A Texas Moratorium Too?

Will the US Supreme Court's decision to examine lethal injection protocols in Kentucky mean a moratorium on executions in Texas?

That seems to be the case for the rest of the country but 5 of 9 Texas Court of Criminal Appeals judges and the Texas Attorney General want to continue. For the full story read the New York Times coverage, Doc Berman at Sentencing Law & Policy, and Steve Hall at the Stand Down Project:

• NYT: Texas planning new execution despite ruling
• Berman: A Texas companion? A lenghty de facto moratorium? What the Baze f@%$, SCOTUS?
• Stand Down: Texas coverage of LI status and the Chi case
  

Once again we find the Texas Court of Criminal Appeals thumbing its nose at the US Supreme Court. How much hubris does it take to continually flout the Supremes on the highest-profile issue the CCA faces? (I'm still looking to find out who voted which way on the CCA; as of this morning the opinion and vote weren't posted online).

At the end of the Times' article we learn that an execution earlier this week was allowed because the CCA refused to grant lawyers from the Texas Defender Service an extra 20 minutes due to a last-minute computer crash. Reported the Times:

The stay for the Texas execution was issued two days after the court did not stop Texas from executing another inmate, Michael Richard, leading to some confusion about its intentions.

Lawyers in the case on Tuesday said their appeal had been turned down because of an unusual series of procedural problems.

Professor Dow said the computers crashed at the Texas Defender Service in Houston while lawyers were rewriting his appeal to take advantage of the high court’s unexpected interest in lethal injection.

Because of the resulting delay, the lawyers missed by 20 minutes the 5 p.m. filing deadline at the Texas Court of Criminal Appeals in Austin, where the appeal had to go first before moving to the Supreme Court.

The Texas court refused their pleas to remain open for the extra minutes. Because the lawyers missed that crucial step, Professor Dow said, the Supreme Court had to turn down the appeal, and Mr. Richard was executed.

But on Thursday, with a more carefully crafted appeal for Mr. Turner, and the Texas court’s closely split rejection, the Supreme Court called a halt to another lethal injection.

One frequently hears complaints about criminals who receive leniency in the courts because of a "technicality," but in this case Michael Richard was put to death because of one. I know court deadlines are awfully strict, but I wonder if the CCA has ever granted a few extra minutes to a prosecutor whose computer crashed at deadline?

I might be less skeptical of the CCA's decision to not cut Michael Richard and the Defender Service a break if a majority of CCA judges hadn't chosen two days later to openly defy the US Supreme Court, causing SCOTUS to issue its own execution stay. Even after that, Texas plans to pursue more near-term executions, reported the Times:

“The Supreme Court’s decision to stay convicted murderer Carlton Turner’s execution will not necessarily result in an abrupt halt to Texas executions,” said Jerry Strickland, a spokesman for Attorney General Greg Abbott of Texas. “State and federal courts will continue to address each scheduled execution on a case-by-case basis.”

I'm a little surprised that General Abbott would join the CCA majority to advocate continuing Texas executions after the Supremes' have stated their disapprobation. It's not like SCOTUS has been shy about slapping down Texas when the CCA tries to spite them. A lot of lawyers and judges in this state have grown tired of the CCA embarrassing Texas in the national legal eye; I'd think Abbott would want to distance himself from such an imbroglio.

Anyway, at this point the smart money probably banks on a de facto Texas moratorium (perhaps imposed straight up by SCOTUS) until the Kentucky litigation is resolved, but that doesn't mean Texas officials won't do everything in their power to get around it.

Bexar Loses Jail Chief

The administrator of the Bexar County jail, Chief Deputy Dennis McKnight resigned this week in the wake of internal changes under the new Sheriff, reports the Express News.

In this writer's opinion, McKnight was probably the most innovative jail chief in the state, so this will be a major loss for Bexar County, which struggles daily with overincarceration problems. He was among the first to propose an idea to reduce overcrowding (in a guest column on Grits) that wound up passing as new 2007 Texas legislation giving police officers discretion to give citations for some B misdemeanors. McKnight may run for Sheriff himself, said the Express News. He'd be a good'un.

End of Watch

The Huntsville Item published a moving account of the funeral for Texas Correctional Officer Susan Canfield who died trying to prevent two inmates from escaping during a prison work detail. Fittingly, a riderless horse accompanied the casket as more than 1,000 officers lined the street in tribute.

God bless her grieving family and friends, and may she rest in peace.

Dallas PD to participate in study of lineup procedures

The new web poll I've posted for the week asks: "If a serious crime were committed and you were falsely accused, would you have an alibi for last night?" If your answer is "No," or "only part of the evening," how would you feel if a crime victim picked your face out of a photo lineup and insisted that you were guilty?

That scenario plays out more often than most people realize, and sometimes innocent people are convicted and sent to prison, as evidenced by the string of DNA-based exonerations in Dallas.

The Texas Legislature may have declined to improve police lineup procedures this year, but the Dallas Police Department and Dallas County DA Craig Watkins are moving forward as part of a national study to identify best practices. Though historically eyewitness testimony has been given the status of a courtroom gold standard, "photo lineup methods vary from agency to agency, and more and more research continues to cast doubt on the accuracy of eyewitness testimony," the Dallas News reported this week. ("Lineups by police get long look," Sept. 26)

The decision to participate in the study, reported the News, sprang from Dallas' recent string of wrongful convictions overturned. Said the News:

there's a consistent culprit in the bad cases, which date back to 1981. Notoriously unreliable eyewitness testimony was relied on in at least 11 of them.

Now the Dallas Police Department is joining the national debate among law enforcement agencies, academic institutions and state legislatures over the best way for police to conduct photo lineups. Dallas plans to be one of several cities taking part in a study that seeks to come up with the best possible way to confirm eyewitness identifications.

The $300,000 federally funded study will be led by the Washington-based Urban Institute beginning in January. Officials have also been in discussions with Los Angeles and Washington, D.C., as well as other cities, about participating in the study.

Surely, one would think, even the most ruthless "tuff on crime" maven wants the right person punished, and faulty lineup procedures invite such mistakes. The News has a good description of problems identified with traditional police photo lineups:

Most law enforcement agencies, including Dallas police, have in recent years favored a traditional method in which six photos are shown simultaneously to the victim or witness by an investigator who knows the identity of the suspected guilty party.

But many psychologists consider the traditional method to be similar to conducting a multiple choice test where "none of the above doesn't seem like a possible answer," said James Doyle, director of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice in New York.

"What the psychologists believe is happening is that witnesses will pick out the person who looks most like the perpetrator by comparing the people in the array to each other," Mr. Doyle said.

By knowing the identity of the potential suspect, the administrator may also be giving off cues – likely inadvertently – to the victim or witness while conducting the lineup, he said.

Academic research now tends to favor an approach called sequential double-blind, in which photos are shown one at a time by an administrator who doesn't know who the suspect is.

Showing pictures one at a time provides more accurate results, Mr. Doyle said, because the method is akin to giving a true-false test.

"They have to compare that picture with their memory of the crime," he said "They can't compare the pictures with each other."

Kudos to folks in Dallas for agreeing to participate in the study, and let's hope by the time the 81st Texas Legislature rolls around in 2009 Texas can get past the debate over whether to change and move forward with best practices that prevent more convictions of innocent people.

MORE: See more alibis from Fark. Welcome Farkers!

UPDATE: The Eyewitness ID Blog says the Dallas study's methodology sounds suspect.

2/3 of Grits readers say "Legalize pot"

Time to post the results from last week's reader poll. Following up on this Grits item, the question was:

According to the GAO, 14.6 million Americans smoked marijuana last month. Should all these people be arrested?

