Saturday, March 31, 2007

Around the Web

It's a beautiful day so rather than write blog posts on each of these items, I'll just give you the links and leave you to your own devices:
  • Finally, I'm just curious - can anyone think of any reason ... any reason at all ... that Willacy County should exist? As long as it does, we're just going to see more incidents like this one. Can we please just merge Willacy with Cameron County once and for all and be done with it? I've got a slogan for the constitutional election: "253 is enough for me!"

A Comeback for Tulia-Style Drug Task Forces?


Are Tulia-style drug task forces preparing to make a comeback?

Just a week after the last of the Tulia defendants were approved to receive compensation for wrongful imprisonment, a vaguely worded Memorandum of Understanding was published in the March 30 Texas Register between the Department of Public Safety and the Governor's Criminal Justice division. Mostly the document blandly discusses general information sharing and DPS participation in unnamed gubernatorial advisory committees, but the final paragraph declares that the MOU will "enable CJD and DPS to comply with state and federal reporting requirements and to assess the effectiveness of each drug task force funded by the state." (emphasis added)


I was under the impression that the Governor de-funded all of Texas' regional drug task forces last year!

Rep. David Farabee, a Democrat from Wichita Falls, proposed a floor amendment this week to the House budget to supply the regional task force in his area $300,000, which to my knowledge would have made it the only one in the state receiving funds. But his amendment (#95) was tabled on a vote of 81-60.

So which drug task forces are they talking about in the MOU? Is the Governor planning to start them back up now, and if so, why?

More on this to come as I get it. In the meantime, see prior Grits coverage of this peculiar institution, previously thought defunct within Texas' borders.

Friday, March 30, 2007

Kimbrough: Shaquanda Cotton to go free

Reports the Chicago Tribune. More from AP and the Paris News. See Grits' earlier coverage. UPDATE: See the Chicago Tribune's post-release interview with Shaquanda.

Retrieving History, and the Meanest Man in Texas

I neglected to point out for the history buffs among you (I know there are a few) that Marie Beth Jones, chair of Brazoria County's Historic Commission, is doing a series of articles on a now-demolished prison there called Retrieve at the Back Gate. Here's her first installment which interviews a retired guard and a physician who both worked there in the 1930s during the height of the Great Depression. UPDATE: Here's Part Two.

A BG commenter points out a book I'd not heard of before that's set in that facility called The Meanest Man in Texas, an eponymous biography of Clyde Thompson, a one-time resident of Retrieve who was once so dubbed.

If Mr. Thompson came anywhere close to earning that appellation, that makes him a pretty mean fellow, indeed.

Say 'Howdy' to Texas Prison Bidness

Via Corrections Sentencing I learned of Texas Prison Bidness, a new blog founded this week by Kathleen Pequeño, Nicole Porter and Judy Greene. Here are the details:

Launched in March 2007, Texas Prison Bid'ness is posting information about the growing prison-for-profit industry in Texas. Since the first prison-for-profit in the world opened in Texas in 1984, Texas has become home to scores of prisons of all shapes and sizes that are run for the profit of corporations. We'll be sharing information about the true costs of private prisons to individuals, families and communities in Texas and across the country.

About the name, Texas Prison Bid'ness

Yes, this blog's name is indeed a tribute to Texas writer Molly Ivins, who wrote in 2003, “What happens if you privatize prisons is that you have a large industry with a vested interest in building ever-more prisons.” You can read her 2003 column on the push for privatization in the Texas Legislature.

I should mention that Nicole Porter is a former colleague of mine - she's the Prison and Jail Accountability Project Director at ACLU of Texas. She recently authored a public policy report for that group on the subject of overincarceration titled, "Texas: Tougher Than Ever, But Are We Safer?" that updates information first produced several years ago by the Justice Policy Institute in a report called "Texas Tough."

Private prisons and jails are a fertile topic in Texas right now, so these writers should find plenty of fodder. Go visit and say 'Howdy.'

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

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

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

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

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

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

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

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

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

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

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

You might think it'd be a good thing to know how many kids have been or would be affected by this policy before passing such a bill, but as far as I can tell no one seems to care. The House Law Enforcement Committee studied the effects of the 2005 legislation during the interim, but as I wrote in December, the committee:
failed to focus at all in its report on the most important aspect of this bill: What happened to the children seized as a result of this new law? Were they later returned to their parents? Did they enter the foster care system? Since HB 164 provided no new or specialized resources for these chidren, do we know whether they received counseling and support needed by a child traumatized by removal from their family? None of these questions are discussed in the report - we don't even know how many children were seized under the new law - 10, 50, 100, 500, quien sabe?

[I wrote then,] Did anybody see
60 Minutes' segment on foster children who were taken away from their parents last night? Here's the video. What happens psychologically to children under such circumstances really can't be understood unless you've witnessed it. These kids are psychically brutalized then basically thrown away. And the Law Enforcement Committee's report reflects that - nobody even looked to see what happened to them.
So now, Rep. Miller comes forward with a bill that will likely dramatically increase the number of kids seized from meth using parents. Really? How many will there be? What services will they need? How much will it cost? We don't know; in its interim report the Law Enforcement Committee didn't even know how many kids were seized under the law as it's already written.

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

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

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

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

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

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

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

Now Driver would delete that requirement, as well as change the definition of when an officer is "dishonorably discharged." Under current law, the term dishonorable discharge "applies only to an officer whose employment was terminated for a violation of law or department policy or for other substantiated misconduct." Chairman Driver's bill would narrow that definition to say that
"Dishonorably discharged" means:
(A) the officer retired or resigned in lieu of termination for a criminal offense;
(B) the officer was terminated for a criminal offense after charges were filed;
(C) the officer was terminated for a criminal offense;
(D) the officer retired or resigned in lieu of termination for an administrative violation of truthfulness or insubordination; or
(E) the officer was terminated for an administrative violation of truthfulness or insubordination
So under this new terminology, the only adminstrative violations that would merit the label "dishonorable discharge" are for "truthfulness or insubordination," whereas previously the term applied to any "substantial misconduct." I see no good reason to change the definition except to allow officers fired for good cause to find new employment without their bosses' knowing about their past. Who benefits from that? Only bad cops whose misconduct is allowed to continue until they're arrested and prosecuted.

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

TDCJ staff blogging heats up

Prison guard bloggers at The Back Gate are rocking the jailhouse lately with several standout posts I thought I'd recommend:
In addition, TexasJustice.Org, which is run by retired warden Terry Pelz, has several recent posts on TYC happenings, and Region III Lt. James Wynne is sick of COs inferior pay and has decided to do something about it. We'll see if an extra four percent is enough to attract guards to work at currently understaffed facilities, much less three new ones.

Lawsuit seeks to end secrecy about parole decisions

This week Jordan Smith at the Austin Chronicle offers up a fine article on failures of the Board of Pardons and Parole to follow its release guidelines, and a pending lawsuit filed by the Texas Civil Rights Project to seek an end to the cloak of secrecy surrounding parole decisions. Good stuff! Read it for a better understanding of how the parole system works and some of the problems from an inside perspective.

MORE: From the Austin Criminal Defense Lawyer.

