Lonely voice in the wilderness demands end to overcriminalization

I've cracked wise before at the notion that Texas has labeled 2,324 separate acts "felonies" in state law, including eleven involving oysters. Tack on perhaps 3-4,000 more misdemeanors and countless municipal ordinances and county regulations and we really are living in a bizarre period characterized by a phenomenon I've labeled "overcriminalization" - using the law enforcement machinery of the state to manage social problems like mental illness, addiction, business regulation, and a wide range of disputes that in generations past would have been considered civil matters.

The Nacogdoches Sentinel tells the quixotic story of a man who's completely fed up with this onerous trend ("A battle for personal liberty," Nov. 30):

A local business owner with no formal legal training, Craig has studied the law on his own for 15 years, preparing arguments for his case, a rebellion against tyranny and injustice that began earlier this month in municipal court.

At 44, Craig has no driver's license, but still drives a blue 1991 Ford Crown Victoria, which has no license plates, no registration, no insurance and a broken brake light. For these reasons, Nacogdoches police officers issued Craig ordinary citations in December 2007 and again in January of this year.

But Craig's case is anything but ordinary. Instead of paying his tickets — about $910 in fines for the first one — Craig filed a lengthy affidavit in municipal court denying that any crime had been committed and challenging the standing of the court to prosecute him. There, and in subsequent filings, all researched and authored on his own, Craig cited legal sources like the Magna Carta, the state constitutions of Texas and Arizona and countless subsections of state law and administrative code, all of which he believes supports his case.

Craig objects to nearly every facet of the justice system, from the lack of court reporters in the municipal court, to summonses delivered by mail instead of by hand, to judges whose salaries are paid by the city — an unconscionable conflict of interest, Craig says. But Craig's case really hinges on his worry that government has strayed too far from its original purpose, assuming powers it was never supposed to exact over citizens of a free republic.

"I am trying to be left alone," Craig said. "I want the right to travel from place to place without harassment. I want the right to use my property for its intended purpose without harassment. I want my right to not have to pay fees to anyone for the right to use my property. It's really that simple. We can't be a nation of free people if we're not really free."

The rest of the story is worth a read. I doubt Mr. Craig's claims will prevail, and his isn't a sophisticated critique, but I think it's a common one that represents a growing, justified resentment against "Big Government" - one that sometimes has been manipulated to gain votes by politicians who, once in power, never actually reduced government's scope.

Though Craig's legal point is disputable, he has a valid political one: A whopping 79% of respondents to a Dallas News online poll last spring thought petty municipal ordinances were turning Dallas into a "nanny state." Or take a look at the bills filed in the House and Senate at the Texas Legislature and you'll notice a striking trend: Many bills propose creating new crimes, new penalties, or increasing old penalties (the euphemism for which is "enhancement"), but search high and low and you'll seldom see anyone repealing useless, petty laws or ratcheting down penalties when increasing them didn't have the desired effect.

For now Craig's quixotic, pro se rebellion is just an oddity and I mention it not to back the legal merits so much as to remark upon its political and cultural implications. I suspect his complaints resonate with a significant number of people, even if most folks would never go to such extremes to lodge a protest.

Drug war a flop, say Mexican, US officials

Hard to say what effect such things have on public policy, though it's certainly evidence of the erosion of consensus among elites around the drug war, but from the Los Angeles Times, we see reference to a new analysis from well-credentialed sources telling us:

The United States' war on drugs has failed and will continue to do so as long as it emphasizes law enforcement and neglects the problem of consumption, a Washington think tank says in a report co-chaired by a former president of Mexico.

The former president, Ernesto Zedillo, in an interview, called for a major rethinking of U.S. policy, which he said has been "asymmetrical" in demanding that countries such as Mexico stanch the flow of drugs northward, without successful efforts to stop the flow of guns south. In addition to disrupting drug-smuggling routes, eradicating crops and prosecuting dealers, the U.S. must confront the public health issue that large-scale consumption poses, he said. ...

The report, which is the work of Brookings' Partnership for the Americas Commission, offers especially pointed criticism of the way the drug war has been waged.

Contrary to government claims, the use of heroin and cocaine in the U.S. has not declined significantly, the report says, and the use of methamphetamine is spreading. Falling street prices suggest that the supply of narcotics has not declined noticeably, and U.S. prevention and treatment programs are woefully underfunded, the study says.

"Current U.S. counter- narcotics policies are failing by most objective standards," the report says. "The only long-run solution to the problem of illegal narcotics is to reduce the demand for drugs in the major consuming countries, including the United States."

Relatedly, the outgoing US ambassador to Mexico had harsh words for the American drug war, reported the Dallas News (Nov. 27):

"As U.S. ambassador to Mexico, I've tried to be honest with both Americans and Mexicans alike, and the truth is, Mexico would not be the center of cartel activity or be experiencing this level of violence, were the United States not the largest consumer of illicit drugs and the main supplier of weapons to the cartels," Mr. Garza said during a recent speech in Texas. "The U.S. and Mexico must fight these criminal organizations together, or we will fail together."

See related coverage from the New York Times.

Report: Travis County among worst in state at updating crime data

An AP report published in the Statesman gives a little more detail on the study described in this Grits post that found major inadequacies in the statewide database maintained by the Department of Public Safety for criminal background checks:

Fort Worth-based Imperative Information Group, a company that does background investigations, looked at 562 cases for offenses that ranged from theft by check to capital murder. All were known to have ended with a conviction or "deferred adjudication," similar to probation.

Its study, conducted in October, found that the Department of Public Safety database did not have records on 36 percent of the 562 cases, the Fort Worth Star-Telegram reported. In three instances, the cases were not reported to the database even though the defendants were sentenced to death.

The public database includes only cases that have ended in a conviction or deferred adjudication. State licensing agencies, employers, churches and others rely on the database to screen prospective employees, customers and volunteers. The missing records stem from human error and lax reporting from law enforcement agencies, courts and district attorneys, the newspaper reported.

AP's reportage adds the news that Travis County had among the worst problems with data reporting statewide. Imperative found:

The Imperative report showed that about half the Travis cases it studied did not include information on how the case turned out. Recent DPS reports show that Travis has been doing worse than that.

For about a decade, the DPS has been telling the Legislature that some counties are not reporting their case outcomes.

According to the most recent DPS report, Travis County reported 40,931 adult arrests in 2005. By 2008, Travis had reported the outcome of 16 percent of those cases — matching its consistent rank among the worst in the state.

Mange said that in some instances a case may take years to resolve, and in those cases, the result would not be available. But in the majority of instances where the resolution is not reported, she said, "we just aren't notified about it" being finished. Mange said most of the problems come from computer systems that aren't compatible with the state's system.