Out of 425 people who responded to the survey (!), only 5% of you thought it made sense to arrest marijuana smokers, while a whopping 2/3 (67%) believed marijuana should be straight up legalized. The rest didn't support full-blown legalization but also thought arrest was inappropriate.

While Grits readers' opinions surely don't jibe exactly with public opinion (that's almost double the national figure I last saw for legalization support), other data makes me think Texans are leaning away from jailing pot smokers. In Nacogdoches recently in Deep East Texas, the Daily Sentinel asked in a non-scientific web poll what should be done about that county's overcrowded jail. Six percent said rent more beds, 28% said build a bigger jail, while 66% supported "routing certain types of offenders to other non-jail sanctions, services and options." (See p. 25 of this pdf report.)

In Nacogdoches and elsewhere in the state, the most immediate way to route low-level offenders out of the jail is implementation of HB 2391, signed by Governor Perry earlier this year. That new law allows citations instead of arrest at an officer's discretion for certain nonviolent misdemeanors. Texas isn't about to "legalize" marijuana in the near term (though legislation was filed in each of the last two sessions to lower pot penalties), but HB 2391 is the best short-term vehicle for diverting pot smokers and other low-risk offenders from local jails.

In fact, here's a good homework project for Grits readers who oppose arrest for pot offenses: Call your local police or sheriff's department and find out whether they're allowing their officers to exercise this new discretion under HB 2391, then come back and let us know in the comments (or via email) what they say. If they're not doing it, be sure write a letter to the editor of the local paper explaining why they should, and forward a copy to your local pols.

I think if people did that, they'd find more public support in most parts of the state compared to a decade ago. These two non-scientific surveys tell me Texans may be less interested in locking up small-time pot offenders than a lot of our "tuff on crime" politicians tend to believe, at least when the issue is framed in terms of dollars and sense.

Don't be afraid: Feds issue Nacogdoches Jail crowding recommendations

The USDOJ consultants giving advice on Nacogdoches County Jail overcrowding have produced their report (pdf) which looks excellent (and not just because Grits is mentioned in the footnotes). More detail after I get a chance to read it thoroughly, but offhand this conclusion jumped out at me:

The system is becoming more risk averse. The interviews and the data analyses show that the system is becoming more risk averse.

For example, the interviews reveal that the number of personal recognizance bonds has declined noticeably. The consultants were told that two of the four Justices of the Peace rarely issue a PR bond.

As another example, we learned that, as of September 1, 2007, HB2391 gave local law enforcement discretion to issue citations to persons who have been arrested on low level non-violent misdemeanor matters. Ordinarily these people would be transported to the jail. Now they can simply receive a summons to appear in court. The City of Nacogdoches has begun to use the summons procedure. The Sheriff’s Office has not.

I love the use of the bureaucratese, "risk averse" ... you can tell the consultants are from out of state, can't you? In East Texas the word for that is "skeered."

Lawsuit Settled! TYC Pepper Spray Policy Rescinded!

Two pieces of news, I just confirmed with Advocacy Inc. attorney Richard LaVallo.

First, as predicted (not to brag, but I called it a "slam dunk"), the Texas Youth Commission has settled (read: lost) the lawsuit by Advocacy Inc. and Texas Appleseed and rescinded the Aug. 2^nd directive allowing more prolific use of pepper spray. I've uploaded a copy of the agreed judgment.

The prior TYC policy has been reinstated until the agency can go through a formal rule making process to legally change the administrative code.

LaVallo said Advocacy and Appleseed would like to assist the agency with drafting rules that are compliant with the Morales v. Turman settlement, which originally required the current, more restrictive language. At a minimum Advocacy will submit comments encouraging them to follow the Blue Ribbon Report's recommendations on pepper spray. If the agency doesn't create a policy that complies with Morales v. Turman, he said, they'll make a decision about whether to head back to court.

In other legal news, LaVallo said there's a hearing October 25 for a client of his who TYC wants to transfer directly to TDCJ. He said the case will ask a court to resolve whether TYC should follow SB 103 and its own rules for 19-20 year olds, or make a different decision based on "public safety." LaVallo knew of other individual cases, too, that were likely to head to court on the topic, he said, and expected a case of first impression to crop up soon.

Having predicted TYC court losses on both these issues (one down, one to go), I'll make a further prediction: TYC will see quite a few more legal losses before it sees many victories. First in juvie criminal courts, then in civil litigation. Their leaders have embarked on a legally troublesome path, ignoring expert advice to model their policies based on their experience in adult corrections.

In the wake of today's setback, the agency has an opportunity to learn some important lessons. Administrators should make claims of "transparency" actually mean something, and work with their critics instead of forcing them into court. Pushback from trying to ram through new use of force policies outside the legal process should teach agency leaders they have to play by the rules. If they would, they'd start to save themselves a lot of trouble.

UPDATE: See Dallas New coverage.

God Bless Congressman Ron Paul

While Doc Berman rightfully concerns himself with Barack Obama's newly articulated criminal justice positions, I've got to give a credit to Texas' only entrant into the 2008 US presidential race. Erstwhile Republican Congressman and libertarian legend Ron Paul consistently is the most vocal candidate on the stump from either party speaking plainly, honestly and guilelessly about every aspect of the criminal justice system, and God bless him for it.

Via Pete Guither, I give you Congressman Paul from the PBS presidential debates on the drug war, the Jena 6, and why recent DNA exonerations changed his mind about the death penalty:

Youth Commission decision violates law, agency rules on 19-20 year olds

Here's a prediction based solely on circumstances, I have no inside knowledge: An attorney somewhere in Texas will soon sue the Youth Commission on behalf of one of the 79 youth offenders with determinate sentences being kept there past their 19th birthday.

And they'll win.

The Dallas News follows up today on the Statesman's Mike Ward's report earlier this week that the Youth Commission will not release 19-20 year olds with determinate sentences, as previously announced.

Neither paper reported, however, that an "emergency rule" enacted August 31, two days after a recent joint legislative hearing, requires such youth to be transferred to TDCJ parole by their 19th birthday. This week's decision contradicts not only SB 103 but this recently passed rule. Here's the language that I think unequivocally forbids the new path they've chosen:

(d) Criteria for Discharge. A sentenced offender shall be discharged from TYC jurisdiction upon the earliest of the following events:

(1) approval by the committing court for transfer of the youth for confinement in TDCJ; or

(2) expiration of the youth's sentence, unless:

(A) the youth is committed under concurrent determinate sentence and indeterminate commitment orders; and

(B) the sentence is completed prior to expiration of TYC's jurisdiction; or

(3) transfer to the TDCJ Parole Division on the 19th birthday for youth who:

(A) have not completed the court-imposed sentence; and

(B) have not been approved by the committing court for transfer to TDCJ for confinement.

(e) Approval Authority. The executive director or his/her designee is the final approval authority for referral to court for a transfer hearing and for transfer to TDCJ Parole Division for youth not referred to court.

So if a court hasn't approved incarceration in TDCJ or the youth's sentence hasn't expired, on their 19th birthday this new rule - already in effect because of its "emergency" status - requires youth to be transferred to TDCJ parole. In theory, the rule says the TYC executive director has final authority to do that, but we all know that conservator Ed Owens' wife, Rissie, egged on by the Statesman and critics like Williamson County DA John Bradley, balked at paroling many of the youth, which is why they're still incarcerated.

In perhaps the greatest irony in the episode, TYC ED Dimitria Pope said to the Dallas News, "Let's just say there is not a line item [in the agency's budget] that specifically says 'lawsuits.'" Well, no kidding! Maybe y'all should consider that before following through on a decision that violates state law and your own recently created policy! Their own attorneys told them during session the problem was coming.