House schedules raises for TDCJ, TYC

In the midst of his outstanding liveblogging of the floor debate on HB 1, the Texas House Appropriations bill, Vince reports:
TYC and TDCJ guards will get raises of about 4 percent in addition to a 2.5 percent raise for all state employees.
It remains to be seen if the pay raise sticks in the Senate. Vince didn't mention whether employees besides COs at those agencies were included in the amendment - if anybody knows offhand, please update in the comments.

Meanwhile, Matt Wright at the Texas Observer blog writes that the House approved an amendment by Martinez-Fischer to disallow TYC to use funds to pay employees with a past felony. I've written before why I think this is a broad-brush overreaction and a bad idea - a narrower, more targeted restriction would be more appopriate.

I wish everybody would stop all the grandstanding and put on their thinking caps before proposing this stuff. TYC only allowed workers with felonies with authorization from the central office, but there's a really good reason: the agency can't find enough workers in the isolated, rural areas where TYC facilities are located. Everyone who's studied the situation acknowledges that the shortage of workers contributes to the lack of safety for kids and employees alike. But Martinez-Fischer would reduce the potential labor pool! About one in eleven Texas adults has a felony conviction, so in the scheme of things we're talking about a lifetime ban on employment at TYC for quite a lot of folks.

Help Out Inside Books

If you're in Austin and have some spare time this weekend consider helping the Inside Books Project with their semiannual book distribution work party. Here are the detials:
Inside Books Project Work Party set for March 29 – April 1 at the Rhizome Collective - 300 Allen St, Austin, TX 78702,

Four days. Seventy-eight hours. Over 150,000 prisoners to serve. The Inside Books Project will work around the clock from Thursday March 29 to Sunday April 1, sending thousands of books to incarcerated people in Texas.

Last year, the Inside Books Project sent over 25,000 books to prisoners in Texas. This year, as more prisoners have learned about our services, book requests have continued to increase. We are excited and daunted by this increase. We have never felt more effective in our mission of using books as catalysts for change in the lives of prisoners and in the system that has incarcerated them. At the same time, we have never felt so overwhelmed by book requests.

Twice a year, in the spring and fall, the Inside Books Project hosts a four-day-long Work Party—an opportunity for our whole extended family of volunteers to get together in a fun, festive atmosphere and accomplish tons of work. Food, music, prizes, massages, and beverages will be provided.

The Work Party runs from 6PM Thursday, March 29 - 11:59PM Sunday, April 1. We invite volunteers to just show up at our 300 Allen St. location and plug in. See you there!

Thursday, March 29, 2007

Improving phone access, parole rates, headline Monday's Corrections agenda

Here's my weekly preview of highlights from the Texas House Corrections Committee agenda for Monday's regular committee meeting:

Expanding prisoner phone access
Reps Pat Haggerty (R-El Paso) and Terri Hodge (D-Dallas) have both filed companion bills to Sen. Leticia Van de Putte's SB 1580 - HB 1888 and HB 43, respectively. The bill would require TDCJ to put out a request for bids to give prisoners phone access with restricted approved call lists, monitoring of calls (except those with an inmate's attorney), extensive data gathering, and use of biometric identifiers for access. It would require the winning vendor to install and maintain at least one phone for every 30 inmates in each unit.

This would solve a lot of practical problems - already overworked guards and staff waste a lot of time shepherding inmates back and forth to make phone calls or messengering news to inmates. Plus it worsens families' anxiety when they can't get timely news about their loved ones. Lack of phone access increases prisoners' separation from the family, lessening the likelihood the offender will successfully reintegrate into society once they're out. Plus, prisoners value phone privileges and the ability to remotely bestow and take away access gives prison administrators another tool for influencing inmate behavior.

Finally, giving prisoners phone access would diminish a growing source of corruption among TDCJ employees - smuggling cell phones into prison for inmates. Like any other form of contraband - the ability to call home can either be regulated or made illegal, in which case it creates a black market. In the case of drugs, many people think the harm of drug use outweighs the harm of the black market. But that can't be said for prisoners' calls to their attorney or loved ones. It makes more sense to simply improve access to phones for prisoners in a controlled manner rather than allow a black market to flourish.

With bipartisan support and bills filed in both chambers, maybe this common sense approach will have a chance to move this year. UPDATE: More thoughts on the subject from the Socratic Gadfly.

Boosting parole rates for reformed prisoners

HB 2938 by McReynolds aims its sights directly at Texas' recalcitrant Board of Pardons and Parole, which many in the pink dome blame for Texas' prison overcrowding crisis for not meeting its own guidelines for releasing low-level offenders. (The chair of the BPP is Rissie Owens, spouse of newly appointed TYC executive director Ed Owens, who was just demoted to deputy czar.)

Current law requires that when a parole panel reviews a case file, they can only receive parole if the panel determines two things:
(1) arrangements have been made for the inmate's employment or for the inmate's maintenance and care; and
(2) the parole panel believes that the inmate is able and willing to fulfill the obligations of a law-abiding citizen.
McReynolds' bill says that if a parole panel finds the second item is true, that they're able and willing to be law abiding citizens, but that the inmate has no employment or arrangements for "maintenance and care," after 45 days the parole board must release them anyway. That gives the inmate time to make arrangments with friends and relatives or access re-entry services, which in an ideal world TDCJ would help facilitate.

That makes a lot of sense from a management perspective. When there isn't space for incorrigibles, there's no room in prison for those who are merely indigent.

Similarly, freshman Rep. Boris Miles checks in with a good bill filed late in the process - HB 3702 - which would help improve parole rates. The bill would remove some of parole panel's discretionary reasons for refusing to release offenders convicted of third degree felony drug possession, essentially disallowing the BPP for refusing parole to these nonviolent offenders on the grounds that they are a danger to the public. A third degree felony possession charge is 1-4 grams of a controlled substance, so we're talking about low-level user amounts here. Preventing parole based on future dangerousness doesn't make a lot of sense to me when they weren't convicted of a dangerous offense in the first place.

If the parole board were doing its job, this bill wouldn't be needed. But it's not. So it is.

DWI Courts
Scott Hochberg's HB 1875, a bill related to DWI courts is on the agenda again. See Grits' earlier discussion.

Yes, more still on TYC
And, of course, this session seemingly every committee hearing has to have something to do with the Texas Youth Commission, and this one is no exception:

HB 3206 by Sylvester Turner would add a study component to the Texas Youth Commission's upcoming Sunset review, ordering the Sunset Advisory Commission to:
to develop a practicable plan to move the Texas Youth Commission toward a regionalized structure of smaller facilities and more diversified treatment and placement options
I think that's exactly the right approach - modeling youth prisons on adult ones fails to take advantage of research done to develop best practices in juvenile corrections, as an official from Ohio testified on Tuesday to the joint committee on TYC. Smaller facilities located closer to urban areas where kids can see their families are safer for kids and TYC employees alike, and make it a lot easier to recruit staff.

Meanwhile, HB 3701 by Miles would create an ombudsman's office at TYC, for obvious reasons given recent events. The bill has quite a few (all Democratic) co-authors.

Miscellaneous TDCJ-related bills
HB 2053 by Madden is the Department of Corrections "Sunset" bill, which must pass for the agency (as well as the Board of Pardons and Parole) to continue to exist. I've not parsed through the details of this one - maybe I'll get to it before Monday - but thought I'd mention it since it's up.