"We are working with Travis County to resolve some of the issues," Mange said. "They have shown an interest in ... fixing the problem."

Michelle Brinkman, chief deputy of the Travis County district clerk's office, said the issue has been brought to the attention of District Clerk Amalia Rodriguez-Mendoza . She said Travis has been sending its results, and the county's technology staff is "working with the DPS staff to determine why this data is not yet fully available within their system."

Williamson Sheriff honored for mental health unit

One of the keys to diverting mentally ill offenders from jail into treatment on the front end is training law enforcement to handle mental health calls without making the problem worse and directing people to services on the front end instead of waiting for the court to order it later. At many agencies such specialized mental health units are called Crisis Intervention Teams, and I was pleased to see the Williamson County Sheriff won a national award for work by their CIT unit, the Austin Statesman reported ("Williamson County Sheriff wins national honor," Nov. 27):

For coordinating services with crisis intervention specialists aimed at helping mentally ill people, instead of just putting them in jail, Williamson County Sheriff James Wilson was selected Sheriff of the Year by the 2008 National Crisis Intervention Team Conference Committee at a gathering in Atlanta earlier this month .

"Frankly, I feel a little guilty about getting this award because the work we do is a united effort on the part of the Williamson County Mental Health Task Force and a lot of other folks," Wilson said. The award is sponsored by the National Alliance on Mental Illness.

Wilson's mental health unit, a group of deputies who deal with emotionally disturbed people, includes 10 officers and two clerical workers and is headed by Lt. Mike Sorenson.

Williamson County saved $2.3 million cumulatively from 2006 to 2008 because of the unit's work in sending 1,088 mentally ill individuals to programs to help them solve their problems instead of to jail, according to county statistics ...

"In almost every instance, we can resolve situations with little or no force," Wilson said. "We have been doing this for three years and have had only a few minor instances of using force — I'd estimate fewer than five such instances. This year, we will answer about 3,000 mental health calls."

RELATED:

• Locals everywhere struggle with mentally ill offenders
• Outpatient centers better solution for competency restoration
• Legislature should prioritize mental health spending that relieves local jails

Happy Thanksgiving: Go Longhorns, OK State!

I'm taking a couple of days away from the blog to spend with the family and root for Oklahoma State full-time between now and the Bedlam game Saturday. ;)

Since this blog is all about justice, I'm naturally highly outraged at the idea that the Oklahoma Sooners might jump past my beloved Longhorns to play in the Big 12 Championship game after the Horns whipped them 45-35 on a neutral site. And it's not just the outcome between Texas and OU, but the way the Longhorns won: They took every blow the heavyweight Sooner offense could deliver - the same hailstorm that rained down on Texas Tech last week - but weathered the maelstrom and came back to win in the fourth quarter based on superior stamina and character. For Texas, after that game, to watch two teams it has beaten (Missouri and Oklahoma) play for the Big 12 Championship and potentially the national title, would be a true injustice.

In addition, to seal the deal, it'd be nice to see Texas beat A&M tonight like a rented mule.

Use this as an open thread to discuss any criminal justice topics, this weekend's football games or whatever is on your mind. And Happy Turkey Day.

Justice system ill equipped to handle mental illness

In the San Angelo Standard Times, a mother tells the tragic story of her son's mental illness and ultimate suicide, including numerous run ins with the law along the way. Lisa Hatch and her husband were both law enforcement officers, but that didn't stop the hand of fate from dealing their family this terrible blow. Her moving column urges parents to seek help early and never give up trying to help their child. She also expresses gratitude for the numerous law enforcement agencies who dealt with her son over the years: "We feel like he was treated well by those in charge of him ... Andrew was a bright, lovable soul, but he could frustrate a saint."

Hatch urges readers, "Tell your elected officials, that now is not the time to cut funds to our limited mental health system." The justice system does an especially poor job handling these cases, but in the present environment where there aren't adequate mental health services for seriously troubled youth, too often that's where the responsibility falls.

Exonerees face difficult re-entry task

With the passage of the federal Second Chance Act and numerous state and local re-entry initiatives for felons, the problem of long-time prisoners needing help to successfully get back on their feet and become productive citizens when they get out has received more focus than any time in recent memory.

However, a cruel and ironic twist on the problem shows up regarding recent DNA exonerees in Texas and around the country: Since the cases against them were dismissed, they're not even entitled to the minimal level of re-entry assistance given to someone on parole leaving prison who actually committed a crime.

To help with exonerees' re-entry dilemma, the Hogg Foundation for Mental Health gave a grant to UT-Arlington's school of social work to provide counseling services and study what re-entry needs exonerees have in common. Although DNA exonerations often represent the end of a years-long legal battle, reports the Fort Worth Star Telegram ("UTA professors get grant to study exonerated men's adjustment to freedom," Nov. 26):

two professors at the University of Texas at Arlington say that is hardly the end of the story for the exonerated men themselves.

"Basically, for these guys, the story really starts when they walk out of the courthouse," said John Stickels, a professor of criminal justice and jurisprudence at UT-Arlington. "They can’t get a driver’s license or Social Security card. People won’t rent to them because they think they must have done something wrong. They can’t get medical treatment. It’s just starting over completely.

"What we hope to do is help prepare them for when they walk out that door," said Stickels, who with social work professor Jaimie Page is studying ways to ease the former inmates’ transition to the free world.

That research has received a significant boost. The Hogg Foundation for Mental Health in Austin announced Tuesday that the study project has been awarded an $80,990 grant.

"This grant will help [Page and Stickels] address an area of mental health that has long been overlooked," said Dr. Octavio Martinez Jr., executive director of the foundation. "Exonerees deserve and should receive the resources needed to re-establish their lives."

In the last decade, more than 30 prisoners in Texas and 200 nationally have been exonerated, most of them by using DNA testing to establish their innocence, said Jeff Blackburn, chief counsel of the Innocence Project of Texas, which has collaborated with the UT-Arlington project.

Kudos to the Hogg Foundation and Jaimie Page at UTA for being pro-active to address a problem that didn't really exist on the scale it does now before the rise of DNA testing.

Speaking of which, the Dallas News yesterday interviewed recent exoneree Patrick Waller to see how he's doing heading into his first, post-incarceration Turkey Day and ask him what he's thankful for - there's definitely a lot, as described in this hopeful piece. I'm glad to read that he's faring better than some of the other exonerees who've gotten out, particularly those who lack strong family support.