I think Sen. John Whitmire makes a big mistake by telling legislators to trust TYC's general counsel Steve Foster, who has made numerous ham-handed mistakes since arriving this summer. At this point it appears Foster doesn't know what he's doing, and truly isn't up to the job of general counsel for a state agency. Whitmire told the News:

"They're abiding by their legal counsel," said Sen. John Whitmire, D-Houston, who chairs the Senate Criminal Justice Committee. "The legislators that have been so involved need to allow this agency to operate by listening to their attorneys and using their own good judgment."

Well, these are the same attorneys who just had the agency approve a rule as an "emergency" that forbids them from doing what they announced three weeks later. Truly, if a proposal to retract the 8/31 rule isn't in today's Texas Register, I can see no reason but cluelessness. (UPDATE: Whether from cluelessness or another reason, the new Register contains no retraction of the 8/31 rule.) The same general counsel approved an administrative directive in August to change use of force policies in ways that violate GAP policies and the Morales v. Turman settlement. Listening to their attorneys is starting to get TYC into a lot of trouble, in my view.

As Ms. Pope said, the agency has no line item for lawsuits, but announcing changes that blatantly violate your own (recently changed) policies virtually guarantees we'll see more of them, and that they'll be successful. Even if legislators don't seem to care, agency leaders must still obey the law because attorneys representing kids' rights will inevitably make them. They can't bob and weave around this problem until the 81st Legislature, which is the next time Whitmire and Co. get a chance to fix it, barring a (much-needed) special session on TYC.

Colfax to guest blog UTEP interrogation and confessions conference

A conference at UT El Paso on interrogation methods and false confessions began yesterday and continues today and tomorrow. I had lunch earlier this week with Edwin Colfax, the Austin director of the D.C.-based Justice Project, who agreed to write up some of the highlights for Grits' readers when he gets a chance. Colfax, who arrived in Austin from D.C. this spring, recently produced two important reports on innocence-related topics - one regarding criminal discovery and another on standards for jailhouse snitch testimony. Thanks Edwin for offering to guest blog! I'm looking forward to it.

Meanwhile, I'm equally pleased to thank the reader, who wishes to remain anonymous, who ponied up for me to attend the Sentencing Conference I'd mentioned in Austin next month, which means Grits can provide coverage from that event as well. I appreciate it; financially I couldn't attend without the help.

Slowly but surely I feel like this blog is turning into a place where communities of interest can have a discussion and self-educate instead of just a spot for me to spout an opinion - a palimpsest, to use my favorite word of the day, not just a running monologue. No doubt both knowledgeable reader comments and participation at such higher levels really help achieve that goal, so thanks readers! This blog wouldn't be the same without you.

SCOTUS stops Texas execution pending lethal injection decision

Sentencing Law & Policy and the Stand Down Project have the details.

Grading Graffiti, and What Do Youth Want?

Two interesting graffiti-related news items caught my eye this week, both from overseas. A writer in the UK Guardian suggests a unique graffiti response to improve unsightly tags: Giving them grades:

Walls don't look much better after their graffiti have been washed off than they did before, so we might as well stop doing it. In environmental terms, the washing-off makes a worse mess than the painting ever did. The wall-painters themselves will paint over each other's work, especially if they consider it feeble. A far less costly option is for us all to make our own stencils giving the defacers marks out of 10, to remind the artists that there are people out there who have eyes to see, and as much right to say what they think as the artists. The work then becomes a palimpsest, a dialogue between artists and public. Most tags deserve the single-word comment "prat."

While I think it's important to quickly remove uninvited graffiti, I like the grading idea a LOT (as well as the idea of a graffiti wall as a "palimpsest"). Maybe we should all start carrying around Sharpies to inform graff artists what we think of their work. Perhaps repeated low scores would even encourage graff writers to "paint responsibly." Nobody likes a bad grade.

Another interesting graff-related story in the Washington Post this week describes how graffiti artist Abdullah al-Alwani , a.k.a. "X5" in Jiddah, Saudi Arabia, has emerged at the center of a debate over how to identify and satiate frustrations among Saudi youth:

[Municipal leader] Abo-Umara, 45, said young men like Alwani should not be held accountable until officials are sure they've done right by local youth.

"What have we done for young people? Have we asked them what they need or want?" said Abo-Umara, wearing a flowing white head scarf and long robe. "Until I talk to them and find out why they are scribbling all over Jiddah and do my part in offering them the services we're supposed to provide, then I can't punish or criticize them."

True to his word, Abo-Umara held a two-day workshop called "What Do Youth Want From Jiddah?" in July, shortly after his meeting with Alwani. More than 200 young men and women attended, on separate days, and their list of demands included cinemas, public libraries, and music and art centers.

The young women asked for private beaches for women and girls, for at least widows and divorced women to be permitted to drive, and for boys who harass them to be fined.

Both groups requested sports facilities, of which there are very few in Saudi Arabia.

Abo-Umara was able to implement one demand immediately: walls dedicated to graffiti.

At the palm-tree-lined Faisal bin Fahd walkway, women in black cloaks, black head scarves and running shoes walk determinedly, as men in shorts and T-shirts jog past. On a grassy embankment in the middle, more than 40 graffiti canvases have been set up.

On a recent day, young men on their knees mixed paint and drew. On one canvas, a dejected face had been drawn between the words "No Girls" and "Why?"

Another canvas depicted a group of young men behind cage bars, looking out at a mall-lined street.

"Young men are oppressed here," said Mohammad Qarni, 20, sitting on a bench painted with swear words. "We don't have anything to do in our spare time, and we're not even allowed into malls. That's why I started spray-painting. As a protest."

I wonder why youth in America start spray painting? Though at least boys can go to the malls and date girls, I'll bet boredom has a lot to do with graff writing in America, too. I wonder what graff writers want? I wonder if anyone has asked them?

MORE: The Dallas Observer has a slideshow up of local graffiti, while Dirty Third Streets has some cool pics up from the Austin Pipe and Supply Company.

Tom Henson: Super Lawyer

Via my brother John's blog, Wondering Thoughts, let's call this off-topic post a point of personal privilege to boast that my father was named to Texas Monthly's list of "Super Lawyers" this year! Congratulations, Dad! John wrote:

My dad, a.k.a--"Affidavit Face," is in the recent Texas Monthly, showing up on the list of Super Lawyers 2007. Here is the listing in the magazine, stating what everyone has known for 40 years! He has always been the best and one who earns the respect of those who know him--especially those who are plaintiffs.

For the record, I know nothing about the moniker "Affidavit Face."

A couple of the other lawyers in this photo - especially Tracy Crawford and the legendary Jack Flock - I've known my whole life and are like my own family. Crawford was also named one of TM's "Super Lawyers." Congratulations one and all! I'm proud of you!

Habeas writ: Dallas judge improperly linked ability to make bail with appointing counsel

Harry Williams, an attorney with the Texas Fair Defense Project, emailed today to say TFDP just filed a writ whose outcome could have ripple effects around the state:

I wanted to let you know about a writ the Texas Fair Defense Project filed today (ed. note: uploaded here).

It seems that in Dallas County, asking for a court-appointed lawyer is enough to get you thrown in jail.

Joey Charbonneau was arrested on felony charges, placed in the Dallas County jail, and appointed a lawyer. The problems started when he was able to bond out. At that point, he was told by a clerk to Judge Don Adams, in Dallas County Criminal District Court No. 2, that defendants on bond out are not eligible for appointed counsel. If he wanted an appointed lawyer, Charbonneau would have to surrender his bond and return to jail.

By Texas law, however, judges are prohibited from considering whether a defendant is able to make bond when appointing counsel. The only exception is if the ability to make bond shows the defendant has money of his own. Often, however, family or friends provide the bail money, and by state law the judge can’t require a defendant to get his friends or family to pay for a lawyer. The U.S. Supreme Court has said the same thing.