HB 45 by Hodge would permit and regulate sale and use of tobacco products in TDCJ facilities. Banning tobacco among inmates has created a lucrative black market that contributes to corruption of guards and encourages an aura of futility about enforcing prison regulations. The concept here is similar to that with phones in HB 43 above - the greater harm from banning cigarettes may come from their illegality - from the lucrative smuggling cartels that dominate cigarette trade in prison, plus misbehavior by tobacco-addicted inmates breaking their addiction cold turkey. The safety and anti-corruption benefits of letting prisoners smoke must be balanced with long-term health costs for the state, but there are more reasons to think letting prisoners smoke might be a good idea than at first meet the eye. UPDATE: See a more thorough analysis of the pros and cons from The Back Gate.

Finally, a couple of small good bills for TDJC employees are up Monday, too: HB 315 by Miller which would give TDCJ prison industry workers the same career ladder as corrections officers, and HB 2103 by Kolkhorst which establishes a pilot program for giving COs scholarships at Sam Houston State University in Huntsville. Not big changes, but as my father would say, it's better than a sharp stick in the eye.

Say 'Howdy' to the Eyewitness ID Blog

Here's a much-needed addition to the legal blogosphere: Meet the Eyewitness ID Blog.

Consider it a matched set with Alan Hirsch's The Truth About False Confessions. BTW, if you didn't see it Professor Hirsch had an interesting exchange with University of Houston Innocence Project Director David Dow in the Texas Observer on innocence and the death penalty.

And the survey says ...

Thanks for all who filled out Grits' site survey yesterday - I reached the max responses on the free SurveyMonkey tool I used, so thought I'd share the topline results with readers:

Most of those who answered the survey are regulars - 57% visit Grits daily, and another 30% visit several times per week. Thanks for coming!

A lot of you visit because of work - 53% visit for "profesisonal" reasons, while 21% chose "personal/family member" as their main reason for reading.

Nearly half of Grits readers found the site through another blog. Another quarter found it via search engine. I suppose I shouldn't have been surprised to learn that despite the faddish popularity of RSS readers and "personalized" Google and Yahoo pages, 65% of respondents get to Grits through their browser's bookmarks. So bookmark this page, if you haven't!

Since a blog's best marketing is via word of mouth, I was encouraged to learn that two-thirds of survey respondents have forwarded a blog post to someone else. (For those who weren't aware, you can do that easily by clicking on the envelope icon at the bottom right of every post.)

I was equally glad to see that 31% of readers have contacted an elected official because of something they read on Grits - 25% said they'd done so more than once. One reader declared on that score, "I would like more coverage of the legislature, particularly bad bills that need a good killing."

A whopping two out of five survey respondents (38.5%) work for a government agency at some level, but not all in the criminal justice field. One person wrote, "I'm a history professor at UNLV writing a book about the history of juvenile justice and corrections in Texas. Grits has been invaluable as a clearing house for news on the TYC scandal, plus the comments from TYC staff are helpful."

Indeed, a number of readers identified themselves as Texas Youth Commission employees or parents (perhaps accounting for my recent jump in traffic): "
I work for TYC," wrote one. "Grits and Dallas Morning News provide me with more information about what's going on in my agency than my agency does."

About half of respondents left suggestions of things they wanted more or less of, and several good ideas emerged that may result in Grits posts down the line.

Thanks to everyone who responded to the survey, and to everyone who reads this blog. Your participation makes this blog better, and I appreciate the input.

Wednesday, March 28, 2007

Annual racial profiling data analysis released

The Texas Criminal Justice Coalition today released this year's analysis of Texas' racial profiling data from traffic stops performed by Texas law enforcement agencies. The study focuses in particular on the relative frequency of "consent searches," not just by race but also disparities between different, often comparable agencies. I'll have more soon analyzing its contents, but for now here's a copy for the report (pdf) for those interested. (Congrats to Molly Totman, the report's author and the principal manager of TCJC's de facto statewide repository of racial profiling data.)

These data are for the calendar year 2005 and were reported to local governing bodies in spring 2006. Each year since the inception of the law, TCJC has gathered these reports under open records requests and compared traffic stop data across agencies in an annual analysis. Here's the press release TCJC issued today along with this year's study:

TCJC commends State Senator Royce West for filing bill to address continued problems with way agencies collect and report required racial profiling data, and Representative Senfronia Thompson for commitment to see bill through in House (Austin)

Law enforcement agencies continue to have problems complying with the data collection and reporting requirements of Texas’ racial profiling law, according to a report released today by the Texas Criminal Justice Coalition (TCJC) titled Smarter Policing Practices: Creating a Safer, More Unified Texas. As a result, local community members and officials are prevented from knowing what is truly going on at traffic stops in their areas. Agencies are also unable to compare their data to other agencies’ data to determine if there are improvements to be made, or if there are practices they should be implementing to best allocate officer resources and increase public safety.

“Policy-makers must ensure that our state law enforcement agencies are providing value-driven police services throughout Texas,” said Ana Yáñez-Correa, Executive Director of TCJC. “But effective community policing models can only be implemented if a full range of uniform data is collected and reported by Texas agencies.”

The report offers major policy solutions – founded in statistical research and based on the feedback of both community members and law enforcement – that would address the problems facing law enforcement as they undergo mandated data collection and reporting processes. For instance, policy suggestions include the establishment of a statewide repository for racial profiling reports that could oversee data compliance issues; creation of a uniform, standardized reporting format that would help law enforcement agencies comply with Texas’ racial profiling law; and the required collection of three additional data elements at traffic stops to improve data accuracy and provide a clearer understanding of what is happening at stops.

TCJC, which is the current statewide repository and analyst of required, annual racial profiling reports from Texas law enforcement agencies, is also the only source of cross-agency monitoring. Researchers found that nearly 10% of surveyed agencies did not report all required data elements, while 20% did not break out all data elements by required racial categories.

“It is no longer excusable that some agencies continue to comply with the racial profiling law year in and year out, while others never do,” said Molly Totman, Policy Analyst for TCJC and author of the report. “Both agencies and the community benefit when data is sound, reliable, and uniformly reported. Most importantly, police supervisors are equipped to make informed and internal policy changes to improve the way they protect the public and better ensure a mutual relationship of confidence and community trust.”

To assist law enforcement in their efforts to comply with the racial profiling law, State Senator Royce West (D, Dallas) filed a bill in the Texas Legislature on March 8, 2007, that calls for a repository to be established at the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE), the Austin-based state agency responsible for developing and implementing training program curricula for peace officers. This bill will require agencies to submit their annual racial profiling reports to the statewide repository for analysis. Representative Senfronia Thompson (D-Houston) will carry the legislation forward in the House of Representatives when the bill passes out of the Senate.

