that retirng Austin state senator Gonzalo Barrientos will celebrate his pending departure with friends and supporters at a big retirement party and dance Dec. 15 at Palmer Auditorium. Gonzalo been my state senator for more than 20 years, so Hasta la vista, Senador, y buena suerte!

Request for reader assistance: What do you know about these potential 5th Circuit nominees?

After noting bloggerly speculation about who Bush would appoint to fill vacancies on the federal 5th Circuit Court of Appeals, I'd like to request a little help from Grits readers. Find below the list of possible picks for two vacant Texas seats on the Fifth Circuit Court of Appeals (which covers Texas, Louisiana and Mississippi) according to David Lat from Above the Law. The four he deems most likely are:

Justice George C. Hanks, Jr., an African-American judge on the First Court of Appeals.

Judge Sidney A. Fitzwater a Reagan appointee to the federal trial bench, TX Northern District.

Judge Jennifer W. Elrod, a Harris County civil district judge.

Gregory S. Coleman, a partner in the Austin office of Weil, Gotshal & Manges.

Lat also suggests several dark horse candidates for the open Texas seats, including:

Judge David Godbey federal trial judge, TX Northern District;

Judge Jane Boyle Federal trial judge, TX Northern District;

Judge Lee H. Rosenthal Federal trial judge, TX Southern District, and a woman);

Chief Justice Wallace Jefferson, of the Texas Supreme Court;

Justice Jane Bland, of the Texas First Court of Appeals;

Texas Solicitor General R. Ted Cruz; and

Professor Ernest A. Young, of the University of Texas School of Law (Austin).

I don't know anything about any of these people save for snippets about Jefferson and Cruz, but I suspect some Grits readers might. So tell me: What do readers know about these potential 5th Circuit picks from Texas that Senate Democrats ought to consider in their deliberations? (Attorneys feel free to use the anonymous comments function on this one if you're afraid of revealing dope on judges before whom you practice, but citations are always nice!)

Just to get the ball rolling, Lat says Fitzwater may have trouble with Dems because of a political incident from his youth that made national headlines, where he distributed flyers aimed at suppressing voter turnout in predominantly black South Dallas neighborhoods.

Sid Fitzwater was questioned about the alleged voter intimidation during his confirmation hearing, where he apologized, saying he "did not study the signs and drew no conclusions from the fact that he was asked to place them only in Black areas of South Dallas."

(Source: Howard Kurtz, Two Judicial Choices Assailed; Liberals Say Both Have Tried to Impede Minority Voting, The Washington Post, 5 Feb. 1986, A4; Judy Wiessler, Judicial Nominee Defends Activities of 1982 Election, Houston Chronicle, 6 Feb. 1986, 1-3.)

Yes, I suspect that might give some Democrats pause! Hard to believe that fellow made it through the confirmation hearings the first time, huh?

So tell me readers, what else do you got? I don't just mean scandals - how would they be on the 4th Amendment, on reproductive rights cases, on the death penalty cases where the 5th Circuit and the Texas CCA keep getting bench slapped by the Supremes? What kind of lifetime federal appellate judges would these people make?

Come on ... I've been around lawyers my whole life and I know attorneys LOVE to gossip. Use the comments, anonymously if you like, and let me know what you know about these judges, or email me if you prefer.

What will a Democratic Senate mean for Bush's 5th Circuit Appointments?

For you appellate lawyers out there via Tom Kirkendall, here's some interesting scuttelbut on possible nominations to the 5th Circuit Court of Appeals from Above the Law. Meanwhile, via Howard Bashman, John Council at the Texas Lawyer has more on the same subject.

It's not just the 5th Circuit; the switch to Democratic control of the US Senate could force President Bush to disavow his more radical judicial nominees and seek consensus with Senate Democrats on many judicial appointments.

Texas criminal justice legislation to watch

Several bloggers including In the Pink Texas, DallasBlog, and Capitol Annex have been doing a good job of working through the hundreds of bills pre-filed so far at the 80th Texas Legislature, and I've mentioned a couple of good bills so far I liked. But I thought I'd run through a few more of the potentially important pieces of criminal-justice legislation that I haven't seen discussed. I'm going to leave analysis of (most) penalty enhancements and also sex offender statutes for later posts, but here are some highlights so far:

Prison overcrowding solutions proposed: Rep. Richard Raymond and House Corrections Chairman Jerry Madden foresee different solutions to Texas' prison overcrowding crisis if policy changes can't be constructed to reduce the flood of nonviolent offenders into the system. Raymond has proposed HB 168 which would set standards for when and how the state should rent county jail beds in case the need arises for more overflow bunks. TDCJ right now contracts for around 1,900 beds in five Texas county jails, the Sunset Advisory Committee was told this week, to handle the current overincarceration crisis. By contrast, Chairman Madden's HB 198 would increase TDCJ's capacity to contract with private prison operators to handle anticipated growth in inmate numbers. Personally I'd like to see Texas make policy changes that would make renting or building more prison beds unnecessary. I still harbor hope the Lege may still go that route.

Good bills worthy of support:

Returning guns to owners during a disaster: Frank Corte's HB 258 would require law enforcement officers during a natural disaster to seize weapons when they detain someone, but orders them to return the firearms if either the person is not arrested or the weapon is needed as part of a criminal investigation. This is obviously a response to police confiscating handguns in New Orleans after Katrina. Good bill. Sen. John Carona is carrying the companion bill SB 112 in the Senate.