Charbonneau didn’t have a job or other assets, so he persisted in asking for an attorney. When he finally got in front of the judge to request counsel, Judge Adams told him to get a job and come back the next day with a hired attorney. As you might imagine, it’s difficult to find work when you are facing a felony charge. When Charbonneau appeared the next day, unable to find a job and without an attorney, Judge Adams again told him to get a job and come back with a hired attorney. Judge Adams also suggested that Charbonneau’s father, who lives on disability payments, hire a lawyer for him. Yesterday, after several days of this routine, Judge Adams raised Charbonneau’s bond and threw him back in Dallas County jail. While Judge Adams was smart enough not to say he was throwing Charbonneau in jail for asking for appointed counsel, what he said would not, as it were, stand up in court: Adams said Charbonneau’s bond was “insufficient,” although Charbonneau was showing up to court nearly everyday to report on his progress in his job search.

This is a statewide problem. Defense lawyers in Harris County filed a judicial complaint against a Harris County district court judge for threatening to lock up defendants who did not hire lawyers. The defendants, like Charbonneau, were released on bond but could not afford to hire counsel. TFDP has documented this problems in several other courts across Texas .

It’s a weird dynamic, where judges are willing to make taxpayers pay for expensive beds in county jail, but get very stingy when it comes to appointing counsel.

The Dallas courthouse crowd will especially want to pay attention to this one: Harry was one of the attorneys who successfully sued a Texas drug task force in the Hearne case, and his boss, the inestimable Andrea Marsh, is a recognized expert on Texas' indigent defense laws. If they're headed to court on this, my guess is they've got the goods.

Harry's right, this is a weird dynamic; another example of how each part of the criminal justice system often appears to operate as though it's unaware of how decisions affect all the others. In the end, keeping a defendant in jail to punish them for not being able to afford a lawyer really just punishes taxpayers. That's who must pay $40 per day or so to incarcerate the defendant and will likely still end up paying for his lawyer. Meanwhile, the defendant can't work, earn money, pay taxes, etc., even if they wanted to; what's the sense of that?

In this case, the decision seems particularly bizarre because Dallas has a public defender, plus the county is under pressure from the federal government to reduce jail overcrowding. I'm sure Judge Adams thought he was saving the county money, but he's costing the county more than it saves. Ironically, if the Fair Defense Project succeeds, it may force the county to change short-sighted practices that have soaked the taxpayers through high jail costs and needless lawsuits for years.

Good stuff from Texas criminal justice blogs

I wanted to recommend some terrific recent offerings from the Texas blogosphere on criminal justice topics:

From Texas Prison Bidness:

• Sheriff's confidante pleads guilty in Bexar/Premier management scandal
  
• The Hidden Cost of Private Prisons
• Jail alternatives can save counties money
• How do you explain a problem like Hutto?
• Reporter who broke CCA case nominated for Texas Emmy
• A closer look at LCS Corrections
• CCA spent $1.3 million on lobbying in first half of 2007

From Dallas South:

• Just go read everything Shawn has written on Jena, La.
  

From Defending People:

• Mark Bennett confronts media bias against homeless, mentally ill veterans
• Advice to new criminal defense lawyers

From The Defense Perspective:

• Anonymous Criticism
  
• Stephen Gustitis on pretrial jitters
• Gustitis blogs first day of felony jury trial
• Day One Complete
• Day Two Complete
  

Texas Council on Probation

• Sweeping changes needed for Texas: New Department of Probation

Austin Criminal Defense Lawyer

• Execution is proof of guilt in Texas
• The War on Drugs is the new New Deal

Waco considers GPS to relieve jail overcrowding

Another county struggling with jail overcrowding - McLennan (Waco is the county seat) - wants to find alternatives to incarceration instead of building a new jail, reports the Waco Tribune Herald ("County officials consider a technological solution to jail overcrowding" Sept. 26). Reporter Tommy Witherspoon describes the new mindset judges must adopt thanks to scarce incarceration resources:

McLennan County’s burgeoning jail population often forces judges to conduct a form of mental gymnastics when deciding what punishment best suits a defendant.

Recently, 19th State District Judge Ralph Strother performed a similar exercise when considering the fate of a defendant who tested positive for cocaine and marijuana while awaiting sentencing.

“I didn’t think I could just let this guy go unscathed,” Strother said. “But I thought, ‘Do I really want to give him upfront jail time with the jail population the way it is?’ My answer was, ‘Yes, I do, because he deserves it.’ But I am going through that mental process every time because it just puts another burden on the system.”

County officials have been dealing with increases in jail inmates for some time, with the population at the McLennan County Jail on State Highway 6 reaching an all-time high of 1,090 inmates in recent weeks. That was 140 over capacity.

On Monday morning, there were 920 inmates in the Highway 6 jail and 87 inmates at the downtown jail on Columbus Avenue. The county leases the downtown jail to the private detention company, CiviGenics, but relies on it as an emergency overflow unit.

To help stave off another major construction project, which might be inevitable anyway, McLennan County officials are considering the use of ankle monitors for low-risk inmates to free up space in the county jail.

Precinct 4 Commissioner Ray Meadows said the concept has the potential to save the county $880,000 a year by releasing inmates with the monitors instead of paying CiviGenics to keep them in the county-owned downtown jail.

The probation director, in response, has proposed using electronic ankle monitors as an incarceration alternative, starting with offenders on work release who leave the jail every day to work then return again at night:

Curtis Hand, director of the McLennan County Adult Probation Department, said his department is in the midst of a pilot program involving ankle monitors for felony probationers. Linked to a global positioning satellite system, the monitor tracks a defendant’s whereabouts and alerts authorities if he or she strays into forbidden areas.

Hand also thinks the ankle monitor system can help the jail overcrowding situation and perhaps delay another major jail construction project for a few years.

I'm glad folks in Waco are looking for incarceration alternatives, but personally I'm not a great fan of using GPS monitors so widely for low-level offenders, mostly because they're a lot more labor intensive than most people realize, at least if they're going to provide a real measure of added safety. Some in law enforcement consider GPS as a panacea, but I view it as a tool in the toolbox that's sort of like a router - you don't use it every day but it's occasionally useful when you need it. Only the most dangerous offenders who require the most intensive supervision justify GPS, because the extra monitoring expense can't be justified for low-level offenders.

Like many other counties, excessive pretrial detention is causing McLennan's immediate problem. As of Sept. 1, 135 misdemeanants and state jail felons were incarcerated pretrial in the McLennan County jail, while they're only 87 inmates over capacity. The vast majority of these defendants will receive probation. (Indeed, offenders convicted of state jail felony drug charges MUST receive probation on the first offense.) So it makes little sense to incarcerate these folks pretrial when they're likely to get probation anyway. McLennan judges could solve the overcrowding problem overnight by giving more such low-level offenders personal bonds pending trial.

The day-reporting center modeled in Tyler may be a more practical solution for Waco's medium-term strategy to reduce jail costs.

In any event, it's good to hear of county officials discussing incarceration alternatives instead of immediately jumping to more jail building. There are many better solutions out there if the pols will look for them.

RELATED: See Grits' best practices to reduce county jail overcrowding, Part 1 and Part 2.

CO dies during escape attempt by murderers working outside the walls

Let me offer my condolences to the family and friends of Susan Canfield, the correctional officer who died Monday during an escape attempt by two convicted murderers. Reported the Houston Chronicle:

A correctional officer on horseback apparently violated state prison policy when he allowed an inmate on a work detail to approach him, an official said Tuesday, a lapse that possibly led to another mounted officer's death during an escape attempt. ...

Canfield's death has raised serious questions about which inmates should be allowed to work outside a prison as well as how they should be monitored.

Both inmates had been convicted of violent crimes, yet both qualified for outside work. Inmates may be considered for outside work only if they have served at least 10 years — a mark that Martin passed only last month — and have a clean disciplinary record.