Embezzling charges at TDCJ parole

TDCJ has had a bad stretch of luck lately regarding alleged employee corruption, most recently not in the prison system but among parole staff, the SA Express News reported last week (11-20):

A former employee of the Texas Department of Criminal Justice was arrested in San Antonio this week on charges of embezzling more than $100,000 while she worked for the parole division.

A Travis County grand jury on Nov. 13 indicted Frances Jones Lawrence on a charge of theft by a public servant greater than $100,000 but less than $200,000.

John Moriarty, inspector general for the department, said Lawrence, 33, was an administrative staffer with access to credit cards and purchasing records.

“There were suspicious receipts we were made aware of, so we opened an investigation and discovered that there was basically embezzlement going on,” Moriarty said. Lawrence, who remained jailed Thursday on $20,000 bond, was arrested at her latest place of employment.

Counties that agree to judicial emergency plans must be prepared to give up court space

Jeff Rambin at Tyler Appeals writes:

I checked out the Interim Report of the Task Force to Ensure Judicial Readiness in Times of Emergency. Basically, it calls for counties to sign a Memorandum of Understanding (MOU) with the Supreme Court of Texas. If you sign up, you promise to provide facilities for nearby counties when they're out of commission. In return, you'll be paid rent, and you'll have the comfort of knowing that other signatory counties will house your courts if the need arises. But don't sign up unless you mean it. When the time comes, the decision won't rest in the hands of your county officials. Instead, a judicial authority will come knocking with the MOU in hand saying: "We're here!" ...

The plan sounds reasonable enough. But here in Smith County, the debate is over whether we have enough room for our own courts. If the judges, clerks and bailiffs from some other county came knocking, I don't know where we'd put them. I sure would like to know how many counties have signed up for this plan.

McLennan County private jail deal creates perverse incentives

After high interest rates had earlier caused delays, the McLennan County Commissioners Court this week approved issuing bonds to construct a new jail that will be operated by a private contractor, the Waco Tribune Herald reports ("McLennan County Commissioners Court approves bond sale for new jail," Nov. 26), but there's a hitch:

“This will work out as long as the jail is full or has adequate number of inmates in the jail, which is the case now and in the short term,” [County Treasurer Bill] Helton said. “My concern is 10 years down the line, if the jail population were to decrease and there are not enough inmates in the jail to produce revenue to cover the costs, what happens to the county’s bond rating and credit worthiness if they were to default on the payments?”

That's an excellent question and depending on unpredictable things like the economy, the Legislature, and even national immigration policy, it could become an issue sooner than ten years from now. The interest rate they're hoping for is nearly as high as the one on my house:

The legal paperwork formalizing the bonds will be submitted to the Texas Attorney General’s Office for approval, which may take up to two weeks, said Herbert Bristow, the county’s attorney. However, the bonds will not be sold on the market until bond interest rates fall to 6.98 percent or lower, the point at which the financial costs for the new jail remain favorable.

“The documents have been formally approved for the bond transactions, so we have everything in place to react timely to any changes of the fickle market,” Bristow said.

Is it ethical to build a jail with such steep financial incentives for the county to fill it up? Shouldn't decisions about who is incarcerated remain free from such venal pressures? Particularly when McLennan County has other options besides jail building?

If, as Mr. Helton fears, there comes a day when the county doesn't need so much jail space, McLennan County will find itself in the same situation as the Texas Youth Commission recently - paying a contractor for empty jail beds. And they're not the only ones making such a gamble.

The county treasurer is right to worry: McLennan taxpayers just bought a pig in a poke.

DPS crime database too shoddy for thorough background checks

Crime data maintained by the Texas Department of Public Safety is so shoddy that it's unreliable for performing background checks and gives the public a "false sense of security," according to an article in the Fort Worth Star-Telegram ("Texas DPS criminal databases missing thousands of records," Nov. 25):

More than a third of criminal records are missing from the online Department of Public Safety database available to the public, a Fort Worth company found in a study.

Even government agencies, which have access to more detailed criminal records to screen teachers, doctors, volunteers and tradespeople, use a DPS system fraught with gaps, officials and experts said.

Problems exist because of human error and because of spotty reporting from law enforcement agencies, courts and district attorneys that provide information.

Even records of Death Row inmates are missing from the public database, according to the study by Imperative Information Group, a Fort Worth background investigation company. The company studied 562 felony and misdemeanor cases.

"We know that the data is not very reliable," said Mike Coffey, president of Imperative. "There’s a false sense of security that this criminal background check is going to be effective."

Equally disturbing for purposes of background checks, often counties will enter data when charges are initially filed, but nobody goes back to remove the allegations when charges are disproven or dismissed. So some people are missing from the database while others are falsely labeled felons and really shouldn't be in there.

See prior, related Grits posts:

• Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
• Failure to update state crime database affects employment options for the unconvicted
• Improper access to Texas criminal records common, unchecked
• Sex offender registry full of errors

Hot button SCOTUS cases subject of HLR analyses

In case you're short on holiday reading over the Thanksgiving weekend, via Doc Berman the just-published Harvard Law Review has several analyses of recent US Supreme Court cases from the last term, including notable topics we've discussed here on Grits:

• Eighth Amendment — Death Penalty — Lethal Injection Drug Protocol: Baze v. Rees
• Eighth Amendment — Death Penalty — Punishment for Child Rape: Kennedy v. Louisiana
• Sixth Amendment — Attachment of Right to Counsel: Rothgery v. Gillespie County
• Sixth Amendment — Competency Standard for Self-Representation at Trial: Indiana v. Edwards
• Jury Selection — Batson Challenges: Snyder v. Louisiana
• Status of International Law — Self-Execution of Treaties: Medellín v. Texas
• Money Laundering — Rule of Lenity: United States v. Santos

Several of the main articles deal with the recent Heller case interpreting the Second Amendment and the right to bear arms. I've only read the ones on Rothgery and Money Laundering so far, but both were quite thorough (and not too painful to read for law review fodder).

Just as an example of something that jumped out at me, we've discussed how the Rothgery ruling impacts Texas, but HLR informs us how the ruling will affect the handful of other states that didn't already provide counsel after a bail hearing. There were:

seven states that, prior to Rothgery, did not reliably recognize the attachment of the right to counsel before, at, or just after an initial appearance: Kansas, Oklahoma, Virginia, Alabama, South Carolina, Texas, and Colorado. In the first five states, which had exceptions, delays, or deviations from this rule, Rothgery will bring consistency. In Texas, Rothgery will protect a subset of defendants — those charged and released on bail — who currently do not have their right to counsel activated when the prosecutor is unaware of their charges. In Colorado, Rothgery will significantly alter the current practice: misdemeanor defendants’ right to counsel will no longer be conditioned on the defendant first speaking directly with the prosecutor to discuss a potential plea.

