Retrospective: Top Ten Texas Criminal Justice Stories of 2006

The New Year offers an opportunity to reflect on the most important criminal justice issues faced by the state of Texas in 2006, with an eye toward the coming year. With the exception of sex offenders and border security (and an unsuccessful "soft on crime" attack on Democratic judicial candidates in Dallas), crime and punishment issues didn't loom large in the November elections, but that doesn't mean there hasn't been a lot going on. These topics, in my estimation, were the most important criminal justice issues facing the state of Texas in 2006.

I apologize that this essay is too long, but it was a busy year. Let me know what I got wrong, or missed.

Texas prisons face massive overcrowding crisis
From the moment Gov. Perry vetoed HB 2193 in 2005, Texas' prision overincarceration crisis became inevitable. Already Texas rents more than 1,900 beds from county jails and estimates around 10,000 new prison beds will be needed if current trends hold by the end of the decade. That means if they don't want to rent all those beds, Texas either must start building prisons now, or change policies to reduce the number of inmates. Meanwhile, Texas can't hire enough guards to staff current prisons, and face recurring and troubling bouts of employee corruption. The 80th Legislature will consider at least these two solutions: making the state parole board follow its own release guidelines and strengthening the state's broken probation system to supervise more low-level offenders in the community. In addition, the conserative Texas Public Policy Foundation has suggested reducing certain penalties (including penalties for low-level drug possession) and creating "restorative justce" alternatives to incarceration that would also reduce the prison population.

Exonerations highlight need to prevent wrongful convictions
Around the state, exonerated defendants and cases dropped because of police misconduct continue to raise questions about common law enforcement practices and harm the state's reputation nationally. Prosecutors were found to have withheld exculpatory evidence in a high profile death penalty case. In Dallas, one of the officers who framed dozens of innocent immigrants was convicted, while Larry Fuller's release in Dallas made the 10th exoneration in that county in five years based on DNA evidence that disproved trial court testimony by witnesses or snitches. The defendant whose conviction spawned "Ashley's Law" creating Texas sex offender registration database turned out not to have committed the crime. Indeed, mendacious or mistaken prosecution witnesses and coercive interrogation techniques lay at the heart of the most disturbing cases. Possible solutions that should be considered by the 80th Legislaure include videotaped interrogations, mandating "open file policies" for prosecutors, requiring police to use "best practices" for photo lineups (including a requirement that the officer presenting the array not know who is the suspect, to avoid witness contamination), and requiring corroboration for eyewitnesses who did not previoiusly know the defendant. The Governor's Criminal Justice Advisory Council has suggested doubling the maximum compensation falsely convicted people could receive from the state from $25,000 to $50,000 per year they were wrongfully incarcerated.

Immigration detention drives incarceration expansion
While draconian Congressional proposals for mass arrests appear to to have died with the November elections, current laws already were on a collision course with reality. Immigration detention is the biggest driver of America's expanding incarceration industry (particularly for private prisons and local jails with entrepreneurial sheriffs). Already, one third of federal prosecutions in the United States are for immigration violations - more, even, than for drug crimes. "The Department of Homeland Security (DHS) recommended the prosecution of 65% more immigration cases in FY 2004 than it did in the previous year," according to a new study, and that number's only increasing. According to those data, even before the recent raids immigration agents were taking more cases to court than the the FBI, the DEA and the IRS combined. A huge and growing number of these derive from Texas' Southern District (Houston). We're creating large, powerful constituencies with stakes in a flawed system. The Border Patrol's staff has grown more than 1,200% in the past three decades, during which time illegal immigration skyrocketed. Meanwhile, immigration detainees are the fastest growing part of the US prison population. The Dallas Morning News in February predicted a detention bed "gold rush" in the short term based on current prosecution trends. Most recently, a new facility in Williamson County drew protests for incarcerating entire immigrant families in prison-like conditions, including young children. The solutions here can't be implemented by state government, but if you made me philosopher-king for a day to fix the problem I'd do three things: Abolish US corn and other agriculture subsidies that have ruined the rural economy in post-NAFTA Mexico, scrap the border fence and spend the billions it would have required (plus the Ag-subsidy money) on a Tex-Mex Marshall Plan to create jobs in Mexico, and finally, create paths to citizenship for immigrants who want to stay to avoid disruption of commerce and families.