While Martin's record was clean enough for field work, it was not a spotless one.

On July 17, he was relocated to Wynne from the Polunsky Unit in Livingston after it was discovered he engaged in sexual behavior with a licensed vocational nurse at the unit.

"It's a pending investigation," said John Moriarty, TDCJ's inspector general, who added that the nurse no longer works for the prison system. No charges had been filed against the nurse as of Tuesday.

As a result of the incident, the prison system revoked 30 days of good time accrued by Martin. Good time is a credit inmates earn for good behavior.

Despite the loss of good time, he was approved for field work because the sexual encounter did not affect his eligibility for outside duties.

The way inmates are considered for jobs at state prisons was changed in 2003, following the escape of seven Texas inmates from a South Texas prison.

Previously, inmates who showed they had adjusted to prison life by serving their time without incident or incurring disciplinary actions, no matter how long they had been in prison, could qualify. Now, they must serve at least 10 years.

UPDATE: Thanks to a commenter for pointing out that TexasJustice.org has more, including details on funeral arrangements, this clarification of the offenders' status, and a list of officers on duty at the time of Officer Canfield's murder. MORE: One of the captured escapees tried unsuccessfully to kill himself early this morning. MORE: Escapees may face death penalty.

RELATED: Three inmates from the Nacogdoches County jail escaped yesterday, and unlike the escapees at the Wynne Unit they've not yet been captured. Apparently a door at the jail was left unlocked by inspectors, said the Sheriff, and an electronic indicator failed to alert guards when the inmates left. MORE: The Nacogdoches Sheriff has called off the dogs, reports the Daily Sentinel, which has more on the lock problems that led to the escape. AND MORE: A Nacogdoches jailer was arrested for helping the inmates' escape. MORE: A brother of the Nacogdoches jailer was also arrested. Two of the three have been recaptured.

All in the Family: TYC's Yo-Yo policy on 19-20 year olds changes again

I'd hate to be the parent of one of the 19-20 year olds currently in legal limbo incarcerated in TYC. Every few days their status seems to change. According to the Austin Statesman's Mike Ward ("Youth commission changes course on older offenders," 9/25),

On Tuesday, Dimitria Pope, the agency's acting executive director, announced that 79 of 159 older offenders will be kept in agency lockups, and another 40 will remain on Youth Commission parole.

Only 24 will be transferred to adult parole, and eight are being referred to judges for re-sentencing to an adult prison, she said. Another eight have been released because they turned 21.

It's hard to understand how we wound up here. The Texas Lege in SB 103 told TYC clear as day they couldn't keep kids past their 19th birthday. Here's the verbatim language:

(e) Except as provided by Subsection [(f) or] (g), the commission shall discharge from its custody a person not already discharged on the person's 19th [21st] birthday.

The only exception, subsection g, says that:

The commission shall transfer a person who has been sentenced under a determinate sentence to ... [the] Texas Department of Criminal Justice on the person's 19th [21st] birthday, if the person has not already been discharged or transferred, to serve the remainder of the person's sentence on parole.

So how do they get to keep half the offenders in TYC? Where is the legal authority for that under the statute? Until yesterday, TYC's public stance was that they had no authority to keep these offenders any longer. Reported Ward, "By late August, Pope was telling a legislative committee that the agency had a plan to get all of the older offenders out of Youth Commission custody — and that most would go to into the adult system."

Since then, TYC says the Attorney General signed off on a new interpretation of the law, one that I don't think can be justified by the plain language of the statute. The agency now says SB 103 only applies to youth whose cases were adjudicated after the legislation took effect. But that's not what the law says. SB 103 changed criteria for release decisions for all youth, including those already incarcerated. Nothing in the language implies that it's possible to grandfather these cases.

Pope is relying for this view on a document that's not actually from the Texas Attorney General per se, but on TYC letterhead signed by TYC General Counsel Steve Foster and Assistant Attorney General Sharon Pruitt. Here's the document, which a reader forwarded to me last week. (It was actually written before Ms. Pope's last report to the Lege.) The key language - the part that I think intentionally misinterprets (or at least re-interprets) the law to get TYC out of a sticky problem, says:

The Texas Legislature, through SB 103 as passed and signed into law during the 80th Legislative session, made the decision to reduce for the future the maximum age of offenders from 21 to 19. Given the general prospective application of SB 103, TYC continues to have jurisdiction over its current population of 19 to 21-year old offenders: in other words, those offenders in this age group committed to TYC prior to the effective date of SB 103.

But SB 103 was never intended to be "prospective." If that were the case, many of the policies wouldn't apply to older cases when they were clearly intended to do so. For example, the new Office of Inspector General may investigate cases from before the office was created - there are no distinctions anywhere in the bill to say its provisions only apply to youth convicted in the future.

I wish someone would ask for an actual, formal AG opinion on this topic, or that some lawyer would challenge the decision in court on behalf of those still incarcerated - I simply don't think it's credible after all this time to say that's what the law means. No one has ever publicly suggested such an interpretation before now.

Having told the Lege straight up less than a month ago she would do the precise opposite of the new announced policy, Ms. Pope yesterday said lawmakers were all on board. That was news to House Corrections Committee Chairman Jerry Madden, though, reported Ward:

Pope said Tuesday that lawmakers had been briefed on the agency's new decision.

But House Corrections Committee Chairman Jerry Madden, an author of the law and co-chairman of a special legislative committee overseeing Youth Commission reforms, disputed that.

"I have not been briefed by anyone ... and I can tell you that our legislative intent was to get the 19- and 20-year-olds out of TYC facilities," Madden said. "I have no idea how they've come up with this. I continue to be surprised and amazed by some decisions out there."

The crux of the issue over 19-20 year olds with determinate sentences boils down to a family dispute, oddly enough: The new law says TYC "shall transfer" these offenders to adult parole. But TYC conservator Ed Owens' wife Rissie, who chairs the state Board of Pardons and Parole, refused to allow parole for most of these offenders. I don't believe that was within her legal power, but I also know that in a marriage it can be dangerous to challenge the Missus, so Owens and Pope decided to re-interpret the law rather than force the parole board chair to follow it.

Honestly, it's time for the Governor to step up and provide some adult supervision for TYC (and for that matter the parole board - he should insist the chair he appointed respect the law). With Ed Owens on his way out, perhaps the Governor should take this opportunity to reshuffle things at TYC and appoint new management to run the agency - preferably real juvenile justice experts, or at least somebody who could be trusted to follow the law.

RELATED:

• Hickman: TYC General Counsel could have prevented wrongful incarceration of TYC youth
• Rissie Owens drawn into TYC parole mess for 19-20 year olds

2006 Texas arrest statistics

Texas law enforcement made more than a million arrests in 2006 according to data reported to the Department of Justice Bureau of Justice Statistics.

Having examined "clearance rates" in new federal Uniform Crime Report data, I thought I'd take a closer look at Texas 2006 arrest data from the UCR. For starters, here's Texas' 2006 aggregate numbers for arrests broken down by juveniles and adults:



A couple of things immediately jump out at me. For starters, auto thefts appear to rarely result in an arrest, by these data. According to the National Insurance Crime Bureau, 145,575 vehicles were stolen in Texas during 2006, but the UCR data says only 7,459 arrests were made for this crime. While an individual auto thief or theft ring may be responsible for multiple stolen cars, this data indicates only one in twenty vehicles taken results in an arrest.

Though we hear a lot about the "war on drugs," the war on alcohol actually results in more arrests in Texas - more than 237,000 total in 2006 combined for drunkenness, DUI, or liquor law violations. (One guesses some of the "disorderly conduct" cases may also be alcohol related.) By comparison, just under 137,000 Texans were arrested for drug violations, the vast majority for simple possession.