For anyone with a particular interest in any of these cutting edge topics, these analyses are worth a read.

Sheriffs privatizing border web cams

Gov. Perry's first stab at his much-ballyhooed border webcams didn't pan out so well, but he and the Texas Border Sheriff's Coalition are back for another try, this time with a private sector partner who's attempting to profit from the venture by selling advertising.

The Sheriffs Coalition, spending grant money given them by the Governor, "paid $625,000 for one year of service, parts and materials and agreed to pay other fees for future services," according to the El Paso Times. (Grits readers may recall that one of the 16 members of the Border Sheriffs Coalition was recently arrested for allegedly working in cahoots with the Mexican-based Gulf Cartel.)

But don't expect loads of new arrests to result from the webcams, if history is any guide. Again from the El Paso Times ("Border watch program called waste of money," Nov. 25):

Perry launched a test-run of the border watch site with about a dozen cameras streaming video in November 2006. It got millions of hits and generated more than 14,800 e-mails. But an El Paso Times analysis of reports obtained through the open records requests revealed that all that Web traffic resulted in 10 immigrant apprehensions, one drug bust and the interruption of one smuggling route. ...

John Honovich, founder of IP Video Market Info, said studies of surveillance programs have shown they usually deter crime only temporarily.

"Unless criminals observe and determine that the system is effective, the deterrence effect goes away," Honovich said.

Another example of border policy driven more by PR than public safety. If investigators had to react to 14,00 emails during the pilot program but it only generated 10 immigrant apprehensions, that's a ridiculously low amount of bang for the buck.

This is an utterly pointless exercise, but I'm sure it will be ably spun in the Governor's campaign materials come 2010.

RELATED: A reader points me to today's story by the El Paso Times' Brandi Grissom, who picks up on the fact that in at least two instances, millions from the Governor's border security grants to Sheriffs were spent by people later indicted as drug cartel operatives. She writes that:

Starr County Sheriff Reymundo Guerra and Hidalgo County sheriff's Deputy Emmanuel Sanchez last month became the latest in a long history of border law enforcement officers accused of aiding and abetting the criminals they are supposed to fight.

Those two departments were among the many that have received money from Perry to participate in state-led border security efforts that began in 2005. Records the El Paso Times obtained under the Texas Freedom of Information Act the two counties received more than $4.8 million in state and federal grants from Perry from 2005 to 2008.

Critics of the operations say there are too few accountability measures attached to the border crime funds and worry that corrupt officers could use taxpayer money to help drug traffickers.

"We may as well just send it directly to drug dealers," said state Rep. Jessica Farrar, D-Houston, long a critic of Perry's border operations. "We've been spending money against our own interests."

CCA Follies: 'They who have put out the people’s eyes, reproach them of their blindness'

While I've been focused elsewhere, the notorious Charles Hood case - in which the judge and prosecutor admitted 18 years after the fact they were carrying on an affair prior to and during the defendants' capital murder trial - has taken a new, odd twist, with the Court of Criminal Appeals seemingly searching for any possible excuse not to delve too deeply into the extramarital indiscretions of their former colleague, Verla Sue Hollland. This effective AP account from Nov. 19 gives the latest details:

Texas' highest criminal appeals court on Wednesday ordered a lower court to examine why a death row inmate's attorneys waited nearly 20 years before claiming a sexual affair between the trial judge and prosecutor tainted the case.

Charles Dean Hood's appeal will be considered by the Texas Court of Criminal Appeals after the trial court hearing on the admitted affair.

Allegations of the affair, an apparent open secret 20 years ago in Collin County legal circles, gained traction in June in the days before Hood was scheduled to die when a former assistant district attorney filed an affidavit saying it was "common knowledge" from at least 1987 until about 1993. The time frame includes Hood's trial.

Appeals stretched late into the night June 17 when Hood, a convicted killer, was to receive lethal injection and the Texas Department of Criminal Justice ran out of time to meet a midnight deadline to carry out the punishment. When the execution was reset for early September, the Austin-based appeals court stopped the punishment again, a day before the scheduled Sept. 10 execution, because of what it said were questions about jury instructions.

On Wednesday, the appeals court said the "discovery of new facts" in the suburban Dallas case could send the entire case back to the trial court for a review.

But it said before it made that determination, Hood's lawyers should be asked why they waited 18 years the trial to get proof of the affair between now retired Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell. They also should be asked why they didn't seek depositions or investigate the claims even though a 1999 rule on the Texas law books allowed them to do so, the court ruled.

"What they're saying is if there was foot dragging, we shouldn't even have to consider this," Lawrence Fox, the former chairman of the American Bar Association's ethics and professional responsibility committee, said Wednesday. "Goodness gracious! The irony here is there were affirmative obligations on the part of this district attorney and the judge to disclose this.

"Each of them had absolute, in my view, ethical obligations to disclose their romance and they knew they had absolute ethical obligations to disclose their romance — which is why they kept it hidden. ... So now the court is saying: One of our judges screwed up badly, never disclosed this, so let's blame the victim."

The appeals court gave the trial court 60 days to collect evidence and make a recommendation on whether a legal rule known as the doctrine of laches meant Hood's lawyers surrendered the right to bring up the issue by not bringing it up sooner.

"What were they supposed to do?" an incredulous Fox said. "Go into court and say we've heard a rumor?

"You just don't do that. If you're going to go after a judge, you better have more than that or you're going to have your head handed to you. ... You can't punish the victim for not uncovering what somebody was hiding."

In court-ordered depositions in September, Holland and O'Connell acknowledged the affair.

I understand the frustration people express, frequently in expletive-ridden blog comments, over last minute appeals by death row inmates. But this is an exceptional case involving a secret romance between the Judge and the DA that they intentionally concealed from the defendant and his counsel, not to mention the voters who elected both these officers of the court.

Indeed, Judge Verla Sue Holland was later appointed to the Texas Court of Criminal Appeals, where she served with 8 of the 9 sitting high court judges. So it really looks shabby and untoward for her former colleagues at the CCA to continue to hunt around for excuses why they needn't examine the details of their friend's misconduct. That ship has sailed! The scandal has been admitted.

The CCA's handling of this case has been arrogant and self serving from day one. Last spring they refused to listen to Hood's complaints about the affair because it was only rumor and ordered him to the death chamber, where his execution was prevented solely by happenstance, not by any action of the court. Now they have the chutzpah to chastise the defendant for not bringing up unproven rumors earlier! Such hubris recalls one of my favorite lines from John Milton's Paradise Lost, in which the poet wrote that "they who have put out the people’s eyes, reproach them of their blindness."