“We commend both Senator West and Representative Thompson for their efforts to strengthen the existing racial profiling law by ensuring all Texas law enforcement agencies provide us with a full picture of what is happening at traffic stops and have the tools to put in place policies that will increase public safety,” said Totman.
Please go to our website for a full explanation of the report’s recommendations, as well as a city-specific fact sheets for the following areas:

Beaumont/Port Arthur
Bryan/College Station
Corpus Christi
Dallas/Fort Worth
El Paso
San Angelo
San Antonio
Wichita Falls

For information on the Texas Criminal Justice Coalition’s work in support of fair, effective police practices that improve the safety of our communities, see our webpage on the topic.
See prior, related Grits coverage:

TYC public hearing today lets Lege hear from new faces, conservatorship may be announced

I'm headed up to the capitol this afternoon to watch public testimony before the Joint Committee on Operation and Management of the Texas Youth Commission, at least for a while. I could watch it from home on the computer, unemployed blogger that I am, but no, I'm going to put on a jacket and enter the pink dome to discover the scuttlebutt in the hallways. The things I do for you people! (My three dogs have all informed me they think I should take them on a long walk instead. Despite my fear of disapprobation from Rep. Woolley and the Criminal Jurisprudence Committee, I plan to ignore their pleas and visit the Lege.)

This should be an informative afternoon - a first chance for the committee to hear from others besides themselves and a few handpicked administrators. So if you care about what the Lege might do about, because of, or to TYC, don't miss it.

(For those who couldn't attend, here's the link to the archived video of the hearing.)

RELATED: On the Texas Observer blog, Jake Bernstein says that Speaker Craddick, Lt. Gov. Dewhurst and Gov. Perry have scheduled a press conference upon adjournment of the House where they may announce a reversal of Gov. Perry's insistence on a "special master" instead of a legally sanctioned conservatorship. (You'd almost think the Governor is a Grits reader!) If it happens, that should give the hearing a different tone.

In addition, allegedly abused TYC kids and family members gave testimony yesterday, reports Channel 8 News, to the National Prison Rape Elimination Commission. Here's more from the SA Express News.

UPDATE: The hearing was a bit of a disappointment for some of the reasons already identified by Grits commenters, so I came home early to give those dogs a (shorter than hoped for) walk and to take a nap. I'll try to get a summary of some of the highlights up soon. Until then, see intital MSM coverage, and also coverage from the Texas Observer. MORE: From the Dallas News, the Houston Chronicle, the Austin Statesman, the Back Gate, and Patricia Hart at Burkablog. This post from the Texas Politics blog raises an issue I've discussed regarding adults seeking parole - whether admission of guilt should be a requirement for judging rehabilitation.

Shaquanda Cotton

Since the Chicago Tribune first broke the story earlier this month (they had an update this week), I've linked a couple of times to stories about Shaquanda Cotton, a 14 year old from Paris, TX sent to TYC for shoving a hall monitor, but with the Lege in full swing I haven't focused on the case. It's a doozy, though, and is garnering as much attention to TYC in other parts of the country as the much-ballyhooed sex abuse scandals.

The Tribune writers raised the racial stakes in Shaquanda's case by pairing her story with a white girl convicted of arson several months earlier for burning down her family's house. That girl received probation from the same judge, while Shaquanda found herself incarcerated for what seems like a lesser offense by any standard. The judge has publicly defended both rulings. Shawn Williams at Dallas South Blog offers some clarifying thoughts on the case from a hometown perspective.

One wonders if the sentence would be the same if Shaquanda were a white girl named Jessica? Hundreds of protesters in Paris yesterday wondered the same thing. Her case is the subject of a global prayer vigil this Saturday.

The Lone Star Times accuses Shaquanda's supporters of unjustly playing the race card, but since when did shoving a hall monitor become something you go to prison for? ESPECIALLY given what we know about what happens to kids at TYC. Black, white, or green, have we lost our minds? That's not conservative, just unforgiving and mean-spirited. Are we really so punitive a society that we can justify throwing 14-year olds in prison for bratty juvenile behavior that didn't harm anyone? One wonders, are there no lesser punishments our conservative friends might find appropriate?

Vince questions why the Texas media (outside Paris, at least), hasn't caught on. I think it's the same reason no one in the MSM covered the Senate Finance Committee's decision to build new prisons - all the reporters who would normally be on it are busy eating Nate Blakeslee's dust on the Pyote story and the subsequent legislative fallout. The story has gotten TYC Special Master Jay Kimbrough's attention, though, who says it will be an early case reviewed by a special task force for possible release.

Cotton's family has even set Shaquanda up a blog, which only has one post so far, but stay tuned. (Before someone gripes that she shouldn't be on the web, TYC kids, like adults in TDCJ, don't have internet access, so for every inmate blog you see, someone on the outside is helping them put up their posts, which are invariably sent back and forth, with much delay, relatively speaking, via snail mail.)

Check out the links above for more. The story adds fuel to an already white-hot fire at the Texas Youth Commission. Maybe that's why the MSM hasn't bitten on the story in Texas. Given everything that's happening, it's almost too much to process.

UPDATE: See this story from the Washington Post, an interesting comment string on the subject at TalkLeft, and a followup post at the Lone Star Times responding to this Grits item.

Tuesday, March 27, 2007

Bexar probation officers sue director

Bexar County probation officers feuding with their agency's director have filed a civil suit, and former Demcratic Attorney General candidate David Van Os is their lawyer, reports the SA Express News this morning ("Adult probation officers sue director," 3-27). It sounds like the press conference where the lawsuit was announced was quite a zoo. According to the paper:
Fourteen adult probation officers filed suit Monday against their boss, Community Supervision and Corrections Department Director Bill Fitzgerald, alleging retaliation for their efforts to organize into a union.

But their news conference on the suit turned into a near-brawl Monday evening when a probation officer loyal to Fitzgerald got into a shouting match with a lawyer's wife and loudly proclaimed them all "disgruntled workers."

Lawyer David Van Os said the 14 are part of a wider group of officers who were retaliated against last year after more than 100 signed a petition citing workplace safety concerns. Some set up a meeting with Fitzgerald and an organizer from Service Employees International Union.

Fitzgerald agreed to — then canceled — a Dec. 19 meeting and on Dec. 21 sent out an e-mail informing everyone in the department that they must reapply for their jobs.

"This is going to be one of the easiest (cases) I've ever handled," Van Os said.

The alleged near brawl was between Van Os' wife who was photographing the event and an anti-union employee who allegedly assaulted Mrs. Van Os when she tried to take her photograph and began yelling out to the assembled reporters. I'll see if I can lay my hands on a copy of the plaintiff's complaint in lawsuit for more information.

See prior related Grits posts:

A new claim of presidential power, this time at Texas' expense

Lyle Denniston at SCOTUS Blog tells why the Bush administration thinks Presidents have power to order state courts to obey the World Court - in this case, the Texas Court of Criminal Appeals in Meddellin v. Texas.

Ed Owens faces joint TYC committee

TYC Czar Ed Owens testified this morning to the Joint Committee on TYC Oversight (see the video here), and told legislators he would be releasing an "implementation plan" on Thursday. Here are a few highlights from the hearing:

Owens told Senate Criminal Justice Committee Chairman Whitmire that in the past month kids have been segregated so that youth 12-13 aren't housed in the same dorms as older students. He said they weren't segregated by campus, but they were segregated by dorm. However, he told Whitmire, students weren't segregated by level of offense, so violent and nonviolent offenders are still housed together as before. (The best way to address that, incidentally, is to shift to smaller units of just 2-3 dozen instead of 200-300, to better keep kids with differing classifications segregated. Preferably such new units should be located near urban areas, not out in the boondocks, if you want to hire quality staff.)