Another statistic with a deep backstory behind it: 11,441 runaways were arrested in Texas in 2006. How many of those kids ran away from abusive situations, and what happens to them after they're arrested? I really don't know. In Dallas the Letot Center tries to provide some services for runaway girls, in particular, but this population often appears to slip through the cracks.

As for juvenile crime, youth accounted for 15.7% of all Texas arrests in 2006, with the highest totals coming for disorderly conduct, theft, drug crimes, and curfew violations. Youth alcohol arrests, by comparison, were lower. Just under 10,000 youth were charged with alcohol crimes in 2006, compared with 14,702 drug arrests of minors.

The UCR data imply that regulating alcohol reduces juveniles' access to booze compared to illegal drugs. Juveniles made up 11 percent of Texas drug arrests in 2006, but just 4% of alcohol-related arrests. My guess: that's because it's easier to buy pot than alcohol when you're underage.

These are just first impressions from a quick look at Texas' 2006 data, but this post merely scratches the surface of what can be gleaned from the UCR data, which is available here from the DOJ website.

"Clearance rates" for serious crime disturbingly low

The national "clearance rate" for serious crimes in 2006 - i.e., the percentage of reported crimes solved, by police according to the new Uniform Crime Report - seems awfully low to me:

• Nationwide in 2006, 44.3 percent of violent crimes and 15.8 percent of property crimes were cleared by arrest or exceptional means.
• Of the violent crimes (murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault), murder had the highest percentage of offenses cleared at 60.7 percent.
• Of the property crimes (burglary, larceny-theft, and motor vehicle theft), larceny-theft had the highest percentage of offenses cleared at 17.4 percent.
• Eighteen percent of arson offenses were cleared by arrest or exceptional means.

It's no wonder many in the public don't feel safe if 55% of violent crimes and 84% of property crimes go unsolved! If 82% of arson victims never see the offender held accountable, sure, I'd be unhappy, too. The 60.7% clearance rate for homicides is especially troubling - that means 39.3% of killers literally get away with murder!

Politicians routinely point to UCR crime statistics to argue for longer and more punitive criminal sentences. But to me these numbers imply a different solution: Greater resources and focus on solving crimes and catching criminals in the first place.

If the national clearance rate for burglary is only 12.6% (and in the single digits in some Texas cities), then punishing the few burglars who're caught more harshly makes only a small dent in crime. A better strategy would be to put more investigative resources into solving a great percentage of burglaries.

When punishment is uncertain or even unikely, the economic model of crime (where punishments are considered the "price" of criminal conduct) break down - there's a "free rider problem," to use the economists' jargon, because most offenders don't actually pay the "price," i.e, the legislatively established punishment. That's a big reason the death penalty provides little deterrent. The sentence is imposed on less than 2% of convicted murderers, but nearly 40% of the time a killer will never face punishment at all.

Writing in the Christian Science Monitor last year, New York corrections official Scott Christianson pointed out that 50 years ago, clearance rates for murder hovered around 90%. Indeed, one of the odd ironies in the last years has been that overall crime has declined, but clearance rates also declined over the same period. In other words, though fewer crimes are committed, police solve a smaller percentage of them. Christianson blamed the drug war for diverting police focus:

It's not that America's cops haven't been making arrests - in fact, their total annual arrests jumped from 3.3 million in the nation in 1960 to 14 million in 2004, a staggering number that helps to explain why the United States imprisons more of its citizens than any other country in the world.

So, if reported crime has been going down and arrests have gone up, what accounts for the plummeting arrest clearance rates for murder, robbery, rape, burglary, larceny, and motor vehicle theft?

Part of the answer must involve drug law enforcement - victimless offenses that aren't reported to the police or included as FBI Index Crimes. Instead of arresting suspects for burglaries and other serious reported crimes, cops today spend much of their energy going after illegal drugs. Their arrest rate for drug possession (especially marijuana) has shot up more than 500 times from what it was in 1965.

Bolstering that claim, the National Organization for Reform of Marijuana Laws crunched this year's UCR numbers to determine that more marijuana arrests were made in 2006 than any previous year, 829,625. Each of those arrests took officers off the street for about 2 hours, on average, to process offenders, mostly for minor possession cases. After they're arrested, they enter overstuffed local jails that already can't find room for more serious offenders.

This bizarre statistical phenomenon identified by Mr. Christianson - that crime is down even though police are solving fewer of them - explains in part why the public remains "downright paranoid" about crime. They read of police making more arrests than ever, jails stuffed full with crooks, and politicos touting "tuff on crime" solutions, but when crime happens to them or people they know it usually goes unsolved.

The Texas Legislature gave law enforcement an important new tool this year to help redirect police focus toward more serious crime - HB 2391 that allows (at the officer's discretion) citations instead of arrest for certain low-level misdemeanors including driving with a suspended license, small-spot possession. Some counties so far have refused to implement the new statute, but judging by these statistics, if they did it might help them devote more resources to these more serious offenses.

TYC's pepper spray policies give employees contradictory orders

I'm more convinced than ever that the Texas Youth Commission's new directive on using OC or "pepper" spray will soon be overturned.

Regular readers know TYC has been sued over Executive Director Dimitria Pope's August 2 directive moving OC spray or "pepper spray" up the use of force continuum, letting employees use it more often. But according to longstanding TYC policies created in the wake of the historic Morales v. Turman settlment in 1984, OC spray or "pepper spray" may be used only in these limited circumstances; to:

• quell a riot or major campus disruption;
• resolve a hostage situation;
• remove youth from behind a barricade;
• secure an object that is being used as a weapon and that is capable of causing serious bodily injury;
• protect oneself from imminent harm when manual restraint would be impracticable;
• protect youth, staff or others from imminent harm when manual restraint would be impracticable;
• prevent escape and fleeing apprehension when manual restraint would be impracticable.

Here's the problem: Ms. Pope's August 2 directive instructed "trained" staff "to use OC spray prior to agency-approved methods of physical restraint whenever practical" So how does that jibe with the GAP rule to only use OC spray "when manual restraint would be impracticable"? I don't believe it does.

Bottom line: Her directive contradicts the GAP policy, which was never formally changed. Pope's directive did not go through the regular agency rulemaking process and does not have the force of TYC's General Administrative Polices. Here are the circumstances under which TYC GAP policies allow using physical restraints:

• Protection of youth from imminent self-harm;
• Protection of self from imminent harm;
• Protection of other youth or third parties from imminent harm;
• Protection of property from imminent damage;
• Prevention of escape or fleeing apprehension;
• Movement of a youth referred to the security unit, isolation room or alternative classroom;
• Movement of a resistant youth within the security unit to minimize the disruption when the youth’s behavior is substantially disruptive and the youth refuses to follow a reasonable request to stop the behavior;
• Movement of a resistant youth from a dangerous or disruptive situation;
• To conduct a search of a resistant youth reasonably believed to be in possession of a weapon, an item that can be adapted for use as a weapon, a controlled substance, or other item(s) that breech the security of the facility;
• To conduct a search of a resistant youth entering the security unit;
• Administration of medical treatment to a resistant youth when, under the circumstances, failure to administer the treatment could have serious health implications as determined by a health care professional; or
• Collection of DNA samples from a resistant youth, as required by law.

That list of circumstances justifying physical restraint includes many instances where using OC spray would fall outside of GAP approved policy.

TYC employees cannot simultaneously follow the August 2 memo and the longstanding, still in place GAP policies. They simply contradict one another. That's why the lawsuit by Texas Appleseed and Advocacy Inc. is a slam dunk (see the original petition) - Ms. Pope can't change that rule with a mere administrative memo, she must publish proposed changes in the Texas Register and use the proper legal processes. The lawsuit calls her on overstepping her bounds.