The judge and DA had "absolute ethical obligations" to disclose the affair, according to the head of the American Bar Association professional responsibility committee. Unless a majority on the CCA believes otherwise (which would only barely surprise me), any tardiness by the defendant in raising this issue pales in comparison to the failure by state actors to disclose their secret, extremist misconduct long before now.

Which reminds me: Why haven't these two been disbarred yet? What do you have to do to lose your law license in this state?

Stingy Bush pardons more often favor Texans

President Bush issued 14 pardons yesterday, including for three Texans, and commuted two more sentences on drug convictions. That makes him the stingiest among modern Presidents regarding clemency. At 171 total, he's pardoned less than half the number of people as Bill Clinton during his two terms, with a disproportionate number of those coming from Texas.

The Houston Chronicle profiled one of the Texans' pardoned: Daniel Pue, convicted of a felony for illegal dumping of sludge in a ditch in East Texas. The pardon of Fort Worth's Brenda Jean Dolenz-Helmer was for a relatively minor offense- covering up for her father when he was accused of a crime.

The third case may wind up having some Bush family conntections: William Hoyle McCright, Jr., was convicted of bank fraud when he served as executive vice president of the First National Bank of Midland from 1978-1982. (Looking for connections via a quick Google search I found that one of McCright's trial attorneys William Monroe Kerr was President of the Midland Rotarians when then-oil-executive George W. Bush came from Houston to speak to the group in 1969; his other attorney, Ted Kerr, also attended that event.) McCright's crime was failing to disclose his involvement with an oil business for which he approved millions in bank loans, but the octogenarian insisted to the Midland Reporter Telegram after the pardon was announced, "I didn't do anything." Not exactly an example of contrition, huh?

The only well known name among yesterday's clemency announcements, oddly, was hip hop artist John Forte, a Californian who was convicted in Texas on federal drug trafficking charges but has always maintained his innocence - his was one of the two commutations. A rapper? Were there no country and western singers in need of official forgiveness?

Bush could and probably will pardon more people before he leaves offices. See Pardon Power's Watch List of pending clemency petitions, and additional blog coverage of the latest Bush pardons and commutations at Pardon Power, TalkLeft, the Lone Star Times, Capitol Annex, and The Volokh Conspiracy.

Can TYC make juveniles register as sex offenders?

From the Dallas News Crime Blog:

The Tarrant County District Attorney's office is asking the state Attorney General whether the Texas Youth Commission can make juveniles register as sex offenders.

The DA's question to the AG: "Does TYC have the authority under § 87.85(g)(3) of the Texas Administrative Code to require an offender to register as a sex offender, notwithstanding that provision conflicts with the juvenile court's authority under article 62.352(b)(1) and (c) of the Texas Code of Criminal Procedure, and the juvenile court has opted to exercise its authority to defer a decision on registration?"

See a copy of the letter from DA Tim Curry's office to the attorney general: tarrantcountyAG.pdf

From the DA's letter, here's the exact issue at question:

Specifically, your opinion is sought on whether section 87.85(g)(3) of the Texas Administrative Code, which authorizes TYC to require the registration of juvenile offenders who are discharged from TYC without successfully completing treatment, is in conflict with article 62.352(c) of the Texas Code of Criminal Procedure, which grants the juvenile court continuing jurisdiction on this issue. (Ed. note: links added)

Interesting question. It seems like, from this non-attorney's perspective, that when the administrative code and an actual statute conflict, the greater weight is usually given to what the Legislature penned as opposed to agency-generated rules. But it's hard to predict how AG Greg Abbott will decide because there's no telling these days whether the opinion will be a political statement or a legal interpretation - we've seen his office issue both in recent times in the guise of AG opinions, and lately anything related to sex offenders inevitably takes on a highly politicized air.

Making the matter more difficult, the TAC language in question specifically declares, "If the duty to register has been deferred and the youth is discharged from TYC without successfully completing treatment for sex offense, the PSW shall register the youth." However the Sunset evaluation report on TYC (pdf) criticized the agency for failing to provide sex offender treatment to all youth for whom courts had ordered it. Page 16 of the Sunset report (p. 23 of the pdf) declares:

of the 284 youth TYC identifi ed as in need of sexual behavior treatment programming in fiscal year 2007, only 46 percent were enrolled in such a program. Furthermore, only 50 percent of the youth enrolled that year completed the program.

What's more, in FY 2008 the agency only used 61% of its specialized treatment budget, say Sunset staff (p. 16). In other words there was money available to pay for treating more kids, TYC just couldn't get its act together.

Given that, here's my question: If youth fail to complete required sex offender treatment because the agency is not fulfilling its own responsibilities, should youth be placed on the sex offender registration rolls over the objection of the judge in the case? That seems to be the crux of the dispute, and to the extent that's what's happening, youth are being punished because TYC's not doing its job.

I'm curious to learn more about exactly how and when TYC adds youth to the sex offender rolls and how frequently that happens over a local judge's objections.

New Homeland Security chief must reduce waiting lists for legal immigration

With an incoming President who's the son of an immigrant, it's hard not to wonder what the new administration will do on immigration reform, not to mention when Congress might take up the matter.

As we watch the transition team for President-elect Barack Obama forming, the most telling immigration-related appointment so far has been that of Arizona Governor Janet Napolitano, who will likely head the Department of Homeland Security - a thankless task that includes authority over US immigration enforcement. So let's take a quick look at Napolitano's policies and statements as Governor on immigration reform. Reports the LA Times:

As governor of Arizona, Janet Napolitano last year signed into law the nation's harshest penalty for employers who knowingly hire illegal immigrants, a measure that would take away their business licenses for a second violation.

She called it the "business death penalty" and the "most aggressive action in the country" to stem the flow of illegal workers. She also criticized Congress and the federal government for failing to act on immigration overhaul. "The states will take the lead, and Arizona will take the lead among the states," she said. ...

But Napolitano also has shown an instinct for finding her way through the immigration minefield in a state where political battle lines were well drawn. She took a centrist position, supporting strong steps to prevent new illegal immigrants from coming to Arizona, while opposing most measures that would punish illegal immigrants who were already living and working there.

Said the Arizona Star:

The governor is neither an immigration hawk, nor an open-border advocate, Kavanagh said, pointing out that she wanted National Guard troops at the border but also vetoed an expansion of the list of government benefits denied to immigrants. "Her sympathy for illegal aliens reduces her enthusiasm for border security," Kavanagh said.