Kids in mental health units and special needs kids are still housed together across ages, Owens said, but in those instances are given individual rooms.

Whitmire also grilled Owens on why changes in training and grievance procedures weren't further along, to which Owens could only weakly reply he was "looking at" changes but hadn't yet made any decisions. Some of those answers, he said, would be in Thursday's implementation plan.

"Who's running TYC right now?" asked Whitmire. Owens said "I am." Whitmire asked who he reported to or who provided oversight. Owens said he didn't "report" to anybody, but he was "working with" Mr. Kimbrough, the state auditor's office, and his contact in the Governor's office, Alphonso Royal.

Whitmire went ballistic, and told Owens he was going to give him the best piece of advice he'd get all day - demand a higher level contact in the Governor's office, including the Governor himself. Royal was "at best a mid-level person," said Whitmire, maybe lower, and was one of the people who allegedly knew early on about the scandal and didn't act. He also said he thought Owens needed an active board to oversee and assist in his reforms and give them more legitimacy.

"Let me just tell you," said Whitmire, "because you don't have a board that can be held accountable ... the buck stops with you." Owens said he understood he didn't need to wait on anyone's approval to implement his new plan.

Whitmire was also unhappy that installation of surveillance cameras was waiting on a supplemental appropriations request. Under questioning Owens said he'd informed the Governor's office last week he needed cameras and didn't have the money. Whitmire said "it's nuts to me" because the Governor's office had discretionary criminal justice grant money available for "border security" and other political priorities. He told Owens if he needed money for cameras the Legislature could get it for him immediately, "today" - perhaps with his connections Owens could have done it already through an "interagency agreement" with TDJC, Whitmire said.

Owens agreed that the location of TYC facilities made it difficult to hire more guards, and said the better short term solution to reduce guard-student staff ratios was to reduce the number of students. In the medium term he wants to close some facilities and move them closer to urban areas. (A proposal earlier this year was floated to convert two TYC facilities to adult units.)

Owens said there were 300 youth at the Marlin facility where the superintendent was arrested last week. It's the intake facility for every kid in the state sentenced to a TYC facility - they all go there for "orientation and assessment" before being assigned elsewhere. Kids are separated by age there, said Owens, but not by offense type. Sen. Whitmire called that "totally unacceptable." He thinks reducing cohabitation of nonviolent and violent offenders from intake on is "more important than the cameras," and he could understand why any judge would object to sending kids to TYC.

A few more TYC tidbits

Here are just a few more Texas Youth Commission-related highlights from the still-frothing media frenzy heading into tomorrow's public hearing:
And be sure to click on the "Label" below for recent Grits coverage.

Tuesday and Wednesday Feature Important Criminal Justice Hearings

Today at the Lege these committees will meet to discuss criminal justice matters. See Grits' previews:
Then, tomorrow, the House Corrections Committee will hold a special hearing to take public testimony on unrestricted topics about the Texas Youth Commission. For this hearing, TYC is rescinding its demand that staff not talk to legislators. Their PR man Tim Savoy sent out an email to TYC employees (forwarded by a faithful Grits reader) that serves as a perfectly good notice for anyone else interested in the topic:
Public Hearing Notice – House Corrections Committee

The Texas House of Representatives Corrections Committee is holding a public hearing and inviting you to provide testimony about your experiences with the Texas Youth Commission. Everyone is invited to speak, including parents, employees, volunteers, and citizens.

Wednesday, March 28, 2007, 1:00 p.m.

in room 120 at the John H. Reagan Building located in the northwest part of the Capitol Complex at 105 West 15th Street , Austin , TX 78701 .

If you can't make it to the hearings in Austin, go here for livestream webcasts of Texas House hearings and here for those in the Senate.

Governor should reconsider TYC "Master": Issue too big to fly by seat of his pants

It's taken a while since Texas Governor Rick Perry first appointed him "Special Master," but the Lege has finally figured out, and the Master finally admitted at a House Corrections Committee hearing yesterday, that Jay Kimbrough has no authority - zero, zilch, nada - to reform the Texas Youth Commission. Reported the Houston Chronicle ("Kimbrough: No authority to make changes at TYC," March 27):
"Kimbrough's not carrying a badge or ordering law enforcement to do this or that," said Perry spokesman Ted Royer. "He is the point man that is making sure that nothing falls through the cracks." ...

Kimbrough told lawmakers Monday he is "trying to be a coordinator, facilitator, an idea guy," and his investigation is empowered by Perry's appointment.

"I ain't got no statutory anything," Kimbrough said. ...

"We now know Mr. Kimbrough doesn't have any authority to do anything," said Rep. Pat Haggerty, R-El Paso.
As a result of confirming the Special Master's impotence (legal impotence, that is - I'm not saying riding a Harley at Kimbrough's age and station is overcompensating or anything!), the Corrections Committee yesterday approved the creation of a "conservator" for TYC over the objections of the chair, according to Quorum Report, which is a rare move indeed.

In this case, though, I hope Chairman Madden and the Governor both reconsider and go along with the conservator plan.

Let's review. Governor Perry named this "special master" who answers only to him and has no formal power, instead of the statutorily defined "conservator" who could actually run the agency with the authority of law. Perry "suggested" that the TYC board name Department of Corrections' second in command, Ed Owens, as interim TYC executive director, which it did, vesting him with dictatorial power before the board resigned en masse. For his part, Owens was accused in a lawsuit that was settled last year at TDCJ of failing to act upon serious sex abuse allegations at that agency.

So now we're in the following situation: TYC does not have a board as required under law and Governor Perry has not moved to appoint new boardmembers as he's empowered to, nor has he created a conservatorship, his other legal option. All power is vested in an executive director for whom the state last year paid a civil settlement in response to charges he helped cover up a sex scandal at Texas' adult corrections agency. No board nor anyone else is there with legal authority to provide him oversight. Still, Perry is resisting the legal "conservatorship" and insisting on this "Special Master" mechanism that has no basis in history or law.

This issue is way too big, the media frenzy too intense, and the stakes too high for the Governor to just make up the rules as he goes along.

Before he decided to flout both law and custom with this Special Master foolishness, Governor Perry could legitimately say he had little more responsibility than many other government officials for the Pyote sex scandal - less than most, since the Texas Governor is a relatively weak office. But ignoring the law to use Jay Kimbrough as some sort of free-ranging, maverick reformer with a bully pulpit but no power makes this the Governor's scandal and the Governor's problem.

Somebody gave the Govenor bad advice.

If Kimbrough, as seems inevitable, runs up against the limits of his authority to reform the agency, it will be Governor Perry's fault for not using the statute for conservatorship. Indeed, at this point with no TYC board, there's no one who could even legally fire Ed Owens if he does a bad job!

I don't know what the Governor and his advisors were thinking. Apparently, something along the lines of, "Hey, here's an albatross! Let's hang it around our necks!"

Overreaction: Don't ban every felon from TYC employment

I don't normally pay close attention to public education policy, but I was interested to see that Sen. Florence Shapiro has passed a bill through the Senate yesterday that would require fingerprinting and criminal background checks of all public school employees and ban those who had committed sexual offenses or crimes against children ("Senate OKs criminal checks for school staff," March 27). The total cost will be $34 million.

Her definition of crimes against children includes both felonies and misdemeanors, but would still allow employment of many people with a felony record or other past crimes.