Another aspect of the GAP policies appears to have been defenestrated by TYC administrators:

In TYC high restriction institutions, only the facility administrator, assistant superintendent, ADO, duty supervisor, director of security and security personnel whose regular assignment is outside the security unit are authorized to routinely carry OC spray on their person. (emphasis added)

According to this rule, TYC employees in the security units cannot routinely carry OC spray. But isn't that happening now? How else can OC spray be used prior to physical restraint? Perhaps some current TYC employees can let us know if OC spray use right now is restricted to those employees.

If true, it creates real danger for everyone if front-line staff have to wait for someone outside the unit to break up violence, since under the Aug. 2 memo, youth must be sprayed before they're physically restrained. OTOH, if staff in the units carry OC spray, then it violates the GAP policy.

That's a Catch-22 not resolved in the current rules. I'd love to know more about who's now carrying OC spray at the units on the ground.

Book 'em, Horns

Rice's band, the MOB, poked fun at the University of Texas' football team's legal troubles during halftime of Saturday's 58-14 blowout. Reported Bevo Beat, "the skit featured three orange-wearing scofflaws running around the field and being chased by police in cardboard cars while the rest of the band formed a block T."

The MOB announcer also congratulated Texas A&M for their recent decision to "no longer outsource Reveille's training to Michael Vick."

No money to fix jail, but Dallas Sheriff says she can afford new SWAT team

If Dallas County Sheriff Lupe Valdez can't afford to hire or train enough guards or provide adequate medical care at the jail, how does she have money to finance her own shiny new SWAT team? Trey Garrison summed up my thoughts on the matter at Front Burner:

Great. Just what Dallas County needs. Another SWAT team. And how will they fund it? Through the magic of asset forfeiture. Just swell. The Dallas County Sheriff's Department can't run a jail — heck, apparently, they can't figure out how to transfer a vehicle title over the course of four years — but they want deputies to gear up and play soldier. What could possibly go wrong?

Personally, I think she's just jealous and wants her own TV show. The Sheriff doesn't need her own SWAT team. There's too big a risk it'd be as poorly managed as the Dallas jail crisis (which she inherited, but has not fixed). Sheriff Valdez needs to focus on performing the job she's already got in front of her a little better before seeking out new, high-risk tasks to screw up.

Blogversation on high-speed police pursuits

Reacting to a story in the Houston Chronicle, Jason has this post on BlogHouston basically arguing against any restrictions on high-speed police pursuits. Catonya critiques Jason's assumptions here, comparing them to federal research on the topic of deadly police pursuits.

Jason, a Houston police officer who blogs at Cigars, Donuts and Coffee, opines that "I have never seen an instance where a pursuit was terminated that the criminal slowed down and obeyed the traffic laws. When the police stop chasing, the criminal will continue fleeing at high speeds."

That's interesting, isn't it? How could an officer claim to know what a suspect did once they were out of his sight? It turns out, Jason's assumptions about how offenders react when police stop chasing are mostly wrong. Catonya writes:

Dr. Geoffrey Alpert is an internationally acknowledged expert on police pursuits. Complete results of his research are published in the U.S. Justice Department Research in Brief. “Basically, we learned that most suspects will respond to police officers who terminate their active attempt to chase. The fleeing suspects will continue until they feel safe and then either attempt to blend into traffic or “ditch” the car and run on foot. Suspects feel safe in a relatively short period of time and distance.”

Catonya quotes DOJ calculating that, "On an annual basis, deaths resulting from high speed chase incidents exceed deaths related to police discharge of firearms." One-third of high-speed chase deaths are innocent bystanders, she points out, and many more victims are police officers themselves.

Check out the links for a good debate on this important subject.

MORE: Scott Greenfield at Simple Justice thinks many officers enjoy high-speed chases. He also believes there's a:

natural cop need to teach a lesson to people who "just don't listen." Since a taser won't do any good when the other guy is in a car, high speed pursuit is the only recourse. After all, if the perp gets away, the cop can't show him who's boss and that you don't mess with a cop.

Silly Season causes pols to embrace ridiculous "tuff" positions

For more than 12 years I made my living working in Texas elections, but these days I dread the electoral Silly Season, and with state primaries upon us in February, we're just now heading into it full-swing.

During the Silly Season we may expect the most asinine, foolish, and unrealistic criminal justice proposals imaginable bandied about before an ignorant public as though they actually had some relationship to the real world. I'll never forget the first campaign by Todd Staples, now Texas Ag Commissioner, who ran on a platform of imposing the death penalty for all drug dealers. (No, really.)

To me, Staples' absurd campaign position (which immediately vanished when he got into office - never even a bill filed on the topic) marks the all-time gold-standard for the ridiculous "tuff on crime" grandstanding we routinely see in Texas elections. So far, though, this year's front-runner has to be District Judge Tryon Lewis who's running in the GOP primary against Republican incumbent Buddy West out in west Texas. (Lewis was recruited against West after the incumbent sided against Tom Craddick in the Speaker's feud at the end of session.) Said Judge Lewis in today's Midland Reporter-Telegram ("Ailing and aging, West scraps for 8th two-year term," 9/23):

"Perpetrators can get probation for almost every first-degree felony and serious crime. There shouldn't be some right to commit one free felony."

Honestly, from a public policy perspective that's just dumb. Dumb as a creosote post. Texas has made more than 2,300 separate acts felonies. Graffiti can even be a first degree felony, which brings a 5-99 year sentence. Can he really be saying that under no circumstances should judges or juries have discretion to impose probation?

Even worse, I find it disingenuous bordering on irresponsible for a former judge to call probation a "free felony," since granting probation is entirely at the local judge's (or, rarely, a jury's) discretion. Probation requirements in Texas typically are quite strenuous, especially for the most serious offenses, and a felony conviction makes it difficult to get a job or housing for the rest of your life. Not only are many probationers revoked for failing to live up to supervision requirements, in many cases offenders PREFER incarceration to probation because probation requirements would make them change their lifestyle, while they can just wait out a jail stint.

I notice the Judge failed to call for higher taxes to pay for his idea, another disingenuous omission. Texas prisons are chock full, mostly with non-violent offenders, so eliminating probation for "serious crime," however that's defined, would increase the prison population significantly. It would also cause fewer defendants to accept plea bargains, boosting local costs for trials, pretrial detention, and other county expenses off the charts.

If a politician does not simultaneously explain to the public how he or she plans to solve Texas' prison and jail overcrowding crisis, it's straight-up hypocritical for them to run for office proposing harsher penalties for this or that crime.

There's one more philosophical disconnect I find annoying between such rhetoric and politicians who claim to be small-government conservatives. When speaking of criminal justice, Judge Lewis wants to take power away from local decision makers, but in the next sentence he espouses the opposite philosophy about schools: "Much too many [sic] of those decisions have been moved to Austin, but who knows what's right better than the teachers and principals who know their students?" he said.

My question in response: Who knows better than local judges and juries about the correct sentence for criminals in their community? Why does he support local control for schools and oppose it for the justice system?

I'll tell you why: It's the Silly Season.

Moscow turns to invited graffiti to liven up Soviet era buildings

Here are some folks who've taken the idea of "invited" graffiti to its logical extreme. Via Russia Today, with permission from government authorities, Moscow residents have turned to graffiti artists to liven up dull, Soviet-era buildings. Is that one of the coolest pieces of graff you've ever seen, or what?

As you drive around town the next few days, look around to identify spots with blank walls or other public spaces that might be put to better, more artistic use - ask yourself whether you'd rather see something like this there instead?