Local jail overcrowding worsening
The year began with hundreds of prisonsers sleeping on the floor of the Harris County jail, and an overcrowding crisis at dozens of Texas county jails. The main reason: Texas judges are more likely to require bail of defendants who can't afford it than they were ten years ago. (In many cases this can harm public safety if defendants lose their jobs or have their lives disrupted to such an extent that they're more likely to recidivate - inmates who aren't working are also more likely to need the county to pay for their lawyers.) Counties have tried numerous possible solutions: creating pretrial services systems to identify defendants who could be released on personal bond, creating public defender systems to speed up the time it takes to appoint a lawyer and process cases, creating day reporting centers in lieu of incarceration for nonviolent offenders, creating specialized courts for drug addicts and the mentally ill to target specific populations of repeat offenders. Two jail administrators (in Midland and San Antonio) have even suggested issuing summons instead of arresting many misdemeanor defendants. In particular, two categories of nonviolent misdemeanor defendants are filling up Texas jail beds: drivers with suspended licenses (the penalty and fines were increased in 2003) and low-level marijuana offenders (around 49,000 arrests per year statewide). The 80th Texas Legislature could do a lot to reduce county jail overcrowding by reducing penalties for those two offenses from B to C misdemeanors and allowing counties to implement partial cash bond programs.

Juvenile justice abuses draw federal review
I don't follow juvie issues closely, but the Texas Youth Commission faces a federal review of the Evins Unit in Edinburg in the wake of allegations of abuse of students and countercharges by guards that rules put them in danger. While I've been highlighting high turnover rates for guards in the adult prison system, in the juvie system it's even worse - pay scales benefits aren't as good and dealing with troubled kids is REALLY hard. The topic moved to the front burner in a way that the feds couldn't ignore mainly because of excellent reporting by Elizabeth Piereson at the Browsville Herald and determined advocacy by the Texas Coalition Advocating Justice for Juveniles. Testimony at a Senate Criminal Justice Committee hearing in August revealed a deeply troubled system that now the Legislaure must either get involved to fix or risk the feds taking them to court.

Court of Criminal Appeals thumbs nose at President Bush, US Supreme Court
I'm not the first to say the Texas Court of Criminal Appeals has turned into a national embarassment, but in 2006 it became an almost commonplace assessment. The US Supreme Court continued its now-commonplace bench-slapping of the CCA on a variety of cases, particulary its defiance of the Supremes on how to evaluate death penalty cases. The Austin Statesman called for the Legislature to simply de-fund the court. The Houston Chronicle said the Texas judicial system was "broken at every level" starting with the CCA. The usually hyper-partisan judges even snubbed President Bush over his decision that Texas law enforcement must notify the Mexican consulate as per the Vienna Convention when Mexican nationals are arrested, prompting the public defender blogger at the Wretched of the Earth to declare, "Texas gives middle finger to the world." Thankfully, all the bad publicity and disapprobation from their judicial peers appears to be having a belated effect. Though one couldn't say the quality of their opinions are improving, the CCA has been using some of their administrative functions to try to improve their public persona, including creating sanctions for poor lawyering in death penalty cases, providing financial support for law school innocence projects, and showing up personally to deliver grant checks for new public defender offices. Even so, the CCA has become so unpopular that a Democrat who spent no money on his statewide campaign against Chief Justice Sharon Keller and didn't even show up for newspaper editorial board meetings garnered 43% of the popular vote in November, fourteen points higher than the Democrats' gubernatorial candidate. Between that unlikely outcome and the sweep of Dallas judicial races by Democrats, look for Democratic challengers to take these seats more seriously in 2008.

Sex offender election hype promotes dangerous non-solutions
Ratcheting up sex offender restrictions and anti-immigrant proposals were the two main "wedge" issues emphasized by GOP candidates up and down the ballot during the 2006 general election. While the emphasis on immigration backfired, some officials elected in November made campaign promises to expand sex offender registration requirements, boost already-high sentences, implement residency restrictions, or even expand the death penalty to include repeat child molesters. Some of these proposals are probably unconstitutional while others harm public safety by driving sex offenders underground instead of encouraging them to comply with supervision. The latest fad has been for municipalities to try to restrict sex offenders from living in their towns through zoning restrictions. Thankfully, in some quarters cooler heads are having their say. But enough pols (including the Lieutenant Governor) have pledged to pursue non-productive "tuff" approaches that we may expect a raft of bills in the 80th Texas Legislature to enact new draconian restrictions on sex offenders, as well as important committee-level debates over whether those ideas will really make us safer.

Texas drug task forces end, Byrne grant money shifts to border
After a six-year political struggle following the now-infamous Tulia drug stings, Governor Rick Perry finally pulled the plug on funding for Texas' regional narcotics task forces and moved most of the money to border enforcement and other programs. Despite the public tumult over immigration and a porous border, the Governor's "Operation Linebacker" drew its own share of criticism. Most of the money went to pay for equipment and overtime to patrol the river, even though most drug trafficking occurs at checkpoints and by air. In El Paso, the Sheriff drew criticism for using Linebacker money for immigration enforcement, particularly at traffic checkpoints that he ceased as criticism grew. Huge reported drops in crime claimed by the Governor's electoral campaign turned out to be untrue, and at this point it's unclear whether this money is being efficiently spent.