By contrast, Special Master Jay Kimbrough has (without any apparent authority) declared a much stricter policy at the Texas Youth Commission. There, unlike in the schools, Kimbrough says no one should be employed if they've been convicted of a felony of any sort in their lifetime. (Remember, first offense posession of less than a gram of cocaine is a felony in Texas, as is a third offense DWI.) Here's how Lisa Sandberg recently described Kimbrough's stance in the SA Express News ("Woes mount for troubled TYC," March 10):
The agency has allowed felons — possibly including murderers — to work with troubled juveniles as long as one of the agency's two top officials authorized it.

And those hired under the agency's 51/2-year-old policy could easily keep their backgrounds secret from the juveniles they supervised or the folks they worked with: State law requires any new TYC employee's criminal record be destroyed.

"I am past stunned," said Jay Kimbrough, the special master appointed last week to oversee the investigation of the agency's sex abuse scandal. "I don't have sufficient vocabulary to describe this. ... Goodness knows where this came from."

Kimbrough offered the public this assurance: As of this week, felons would no longer be granted the "specific authorization" needed for a TYC job.

"That's not happening," Kimbrough said, adding that the three-page Personnel Policy and Procedure Manual could not be summarily changed.
Kimbrough may not know where that came from, but I do - TYC can't find enough JCOs to staff its youth prisons. (The truth is, nobody else can find prison guards, either.) They're desperate because the failure to hire enough staff puts JCOs and kids in danger and ruthlessly exacerbates all the problems now surfacing at the agency. Turnover at some facilities exceeds 50% annually - after all, they're all in small towns out in the boondocks and don't pay very well.

Meanwhile, about one in eleven Texas adults have a felony conviction, and these folks are excluded from many jobs, making them willing to take the low pay, pitiful training, and dangerous, crappy job conditions that come with being a CO at a youth prison.

(Another aside, the reason at this point that the offending policy cannot be summarily changed, as Kimbrough put it, is because TYC's board by law sets policies and it doesn't have one anymore! Oops.)

Honestly, I've known quite a few reformed convicts who would make good JCOs - for many I think it'd be fine, particularly after some cooling off period, say, 5 or 10 years after they're "off paper" or when the sentence is finally complete. One Grits commenter feared he would lose his long-time job at TYC because of a felony conviction from 1972! It'd be absurd to get rid of such an employee. At least such a person would a) be an adult, and b) be less likely to take some kid's BS than a green, 18-year old newbie. Who knows? Perhaps such a person's reflection on their own youthful indiscretions could provide wisdom fruitfully shared with young offenders? For some, that would certainly be true.

Perhapas a better approach lies in HB 3521, heard yesterday in House Corrections. That bill takes the same approach to TYC as Shapiro takes to the schools - banning employees who committed crimes against children, but not all felons. Like a school board, TYC's board (when it finally has one again) is free to set stricter policies as the labor market allows. That's a more flexible, compromise solution that wouldn't disrupt long-time staffing (what little there is) and would allow TYC to have at least a remote chance of filling currently vacant positions.

UPDATE: Mike Ward at the Austin Statesman reports that it may not be legal to fire felons employed at TYC, which would mean terminating dozens of people.

Monday, March 26, 2007

Legislation up in Senate committee would require open files for DAs

I can't believe that when analyzing bills on tomorrow's Senate Criminal Justice Committee agenda I passed over (purely by accident) this wonderful bill, SB 643 by Carona, which would mandate that District and County Attorneys operate an "open file" policy for defendants allowing them (or usually their attorney) to view prosecutors' full case files not later than 30 days after the indictment. It's up in tomorrow's Senate Criminal Justice Committee and deserves bipartisan support.

Such policies are already in place voluntarily in some counties, including larger jurisdictions like Dallas, Tarrant and Wichita. The practice saves time and money, helps ensure a fair trial and reduces the number of successful appeals over withheld evidence.

See prior related Grits posts:

Probation funding, innocence, capital representation, wiretapping, and trespassing enhancements dominate Senate Criminal Justice Committee agenda

The Texas Senate Criminal Justice Committee will meet tomorrow to consider a jam-packed agenda on a number of important topics. Here's an overview of the legislation I consider most interesting or important:

Change funding mechanisms for probation departments
SB 166 by Sen. Royce West appears to be a well-thought out piece of legislation that creates a framework for distributing grants to probation departments, much like the Legislature did last year through a series of budget "riders," funding for which is included in the recent Senate Finance Committee recommendations. Key components include a mandate that:
In determining which departments are proper candidates for grants under this section, the division shall give preference to departments that present to the division a plan that will target medium-risk and high-risk defendants and use progressive sanction models
In addition one of several possible qualifying program attributes encouraged under the bill is the "designation of faith-based community coordinators who will develop faith-based resources, including a mentoring program." This approach looks to me to be a great first step in restructuring the funding mechanisms for local probation departments, and deserves support as part of the broader array of probation strengthening reforms being proposed this session.

Please, really, enough with the fees
SB 302 by Harris would worsen prison overcrowding at the margines (remember, the problem, for the most part, stems from a so-called death by a thousand cuts). Harris' bill is the Senate companion to HB 3010 by Rep. Paula Pierson, about which I recently wrote, it:
assess a new fee on defendants who are assigned community service by the courts as a condition of probation. ... Past Legislatures have larded so many fees on defendants that they already contribute signficantly to probationers being revoked for so-called "technical violations."
This new fee would just worsen the problem at a time when Chairman Whitmire has gone to great lengths to propose legislation that would reduce the number of technical probation violations. This bill takes the state in the opposite direction the Legeneeds to be going and this bill and others like it should be shelved until the probation system's bigger problems. are fixed.

Harris bill on swiping DLs includes better restrictions on misuse
SB 307, also by Harris, raises a bit of a conundrum when taken together with legislation that's currently moving through the House of Representatives. Harris' bill would allow vendors to swipe the electronic stripe on consumers' driver's license to gather electronically their personal information when they purchase pseudoephedrine products (which can be used to make methamphetamines, as well as solve the worst sinus problems). To his credit, Sen. Harris' bill contains the following restrictions on how this data can be used:
Information accessed under this section may not be sold or otherwise disseminated to a third party for any purpose,including any marketing, advertising, or promotional activities. The information may be obtained by court order or on request by the department or the Department of Public Safety.
However, House Law Enforcement recently approved HB 320, which would essentially let any commercial business gather the information on a drivers license from every check writer in the state with no restrictions on how they could use the information. As I wrote about that bill:
This perhaps bothers me more than it might otherwise after recently learning about an Austin man, a confidential informant for the feds who ran 3 Austin convenience stores and was found to have made hundreds of small, fraudulent transactions at or after the point of sale while he was working as their snitch. Checking my ID to let you see if the picture and the signature match is one thing. Scanning it into a computer means you've gathered that information electronically, can store it, and can use it for whatever you want.

I'm not sure I'm okay with that - banks doing it are one thing, but a convenience store requiring it starts to make me nervous.
I don't see widespread use of the driver's license swiped stripe by commercial businesses as a good idea, or at least not one worth all the potential unintended consequences, as with the federal informant mentioned in the quote above, from having consumers' personal information gathered in hundreds of different places by God knows who.