The Arizona Republic reminds us that "She ... opposed the government's Real ID mandate for biometric ID cards because it shifted billions of dollars of costs onto states like Arizona." So a former opponent and critic of REAL ID is now responsible for implementing its provisions (or else convincing Congress to repeal it).

A few initial thoughts: First, former US Attorneys like Napolitano and likely Attorney General Eric Holder are getting a lot of primo slots so far. Obama's own US Attorney appointments merit watching if that's such a political gateway for this Administration.

Second, as a critic of the border wall and Real ID, I'd love to see Napolitano lead the charge to repeal both those bad initiatives. In Arizona where there's a land border, perhaps the calculus is different. But Texas already has a moat! If that can't be adequately policed, a wall won't provide any greater barrier.

Any money saved by eliminating the do-nothing border wall, though, should NOT be sunk into putting National Guard troops on the border, as Napolitano advocated as Governor. Instead, such savings should be invested in expanding DHS' immigration processing bureaucracy to eliminate backlogs for legal immigration, and ultimately to expand legal immigration through what I hope will be comprehensive immigration reform passed sometime in the next 2-3 years.

These backlogs are entirely a function of the federal government failing to adequately staff DHS and they have real-world human consequences that can be devastating for those involved. Did you happen to watch the story on 60 Minutes last night about DHS evicting widows from the country because their husbands died while they were on the approval waiting list? One woman's husband died serving the US military in Iraq, but immigration officials won't allow his widow and their child (an American citizen) to stay in the country together. That's both insufferable and unnecessary.

For my money, the best thing a new DHS chief could do on the immigration front would be to loosen the spigot to allow more legal immigration, processing cases much faster to avoid putting people in a bad personal situation because their paperwork has not been completed. In other words, DHS needs to do the (many) jobs it's already assigned much better before launching on quixotic quests like a border wall. Some such initiatives will require Congressional action, but DHS could do a lot of its own accord by exercising discretion regarding current rules (as in the case of the evicted widows) and beefing up staff to process cases.

Grits' main focus regarding immigration stems from the use of public safety resources and tactics to solve what's essentially an economic and social problem - particularly the rise of immigration detention as the fastest growing group of incarcerated people in America, outpacing even the drug war as a source of new prisoners. The only difference (and it's not a big one when you're in jail) is that, in most instances, immigrants are incarcerated for civil violations, not criminality in the same sense as the guy who burglarizes your house. In fact, by any measure, immigrants commit fewer crimes than their US citizen counterparts.

It's hard to know what will happen on immigration during an Obama Administration or when they might decide to wrestle with that particular tar baby. But I like that someone who was a staunch critic of DHS will now run the place because the agency needs a housecleaning. Napolitano gets a chance to put up or shut up, while the agency gets a chance - after the first transition of Presidential power in its short existence - to re-focus on its core priorities.

One minor silver lining of the slumping economy might be that it buys a little time for Congress and the new administration to act. So many immigrants worked in the construction trades and service industries that the economic collapse has already done more to reduce illegal immigration than any government policy. Perhaps that economic reality, combined with expanded Democratic majorities in Congress (and even aided, one imagines, by John McCain's return to the Senate), will create a window for Ms. Napolitano in which she and the new President can defuse some of the pointless culture war battles that normally surround this issue, focusing instead on a pragmatic, solutions oriented debate centered on economics and security.

Sunset: TYC, county probation, don't gather, share enough information

Ed. note: This is the latest installment in a series analyzing highlights from the Texas Youth Commission/Juvenile Probation Comission "Sunset" staff report released earlier this month.

Whether or not the Legislature agrees to merge the Texas Youth Commission and the Juvenile Probation Commission as proposed in the Sunset Advisory Commission staff report (pdf), Sunset staff raise a number of significant concerns that need to get resolved one way or another, regardless of what bureaucratic structure governs the activity.

In particular, Sunset staff says a lack of information sharing in both directions between county probation departments and TYC hinders both offenders' smooth re-entry and the application of appropriate treatment while they're incarcerated. From p. 10 of the report (p. 17 of the pdf):

Critical gaps occur when counties commit youth to TYC and when youth are released from TYC to communities. These gaps can lead to a variety of problems. Starting with commitment, since the great majority of children in TYC have been on probation in the past, the committing court typically has information regarding the youth that TYC could use, including social and educational history; family and community situations; and past interventions and their outcomes.

In 2007, Senate Bill 103 increased the requirements on committing courts to provide additional information to TYC, including psychological reports, social histories, progress reports, and assessment documents. According to TYC, some counties provide this information while others do not. Even when provided, the quality of information varies greatly.

Following commitment, TYC does not typically provide courts with information on youth returning home, limiting counties’ ability to deliver appropriate services. TYC notifies the local court about the release of a youth to parole; however, in most cases, the agency’s notifi cation does not include information about the youth’s progress in treatment at TYC, health issues developed while at TYC, or other important information for the youth’s transition back to the community. By statute, TYC makes the notification ten days before releasing a youth to parole.

Because probation departments and committing courts do not receive information about the services youth receive at TYC, they cannot easily hold TYC accountable for treatment of youth. Local judges send youth to TYC with the expectation that the agency will provide necessary treatment. Committing courts do not have easy access to treatment records and do not receive reports on youths’ progress, limiting local jurisdictions’ ability to evaluate the effectiveness of the component of the system that they rely on to deal with their most serious offenders.

I've long believed that, whether or not the state agencies are merged, state juvenile parole functions should be handed over to county probation departments. (There's already a model for this: In many smaller counties, probation departments already provide contract parole services for TYC.) After all, these local agencies already have long histories with most of TYC's youth before they're ever sent to an institution, so it makes a lot of sense to designate county juvenile probation departments as the agencies who are also responsible for supervising juveniles on parole as well. What's needed is to ensure that the folks supervising youth on the front lines, both POs and the courts, have access to information about what happened with the kid at TYC and vice versa. That's apparently not happening now.

Not only is information not routinely shared, in many cases critical information is never systematically gathered in the first place. Ideally, says the Sunset report, youth would be given both needs and risk assessments when they're first put on probation, again when they're sent to TYC, then again at the end of their incarceration stint before they're released on parole. This information gathering should be coordinated and shared among the various government agencies who deal with the youth. Instead, said the Sunset staff:

Most [county] probation departments and TYC do not routinely assess youths’ needs or risk of recidivism, and do not share assessment information. This may lead to inappropriate treatment and placement decisions, as well as ineffective use of financial and other resources. ...