MSM on TYC

Here are several items from the mainstream media about the Texas Youth Commission that will interest many readers:

• Youth Commission still not seeing error of its ways, Austin Statesman editorial board.
• Politics, privacy law, and publicity combine to delay Youth Commission releases, Austin Statesman, Mike Ward
• Follow the Roadmap to Reform, Austin Statesman, David Springer (Blue Ribbon Panel member)

And if you didn't read these stories about TYC this week, make sure you've seen them; they're important:

• Employers hesitant to release applicants' background information, Dallas News, Diane Jennings
  
• Get tough guy among TYC advisers says: Get smart, too, Dallas News, Steve Blow
• Youth prisons need expert leaders, not TDCJ refugees, Dallas News, editorial board
• Teen beaten as guards stood by says TYC paying $30,000, Houston Chronicle, Lisa Sandberg

Uh ... Yuck! ... Cop becomes prostitutes' pusher, y mas?

Via Drug War Chronicle:

In Galveston, Texas, a Port of Galveston police officer was arrested September 12 for financing the drug habits of prostitutes and driving them to crack houses to score. Officer James Roland Chapman, 53, now faces three prostitution counts. He faces up to two years in jail and the loss of his peace officer's license if convicted.

I've heard before that many prostitutes and escort services stay in business mainly by acting as informants for the police. I wonder if these alleged ladies of the evening were Chapman's snitches before he allegedly became their pusher?

GAO: War on drugs not working, let's do more of the same

A new US Government Accountability Office report (pdf) adumbrates US drug interdiction efforts to combat Mexican drug cartels, and their account of drug enforcers' record over the last six years fails to inspire hope that expanding the same tactics will have much effect. Pete Guither has already deflated the GAOs absurdist recommendation that greater "cooperation" between the US and Mexico will solve the problem. But there's a lot of other important data here, despite the lame conclusion.

Several parts of this new report interest me, but let's kick off the discussion summarizing a few fact bites about the US-backed drug war in Mexico and Latin America that make the topic more concrete:

• The drug war is expensive. Between 2000-2006, the United States spent $7 billion in Latin America on drug interdiction, roughly $397 million of it in Mexico.

• Most illegal drugs make it to US consumers. Overall, drug seizures represent "a very small percentage of the estimated drug supply." E.g., GAO estimates that an average of 275 metric tons of cocaine entered the US annually between 2000-2006, while seizures averaged 36 tons per year over that period.

• Seizures don't keep up with supply increase. Between 2000-2006, total drug exports to the US increased 23%, but seizures "did not increase proportionately." In other words, if the drug war were really a war, we'd be losing worse than ever.

• Drug business extremely lucrative. GAO estimates total illicit drug proceeds to Mexico at between $8-23 billion per year. That's a wide range, and odds are the real number is closer to the high end (a footnote suggests that the "amount of proceeds returned to Mexico is likely greater than the reported estimates").

• Laredo the epicenter of Mexican exports. Though the 2,000 mile US-Mexico border has 43 legitimate crossing points, the bridge at Laredo handles about 40% of all Mexican exports. That's why Nuevo Laredo, across the river, has become a battleground between warring cartels (and secondarily, the police and the Army) to control this critical transportation route.

• Is there room for 25 million more people in US jails and prisons? "According to the 2005 National Survey, an estimated 97.5 million Americans aged 12 or older have tried marijuana at least once in their lifetimes, representing 40 percent of the U.S. population in that age group. The number of past year marijuana users in 2005 was approximately 25.4 million (10.4 percent of the population aged 12 or older) and the number of past month marijuana users was 14.6 million (6 percent)."

• Diplomacy failure ended aerial surveillance. Reports GAO, "An aerial surveillance program along the U.S.-Mexico border was suspended because the United States and Mexico could not reach agreement on certain personnel status issues. Without an air surveillance and interdiction program along the U.S.-Mexico border, cognizant U.S. law enforcement officials report indications of increased drug trafficking."

• 'Zetas' allied with corrupt Nuevo Laredo cops. While not mentioning that the core original members were all trained by US Special Forces at Fort Benning Georgia, GAO notes that, "The Gulf Cartel has also employed a criminal gang referred to as the Zetas, which is primarily composed of rogue former Mexican military commandos. The Zetas are known for their violent methods and intimidation and are thought to be working closely with corrupt law enforcement officials. In June 2005, in a possible demonstration of the cartel’s influence over local law enforcement authorities, Mexican Army patrols sent to stem drug related violence in Nuevo Laredo were openly attacked by local police units." However the report did mention that despite the Zetas SNAFU, the US military continues to train Mexican commandos. "During 2000-2006, [the Department of Defense] provided training for about 2,500 Mexican military personnel in the use of certain kinds of equipment, as well as training to enable them to coordinate with U.S. aircraft and vessels." (The report also failed to mention that the Zetas now are teaching the techniques learned from America's finest soldiers to a new generation of thugs and assassins.)
  

• Targeting "kingpins" didn't work. During the Vicente Fox administration, the US and Mexico targeted "kingpins" like Felix Arellano of the Tijuana cartel. Says GAO, "this strategy does not appear to have significantly reduced drug trafficking in Mexico, [although] it disrupted the cartels’ organizational structure. However, the disruption caused by the removal of some of the leadership presented opportunities for other drug traffickers to take advantage of the changing balance of power, and, in particular, to gain control of important transit corridors leading to the United States, such as Nuevo Laredo. Such struggles led to increased violence throughout Mexico, with drug related deaths estimated at over 2,000 in 2006."

• Current anti-drug strategy losing ground. GAO concludes that "the flow of illicit drugs through Mexico to the United States has not abated, and interdiction efforts in Mexico have seized relatively small quantities of the illicit drugs estimated to be transiting through or produced in Mexico. Moreover, drug related corruption persists throughout much of Mexico, and Mexican [drug trafficking organizations] have increasingly become a threat in Mexico, which has seen an increase in drug related violence, and expanded their presence throughout much of the United States."

Feel any safer yet?

RELATED MSM coverage:

• "Mexican drug cartels move north," Washington Post
• "Report criticizes efforts of drug czar," Fort Wayne Gazette
• "US, Mexico near deal on anti-drug aid package," Dallas News
  

Graffiti in Austin up 400% from 2002

A reader recently asked what percentage of graffiti comes from self-styled "artists" and how many were gangbangers. I didn't have an answer, and before now have never seen anyone offer even an educated guesstimate. But according to The Daily Texan ("Illegal graffiti on the rise, but can be artistic expression," Sept. 21):

Most cases do not reflect the gang-tagging community, but instead represent a growing art subculture within youth.

Gang-related graffiti accounts for 15 percent to 20 percent of the clean-ups, Casarez said, but the most common offenders are young adults influenced by a pop culture art phenomenon.

"If you go back in 2002, you can see this weird tagging subculture pop out along with the skater revolution," he said. "In five years, this art revolution has just developed not only at UT, but has grown nationwide into such a serious problem."

I didn't realize the universities had secured special enhancements for graffiti on school property. Said a UTPD Sgt, "Under the penal code, anyone who defaces university property is automatically charged with a first-degree felony and will be arrested." A first degree felony is 5-99 years. Yikes! Can that really be true? Rape, by comparison, is a second degree felony (2-20). I'll bet most students don't know about that high penalty any more than I did, so I bet it doesn't create that big of a deterrent - not nearly as much as the university's longstanding commitment to rapid cleanup.

I'd also never seen documentation that graffiti in Austin (and likely elsewhere) has enjoyed such a massive growth spurt, though I suppose I've seen the visual evidence. Citywide:

Every year, graffiti cases in the city increase by nearly 2,000. In 2002, there were 3,900 cases, with 15,750 in 2007, said Tony Casarez, the program coordinator for Austin Graffiti Abatement Program.

Graffiti removal cost the city more than $295,000 in 2007, according to the city's budget Web site.

That means reported graffiti crime has increased 400+% in Austin since 2002. That's quite a spike. See prior Grits graffiti coverage.