Improving care for infants born in prison. House Corrections Chairman Jerry Madden filed HB 199 would require the Department of Criminal Justice to "implement a residential infant care and parenting program for mothers who are confined by the department. To the extent practicable, the department shall model the program after the Federal Bureau of Prisons ’ Mothers and Infants Together program operated under contract in Fort Worth"

Better phone access for prisoners. Apropos of recent discussions on Grits about ways to stem cell phone smuggling into prisons, Rep. Terri Hodge has filed HB 43 which would require TDJC to solicity a private contractor to implement a secure, monitored pay phone system that prisoners could access more easily.

ID Texas. The feds have passed the "Real ID Act," but it's not a "real" ID if more than million state residents can't get one. In case of disasters or when police need to find crime victims or witnesses, the lack of information about non-citizen residents creates real public safety threats. HB 256 by Alonzo would expand the range of documents allowable to get a Texas drivers license or ID card to include documents from foreign countries that meet minimum standards of reliability set by the Department of Public Safety.

And of course, some bad bills:

Hey, teacher, leave those kids alone. HB 104 by Debbie Riddle and HB 141 by Jim Jackson would deny in-state tuition to non-citizen immigrant kids who grew up in Texas and graduated in Texas high schools. This just seems mean-spirited to me. Those kids didn't choose to come here - their parents brought them. But they graduated from Texas high schools, will likely live here as adults, and it's a foolish waste of human capital to deny them an education.

If at first you don't succeed. Dan Branch (HB 79), Vicki Truitt (HB 128) and Robert Anchia (HB 267) have all filed bills that would boost penalties for the crime of burglary of a vehicle from a Class A misdemeanor to a state jail felony (Anchia's bill would do so only on the second offense). This crime isn't stealing a car, but stealing something out of it, from the car stereo to CDs lying in the seat. It was a big battle last year, and the sentence enhancers who lost obviously are coming back for another try. This would shift costs from counties to state government because misdemeanants serve their sentences in county jails, while enhancing the penalties would send offenders to "state jails" which are state-financed prison units for low-level felons.

Tent city, here I come. Rep. Phil King (HB 221) wants to let counties establish permanent tent cities as jails. I've discussed this before: There's a reasons jails have walls.

Limiting judges' and juries' discretion. Sen. Shapiro (SB 77) would limit judges' discretion to give probation to so-called 3g offenders, which includes most of the more violent offense categories like murder, rape, etc.. Very few 3g offenders get probation anyway, and the ones who do usually are first-time offenders with special circumstances that are best left to the judge and jury to evaluate. This would boost the number of folks in prison while diminishing judges' and juries' authority with no need - Texas juries aren't letting truly dangerous people get away with no prison time.

The bad bills list will get longer when I get around to analyzing the sex offender legislation filed so far, not to mention the usual round of penalty enhancements filed biennially. I also hope the list of good bills will expand. But this will let folks know about a few more criminal justice proposals so far, and I'll try and keep track of all the highlights as we go.

Let me know what I missed.

National conversation on drug laws occurring under radar

I've noticed lately several references to folks speaking up who you don't automatically expect to support reforming drug laws:

• Prosecutors
• Federal judges
• Prison guards
• Conservative think tanks
  
• Free market economists (R.I.P. Milton Friedman)

And I'll bet, if you asked them, you could add a country & western singer or two to the list. Have you noticed any unlikely drug law reformers speaking up recently?

It seems like there's a national conversation occurring on the subject, but under the radar - despite, not because of the country's leadership.

In a post-election wrap up, the Drug Policy Alliance's Bill Piper noted that Republicans are some of the "strongest champions" in state legislatures supporting drug law reform, although the opposite is true in Congress. That's been true in Texas, where the GOP Chairman of the House Corrections Committee Jerry Madden wrote last year:

Instead of sending non-violent people to prison, Texas could closely monitor them and provide job training, effective drug and alcohol rehabilitation and mental health treatment using other community resources — a hand up, not a hand out. That way, Texas could concentrate its criminal justice spending on the more dangerous people.

Governor Perry vetoed the bill he was writing about, but said he supported the concept, and his Department of Criminal Justice has been implementing some of the ideas anyway, as they can. Madden and Senate Criminal Justice Chairman John Whitmire plan to bring it back up next spring, and with a few key changes he identified in his veto message, most folks expect the Governor to support it. In 2003 Gov. Perry signed legislation to require judges to sentence low-level drug offenders to probation and treatment instead of incarceration on the first offense.

Ironically, given these dynamics, I think Texas could be a leader in the nation's move away from draconian drug laws, despite its "tuff" persona. That's in part because we've incarcerated more of our citizens than other states and nations, so the problems that come with overincarceration affect us more seriously.

It's too early to tell, and perhaps it's wishful thinking, but I see in the statements linked above and other developments the outlines of a potential consensus on these hot button subjects, one that wouldn't have been politically possible 5-10 years ago. Even if there's not complete agreement on what to do instead, very few people, it seems, think our current approach to the "drug war" is working.

What do you think, am I pissing in the wind or do these disparate threads really constitute a trend? And if so, can it happen in Texas?