Expansions of who can use and store that data need to be comprehensively studied, not decided piecemeal in the biennial legislative frenzy. Maybe this would be a good interim study topic for this or some other committee to address the problem in a more thoughtful and comprehensive fashion?

Better access to post-conviction DNA testing
Duncan's SB 499 is a welcome piece of legislation that would better facilitate defendants' access to post-conviction DNA testing through the courts. With the recent spate of successful actual innocence claims, removing these procedural barriers seems the least the state could do.

Who can represent defendants in capital cases?
Sen. Kel Seliger's HB 528 slightly loosens standards for who can serve as a lead attorney in a capital case, reacting to shortages in some counties of qualified attorneys. I've not heard much about this bill either way and would request any interested or knowledgable readers to look at the bill and let me know what you think of it in the comments.

Wiretapping bill like giving Barney Fife a second bullet

Chairman Whitmire somewhat inexplicably has co-sponsored SB 823, a companion bill to HB 357 carried by Rep. Debbie Riddle which is also up this week. See my discussion of Riddle's bill for more detail. Basically the bill deregulates wiretapping in Texas from having a specialized unit at DPS do all of it to letting any police department that sends a cop through a special training program run wiretaps on their own. When Gov. Perry first proposed the idea last year, Fort Worth Startlegram columnist Bob Ray Sanders said the idea was as foolish and dangerous as giving Barney Fife a second bullet. UPDATE: A staffer from the bill sponsor's office responded to say "we bracket the pen register device to police that serve over 500,000 populations, so I don't think the police at Muleshoe will get the devices." That may be true, but it was Houston PD, not Muleshoe, whose crime labs were so incompetently managed that they falsely accused innocent people - if you ask me, the Barney Fife analogy goes farther than just the police in Muleshoe.

Criminal Trespass Enhancements
The remainder of the agenda, or most of it, consists of new criminal penalty enhancements. Sen. Jeff Wentworth has two up - SB 182 that slightly expands the definition of 'criminal trespass,' and SB 597 which deals with similar topics. Chairman Whitmire's SB 1097 takes penalties in the other direction, reducing the penalty for this crime to a C misdemeanor (from a B) on the first offense. With three bills up on the subject including one from the chair, I'd suspect we'll see some legislation on this issue move out of committee; we'll find out soon enough what it will look like. (Clarification: The original language of this post was vaguely worded and didn't clarify that Whitmire's bill would actually reduce the penalty - it definitely shouldn't be considered an enhancement.)

Those are the high and lowlights of the bills posted in this Senate committee. Particularly if your own state senator is on the committee, let them know how you feel about these bills, preferably before their hearing tomorrow, but if not sometime this week still isn't too late. (And if they respond, be sure to let me know what they had to say!)

Today at the Lege

See Grits' previews of today's criminal-justice related committee agendas at the Texas Legislature:
UPDATE: The Corrections Commitee meeting was this morning and the video will be available soon here. Other hearings may be viewed live - links to streaming video are on this page.

Sunday, March 25, 2007

Chief Justice Roberts looks at Dred Scott in UT-Austin lecture

Earlier this month Chief Justice John Roberts came to Austin to deliver a keynote address at the 2007 Tex Lezar Memorial Lecture - on the 157th anniversary of Daniel Webster's famous speech in support of the 1850 Compromise on slavery, he noted, that delayed the Civil War but ultimately ruined Webster's political career.

Roberts' remarks focused on the characters involved and implications of the famous Dred Scott v. Sandford decision, particularly regarding the need for courts to demonstrate "institutional humility." You can watch streaming video of the half-hour lecture.

NEXT MORNING UPDATE: While on the subject of slavery, this blogger more or less sums up my views on the proposal that Texas now apologize for the practice - I could name 50 more pressing issues the Lege should be addressing without breaking a sweat. Another blogger yesterday discussed a Methodist abolitionist martyr from West Texas (whose descendants, one supposes, wouldn't be required to apologize). And since Justice Roberts was keen on anniversaries, it's worth mentioning that this morning (3/26) is the anniversary of the Texans' pivotal defeat during the Civil War at the Battle of Glorieta Pass. Meanwhile, this blogger offfers us a little known Civil War story from Brownsville in the March 26, 1863 edition of a Corpus Christi newspaper, The Ranchero.

Full agenda for House Criminal Jurisprudence Committee - three, actually

The Texas House Criminal Jurisprudence Committee has posted a whopping THREE separate hearings next week, including two subcommittees meeting on Monday and Wednesday. See the agendas here, here, and here. Let's run through the highlights:

Monday: Subcommittee on Criminal Procedure

Skewing jury pools
HB 1577 by Laubenberg, up Monday, to my mind is a terrible bill which states that a juror cannot be removed for cause for reason of their stated unwillingness to agree to probation as a punishment when the law allows it. That's a rotten idea. In death penalty cases, jurors are routinely disqualified because they don't think they can support the full range of punishments on the high end. If that's acceptable, then jurors who say they couldn't administer the LOW end of punishments should be similarly disqualified for the same reason - they cannot promise to consider the full range of penalties available under the law. What's good for the goose is good for the gander. UPDATE: Jamie Spencer has more.

Pretrial Reforms
In HB 2674 by Alonzo, hearsay evidence would be restricted at bail hearings. That's a good bill. If such evidence is too shaky to convict, it's also too shaky to justify denying bail.

HB 2675, also by Alonzo, requires judges to hold pretrial hearings on the request of the prosecution or defense at least 30 days before trial, restricting judges' discretion to decline the request. That bill is particularly helpful to ensure defendants' potential innocence claims aren't ignored. It would ensure that all defense claims raised at least received a hearing, reducing the chance that appellate courts later would later overturn cases because a judge improperly refused to grant one.

Tuesday: Regular committee hearing

Admission of unproven conduct in sex offense cases
HB 1264 by Peña continues this committee's draconian approach to sex offenses. This legislation would authorize admission into evidence of extraneous offenses and unproven charges in certain sex offense cases. If approved, the bill would allow admission into court of any evidence that might shed light on a defendant's "character," instead of whether they committed any specific offense. With respect to the chairman, that's an utterly rotten idea - truly it would be a travesty of justice if this bill became law. Basically HB 1264 would allow prosecutors to convict someone of simply being a bad person instead of the specific crime with which they're accused. I often label legislation I don't like "bad bills" on Grits, but this legislation is beyond bad - I personally find it outright offensive.

Don't disempower judges
HB 2719 by Vaught is another bad bill that disempowers judges disallowing them from ordering community supervision in cases of injury to a child. That's a foolish idea. These cases are often complex, emotional affairs where child witnesses are reluctant to testify and family members' conflicted loyalties and interests. Judges aren't granting community supervision in the most egregious cases, but leaving them the discretion to make judgment calls about punishment serves the interests of justice, where this bill's rigid sentencing harms those interests, not to mention worsens prison overcrowding.