Both TYC and TJPC are developing assessment tools, but the agencies have not consulted with each other and assessment tools are not currently operational. TJPC is developing an assessment instrument for use by probation departments. The agency hopes to begin testing the assessment in spring 2009. The Texas Youth Commission’s current assessment tools are not validated and may not assess risk in line with national best practices. Also, the agency is not confident that its needs assessment can accurately assess the need for specialized treatment programs. TYC is redesigning its intake procedures to use a computerized risk-assessment system, but the agency is implementing this software independently of TJPC and county probation departments. The automated risk and needs assessment tool is expected to be fully functional by March 2009 but will need to be validated on a Texas population.

That all certainly sounds like a mess, and it's troubling that TYC's inmate assessment and classification hasn't progressed any further than it has. Last I heard, the agency had to start nearly from scratch after the work by a politically connected contractor wasn't up to snuff, and I'm not surprised that they're not "confident" in the product they currently have. It might well be smarter, as Sunset's merger suggestion implies, to ditch the assessment system in which TYC is "not confident" and more thoroughly integrate their work with TJPC's assessment tools and information systems - after all, they're both supervising an overlapping population of kids. The devil, though, obviously, is in the details.

This is all important stuff to think about, and for the Lege or the agencies act on, whether or not the two entities are formally merged.

Related Grits coverage:

• Would juvie probation be de-prioritized if merged with TYC?
  
• Will TYC-TJPC merger improve juvie corrections
• Pondering the economics of TYC abolition

Has TDCJ learned the right lessons from death row cell phone scandal?

An article by Mike Ward in the Austin Statesman today ("Cell phones hard to find on death row," Nov. 23) makes me fear Texas prison administrators haven't learned the right lessons from the recent rash of contraband discoveries (particularly cell phones) on death row:

"A year ago, we were amazed to find an inmate with both a cell phone and a charger up there," John Moriarty, the state prison system's inspector general, said Thursday. "They have 24/7 to think of ways to hide cell phones so we can't find them. This is our biggest, most complex challenge right now: tracking these phones down." ...

In all, a total of 18 smuggled cell phones were found on death row in just 30 days — five since a massive lockdown and shakedown of all prisons was completed last week.

I'm surprised to see the inspector general say this wasn't a big problem a year ago when TDCJ discovered 484 cell phones during FY 2007 - fewer than this year (743 through Oct. 20), but still a sizable number.

TDCJ administrators quoted in Ward's article focused mostly on how easy it is for inmates to hide items, and indeed, inmates are notoriously clever at concealing contraband. But that observation ignores a much more important fact when we're talking about death row: Only prison staff can bring contraband there in the first place, no matter how ably prisoners hide it. Death rown inmates never have face to face contact visits and could only, possibly receive contraband from staff. "People are asking, 'How could they miss those all those phones when they did a search?' Moriarty said," but that ignores the bigger question staring the inspector general in the face: How did the phones get on death row in the first place?

Regular readers know TDCJ's system-wide lockdown began when death row inmate Richard Tabler called Sen. John Whitmire's office, setting off a firestorm of media criticism and searches at every TDCJ facility. Cell phones were discovered at 22 units (out of around 112), and 46 officers were caught bringing cell phones into various units when pat downs were implemented, the Inspector General testified recently to the Senate Criminal Justice Committee (which Whitmire chairs). But so far, only Tabler and two of his family members are facing charges despite so many staff directly implicated in smuggling in the contraband, Ward reports.

Two questions loom as the agency moves forward: Will we see prosecutions of staff who smuggle cell phones in addition to inmates and family members paying for their minutes? Relatedly, will TDCJ take steps to reduce staff corruption besides a proposed 20% pay hike for staff, and what will such efforts look like?

Graft alleged in Bexar bond referrals

John MacCormack at the San Antonio Express News has a superb article ("Bail bond king spreads his favors," Nov. 23) describing the recent rise of a local bail bondsman. The story opens thusly:

As a new operator in the rough-and-tumble Bexar County bail bond business, Albert Saenz quickly climbed to the top after opening his first modest office in 2003 on South Pan Am Expressway.

With a bond writing capability in Bexar County now of more than $32 million — almost twice that of its nearest competitor — his company, AA Best Bail Bonds, is the biggest in town. Saenz also operates nine regional offices spread from Del Rio to Karnes City.

Heavy advertising, aggressive price-cutting and a gambler's taste for risk all helped Saenz thrive in what one regulator called a “cutthroat, backstabbing” business.

He also has enjoyed less obvious advantages, according to many of his former employees.

In interviews with the San Antonio Express-News, a half-dozen of his ex-employees said Saenz gets critical breaks from a range of public officials in exchange for favors including free tickets, out-of-town trips and cash.

“The reason he got so big was because of his friends in the courthouse and jail,” said Alfred Flores, a manager who left at the end of 2006.

“While I was there, he used Spurs tickets, concert tickets, Dallas Cowboys tickets. He has season tickets to everything. Once he took three deputies to the Dallas Cowboys game when they were playing the Eagles,” he said.

“He was rewarding them. They send him bonds,” Flores said.

The lengthy article largely backs up those claims, quoting former employees who claimed to have given tickets or other goodies to courthouse employees, jail administrators, someone in the Bexar DA's office, and even a local (unnamed) judge who allegedly gave out pre-signed "fugitive from justice bonds" to Saenz in exchange for a straight-up cash bribe. It's easy to dismiss that kind of allegation, except the former employee had in their possession one of the blank forms with the judge's signature on it. Oops! The judge declined to be interviewed and the paper didn't publish the jurist's name, so there's definitely more to be told about this story, though the Express-News has gotten off to an excellent start. The whole piece is well worth a read; Mr. MacCormack appears to have done his homework.

This all-too familiar Bexar County saga reminds me of a short essay I saw recently from the Pretrial Justice Institute on "Why Bail Reform Matters," which reminds us of the reasons why "The American Bar Association, the National Association of Pretrial Services Agencies and the National District Attorneys Association have all called for the elimination of commercial bail bonding."

DPS forays into immigration enforcement sacrifice public safety

I'm a little late to the game in mentioning it (despite prodding from a couple of readers), but the Department of Public Safety retracted its request to the Texas Attorney General (discussed on Grits here) for permission to launch a program of roadblocks without legislative approval to check drivers' licenses and liability insurance. Kudos to Rep. Ruth McLendon and Sen. Juan "Chuy" Hinojosa for holding the agency's feet to the fire and pressuring them to withdraw the request.

Meanwhile, even though the Texas Legislature declined in 2007 to authorize changes to comply with the federal REAL ID program, DPS is plowing ahead with REAL-ID spawned plans to issue special drivers licenses for immigrants (with a vertical instead of horizontal format). This is especially silly because, even though the new policy is clearly pandering to nativist, anti-immigration sentiments, under current law it actually only affects legal immigrants, since no one else can get a Texas drivers license.