Corruption prevents stricter border enforcement
Even as public attention focused in 2006 on problems of illegal immigration and drug cartel violence, the agencies charged with enforcing immigration and drug laws proved to be riddled with corruption, leading the Laredo Morning Times to question, "How do you secure the homeland if some of those guarding the gates are dishonest?" This question remains unanswered. The year began with former Cameron County Sheriff Coronado Cantu entering prison for his role escorting traffickers through his jurisdiction, then a slew of cases cropped up one after the other throughout the year. And we're not just talking about low-level grunts. The former head of the entire FBI division in El Paso was indicted in April. The deputy director of a Laredo-based narcotics task force was indicted for directing his officers away from routes used by traffickers at pre-arranged times. In October the Los Angeles Times reported that 200 law enforcement officials on the border had been indicted for corruption since 2004, and nobody believes that's anything but the tip of the iceberg. It only takes one corrupt cop to undermine the work of hundreds of others. That's why I've argued that new grant funds for border security "should first go to Internal Affairs units or new specialized teams to investigate police corruption."

Texas counties create public defender offices
One of the underreported success stories in Texas criminal justice politics in recent years has been the expansion of public defender offices, and 2006 was a banner year for the trend. Some are doing it for economic and operational reasons, others to avoid litigation like that faced by Williamson County. Key to the expansion has been the grant program by the Texas Task Force on Indigent Defense to assist counties that want to launch new local public defender offices. (See the full list of currently active Texas PD offices.) The task force provides not just grant funds and technical assistance, but also something intangible and equally important: a genuine commitment by its staff to improve indigent defense and make things better for counties and defendants. This year saw the launch of so-far successful new offices in Hidalgo and Val Verde counties in South Texas - the one in Val Verde is a regional office that covers multiple counties, while the PD in Hidalgo County covers misdemeanors only. Funds were approved for another new PD office Kaufman County (east of Dallas), and one specifically for the mentally ill in Travis (Austin) to go with their existing juvenile PD. Bexar County (San Antonio) this year established a PD office solely for appeals. (See recent formal analyses by the task force of the Val Verde, Bexar and Hidalgo PD offices.) Public defender offices help solve several local problems at once: they help reduce jail overcrowding, reduce counties' cost for lawyers for indigent defendants, help court dockets move more quickly, and often provide higher, more consistent quality of defense than some court-appointed attorneys. Along with many counties experimentation with alternatives to incarceration for low-level offenders, this trend to me was one of the big bright spots of 2006.

Honorable mentions
Several stories nearly made the cut, or maybe should have, so deserve honorable mention among the biggest stories of 2006:

Healthcare at Dallas County Jail a Catastrophe:Lots of problems at the Dallas jail. For starters they keep losing people. The Justice Department investigated after 11 preventable deaths in three years due mainly to inadequate healthcare. For every month inmates stay in the Dallas County Jail, they're more likely to acquire a staph infection than they would be to roll snake eyes playing craps. The good news: Though problems persist, the county canceled the contract with UTMB to run health services in jail and is providing more funds for the local hospital district to do the job. The bad news: UTMB also provides healthcare for the entire Texas prison system.

Crime lab inadequacies, capacity shortages near crisis:Crime lab capacity and quality remain a huge concern, while problems at Houston's crime labs drew national attention. Many shut down rather than comply with new legislative requirements that labs be "certified" before their findings were used in court. The Governor's Criminal Justice Advisory Council suggested greatly expanding funding for labs at the Texas Department of Public Safety, but some of those are the same labs where problems occurred in the first place. The most effective option may be cost prohibitive: Providing indigent defendants money to hire their own independent experts, using the adversarial system to vet evidence instead of assuming the state labs are always right. At this point, we know they're not.

Dallas Dems must now put up or shut up on criminal justice: In perhaps the most shocking political turnabout of the year, Dallas County, a long-time GOP bastion, elected a slew of Democrats following up on first-of-their-kind victories in 2004 by judges and Sheriff Lupe Valdez. Whether or not this represents the long-term transition many partisans hope, the initial wave of new Democratic officials nearly all work in the criminal justice system. Now the Sheriff, the District Attorney, and most Dallas judges are Democrats, and they must solve management and healthcare problems at the jail, prevent more wrongful convictions and, Oh yeah, ensure the public safety in the most crime-ridden city in the state. Good luck, Dallas Dems. You'll need it.

CORRECTION: House Corrections Committee Chairman Jerry Madden responds: "Good piece. One minor correction - due to the efforts we have made, the pay for guards at the Texas Youth Commission is now identical to the TDCJ guard pay. The retirement is different however. ... There was a pay scale out at one time where there were differences [in increases in seniority pay, but] most of them are now the same." Thanks, Chairman, for the clarification, and good luck this session.