Closing search warrant affidavits about PR, not justice
HB 1011 by Riddle is another bad bill, a companion to SB 244 by Williams in the Senate. I discussed the bill in more depth when it was up in the Senate, and encourage interested readers to see that analysis for more background. As previously reported, the bill makes "search warrant affidavits closed records by request of the prosecutor, in this case for up to 90 days. IMO, this authority would be used more often as a PR maneuver to protect law enforcement's ass than it will to protect investigations - to put off inquiries by the media and public when something goes wrong, at least until the heat dies down." There are a tremendous variety of unintended consequences to closing these records, but the most foolish aspect is this: The person whose home is searched can see the affidavit immediately - it's only the press and the public who would be forbidden from knowing the details. The crooks targeted for searches would still have that information immediately. So the bill wouldn't protect sources from criminals, just reduce public accountability for the rest of us, with literally zero public safety benefit.

Give notice for extraneous, prejudicial testimony
HB 1773 by Escobar is a good bill that requires notice if prosecutors intend to bring evidence of prior bad acts at trial, including details about the specifics being alleged. This bill doesn't necessarily contradict HB 1264 by Peña (above), but it certainly mitigates in the opposite direction. Given my druthers, I'd like to see HB 1773 approved, and HB 1264 perfunctorily deposited in the dustbin of history. With so many wrongful convictions having recently surfaced, IMO we need more safeguards against prejudicial "evidence" being admitted in court that doesn't relate to the charged crime. Escobar's bill gives defendants an opportunity to respond to such prosecutorial tactics instead of having them sprung on the defense at trial.

Pierson pursues knee-jerk, unconstitutional add-on penalties for sex offenders
HB 3009 by Pierson is an ill-considered bill that tacks on electronic monitoring penalties to sex offenders who are "off paper" or who have completed all legal requirements under the law, requiring additional monitoring for three years after their original sentence is complete. Though IANAL, I seriously doubt this legislation is constitutional - the Lege can't just enact add-on penalties in addition to a sentence given a defendant under laws in effect at the time. I've been quite disappointed with Rep. Paula Pierson's punitive penchant for draconian, symbolic measures - particularly her grandstanding on "tuff" but poorly thought-through enhancement bills like this one. Pierson appears to know very little about criminal justice, and so far has focused on fearmongering proposals with no evidence-based support for their effectiveness. Those types of politicized bills IMO are a serious disservice to her constituents. UPDATE: A reader forwards me this letter he sent to Chairman Peña and the Criminal Jurisprudence Committee adumbrating in greater detail why this bill is a bad idea.

No need to de-regulate wiretapping
In the 'if it ain't broke, don't fix it' department, Rep. Riddle's HB 357 would de-regulate wiretapping in Texas, allowing local law enforcement agencies to operate their own "pen registers" and other wiretapping equipment. Right now all wiretapping in the state runs through the Department of Public Safety, ensuring uniform standards and application of wiretapping regulations that simply could not be enforced if every local agency was doing it. I've never heard of any circumstance where DPS' involvement in wiretapping cases caused any problems - this bill is a solution looking for a problem. And since there really isn't one, I hope the committee rejects it out of hand. This legislation could lead to a slew of unintended consequences and outright scandals down the line that the current regulatory setup is designed to avoid. It would be foolish and irresponsible to endure those risks when there's no evidence of problems with the current system.

Pretrial mediation - here's a legislator using his noggin
HB 2437 by Escobar is a very interesting bill that could have a significant impact on reducing jail overcrowding and misdemeanor court caseloads. The bill would create pretrial victim-offender mediation programs in counties over 100,000 for misdemeanors and state jail felonies. Offenders who successfully participated in mediation with victims could avoid a conviction with an apology and victim compensation (or community service if compensation isn't applicable). If mediation is unsuccessful or if a defendant fails to fulfill terms set by the mediator, they would still be prosecuted. I'd be curious as to the opinions of any defense attorneys regarding this legislation - it looks like a good idea to me, but the devil is in the details, particularly in the funding mechanisms, and I could be missing something. Even so, I'm happy Escobar proposed the bill, and it looks to me like a great first step toward the type of alternative, "restorative justice" approaches advocated, e.g., by the Texas Public Policy Foundation.

Enough with the fees already
Another ill-conceived bill by Rep. Pierson up Tuesday, HB 3010, would assess a new fee on defendants who are assigned community service by the courts as a condition of probation. Again, Ms. Pierson appears to have little understanding of the big picture issues surrounding her various proposals. Past Legislatures have larded so many fees on defendants that they already contribute signficantly to probationers being revoked for so-called "technical violations." While the House Corrections and Senate Criminal Justice Committees are struggling with substantial reforms to reduce prison overcrowding and technical revocations, this committee continues to churn out new penalty enhancements and proposes new fees that worsen the problem.

Ain't That Tuff Enough? Irresponsible Enhancements Keep Coming
If the Texas Legislature passes NO new criminal penalty increases ("enhancements") this session, our state's prison population is projected to outstrip current capacity by 17,000 beds in just five years. For every new penalty enhancement passed, that problem only becomes worse. As the House committee whose jurisdiction includes the penal code, Criminal Jurisprudence is the main gatekeeper on new enhancements. But so far this session, the gatekeeper has been asleep at the switch, approving numerous new penalty increases with no regard, or even for the most part discussion, of what impact it would have on prison overcrowding. (To her credit, Rep. Terri Hodge has been the only consistent voice on that committee raising such concerns - she's certainly not getting much help opposing enhancements from her fellow Dallas Democrats, to their discredit.)

Tuesday's regular committee agenda contains several additional enhancements, then on Wednesday an entire subcommittee agenda is devoted to criminal penalty increases. Bottom line, these penalty enhancements represent grossly irresponsible fiscal policy and, more often than not, a polticization of justice rather than improving public safety. All should be shelved until Texas' prison capacity crisis has been solved. Just to quickly run through the enhancements on Tuesday's regular agenda (I'll deal with the ones in the subcommittee if and when they're voted out):
  • HB 1586 by Flores creates a new offense of shining an intense light at an aircraft. Naturally, all types of interference with aircraft is already a crime, which makes this legislation a) symbolic and b) meaningless, but c) a potential pile-on penalty to allow prosecutors to rack up multiple charges for the same, already illegal offense - that enhances their position in plea bargaining purposes, but it doesn't make an already illegal act any more illegal.
  • HB 1767 by Peña enhances felony prison sentences for stealing wire from transportation signs, signals and devices. Again, this is already illegal, and there's no justification for the notion that stealing wire is more reprehensible than other types of theft. As usual, the Legislative Budget Board says this bill will have zero fiscal impact, but that's absurd. This bill enhances misdemeanor conduct from a misdemeanor to a third degree felony (2-10 years). By definition every person convicted under the law would incur increased incarceration costs for the state at a time when Texas prisons are already overflowing.
  • HB 2950 by Mallory Caraway enhances penalties for crimes commited that include driving a vehicle through a wall, window, garage door, etc. This makes little sense - driving your car through someone's wall as part of a crime, naturally, is already its own criminal act. There's zero reason to consider busting through a plate glass door with a car is any worse than doing it with a sledgehammer. So why enhance the penalty? This bill should have gone to the enhancement subcommittee - it's a silly piece of flotsam that doesn't really merit the full committee's attention.
All these enhancements should be rejected. It's simply irresponsible to keep boosting penalties when the state can't afford to incarcerate the people we imprison now.

Anyway, those are this week's high and lowlights at the Texas House Criminal Jurisprudence Committee. As always, to learn more about the bills go to the capitol website, which is an amazing resource for tracking Texas legislation.