So what's the point of the change? Pure media grandstanding. If any reader can name a single safety benefit to this new policy, please let me know in the comments. As far as I can tell, it's literally just for for show, but otherwise an utterly pointless exercise - I can't identify a single public safety benefit one could even argue might be accrued.

I've maintained for years that DPS' and Homeland Security have this one ass-backwards, they've misidentified the most significant public safety interests and instead are pandering to xenophobia. Drivers licenses are the wrong tool for enforcing immigration policy - it's not their purpose and using them that way perverts their other, more important functions. The feds, not DPS, are responsible for enforcing immigration laws, plus the agency's focus on restricting drivers licenses actually makes people less safe - particularly drivers, which is most of us, because if you can't get a drivers license you can't get liability insurance.

Somewhere around 25% of Texas drivers don't have insurance, and while not all of the uninsured (by a long shot) are illegal immigrants, Texas' refusal to issue licenses to all drivers regardless of immigration status ensures there's a baseline of perhaps a million uninsured drivers on the road at any given time. These drivers are uninsured by state policy, not because of a decision to flaunt the law.

In addition, refusing illegal immigrants ID makes them essentially invisible to the system, which creates public safety problems when they become witnesses to or victims of crime, not to mention during emergencies. Ostracization policies (both refusing ID and making legal immigrants publicly identifiable by their driver's license) makes immigrants less likely generally to cooperate with or trust the authorities - who can blame them?

Clearly, between pushing drivers license checkpoints and pursuing REAL ID changes without legislative authorization, somebody at DPS (apparently the chairman, Allan Polunsky, in particular) thinks the agency should take over federal immigration enforcement, perhaps becasue the Governor is unhappy with how the feds are handling things. But that's not DPS' job, and trying to push them in that direction will make the agency less effective at its core duties that more directly influence public safety.

Would juvie probation be de-prioritized if merged with TYC?

While I remain agnostic about its core suggestion of merging the Texas Youth Commission and the Juvenile Probation Commission, the Sunset Advisory Commission staff report (pdf) provides a unique overview of the juvenile justice system across agencies and jurisdictions and supplies what will inevitably be the framework for debate over what happens at the Lege next spring.

Counties provide the backbone of the juvenile justice system, even if most of the debate publicly always seems to surround TYC (and now TJPC). Here's an excellent summation from the Sunset report of the system's broad outlines:

Texas counties supervise by far the most youth and outspend state and federal governments in Texas’ state-local juvenile justice system. Although driven largely by county initiatives, the State plays two key roles in the overall system.

The State, through the Texas Juvenile Probation Commission (TJPC), disburses funds to county juvenile probation departments and monitors them for compliance with established standards. In fi scal year 2007, TJPC provided counties with state and federal funding totaling more than $143 million, an average of 31 percent of counties’ total probation expenditures. Counties contributed another $325 million to support local probation services, including the operation of 86 secure countyoperated or contracted facilities. Probation departments supervise most youth in the system, from misdemeanants to felons, with programs that range from basic supervision to 24-hour secure detention. Local courts sent about 51,623 youth to probation departments for supervision, including probation and deferred prosecution, in fi scal year 2007.

In its second role, the State operates the Texas Youth Commission (TYC). This agency is reserved for felons, which it houses in 12 secure facilities, nine halfway houses, and 12 contract care residential programs. In fiscal year 2007, TYC expended $258 million on its facilities and programs. At their option, local juvenile judges commit their hardest-to-serve youth to TYC, but typically take this course only as a last option after exhausting local probation alternatives. Of youth referred to the juvenile justice system in fiscal year 2007, local courts sent about 2,276 youth to TYC. (Ed note: see charts at bottom left on p. 6 - p. 13 of the pdf)

A chart on page 7 (p. 14 of the pdf) titled "Juvenile Referrals and Dispositions: FY 2007, gives a terrific big-picture overview of how the system processes cases. At the macro level, 136,188 youths were arrested in Texas in 2007, but 42% were diverted by police or a magistrate and were never referred to juvenile probation.

Overall, law enforcement referred most youth to probation - 79,618 times in 2007 - while another 24,174 cases came from other sources, mostly schools, for a total of 103,792 referrals that year. Here are categories of dispositions from 2007:

• Consolidated or Transferred Cases: 7%
• Dismissed, Not Guilty, No Probable Cause: 19%
• Supervisory Caution: 22%
• Deferred Prosecution: 22%
• Probation: 27%
• Texas Youth Commission: 2%
• Certified to Adult Court: .2%

Of those who end up in TYC, 49 percent of new commitments are classified as "nonviolent 'general offenders,' whose crimes include nonviolent property, drug, or lesser offenses" (p. 9).

So we're talking about a relatively small number of cases actually referred to youth prisons, and even fewer who are violent offenders. Every kid who enters TYC has been processed by a county probation department regulated by TJPC, but the vast majority of youth cases (97.8% of referrals) aren't so serious.

Several people in the last week, both at the capitol recently and via private email, have told me they're worried that, on the adult side, merging the state's probation oversight functions with the prison system turned adult probation into essentially an unwanted stepchild at the state level, overrun in a culture dominated penal administrators who didn't know or care much about community supervision.

With juvie corrections so heavily weighted toward the probation side, as seen in these data (not to mention more focused on pre-adjudication outcomes), it's an understandable concern - certainly a risk - that a merger could leave juvie probation similarly de-priotized. After all, how much attention has the Lege paid in the last two years to TJPC compared to TYC?

Coming up: Sunset's analysis of TYC treatment failures.

RELATED:

• Will TYC-TJPC merger improve juvie corrections
• Pondering the economics of TYC abolition

R.I.P. Jim Mattox, 1943-2008

James Albon "Jim" Mattox held many jobs in politics over the years dating all the way back to his election to the Texas House in 1972 as one of the "Dirty Thirty." But most folks remember him as Texas' last, honest-to-God liberal Attorney General, a post in which he served from 1982-1990. Mattox passed away yesterday at age 65. Ron DeLord of the Combined Law Enforcement Associations of Texas rightly told the Statesman that Mattox and Ann Richards, who died in 2006, are "probably the last of that last generation of Yellow Dog Democrats and people that were just bigger than life."

See Mattox's career recalled at Capitol Annex, the Dallas News, and the Houston Chronicle.

TYC sex abuse case stalled for lack of defense counsel

According to AP:

The state's sexual abuse case against a former youth prison administrator has stalled since his attorney was arrested and stopped appearing at hearings, court records show.

Scott M. Dolin, an Austin attorney who had been hired to defend Ray Brookins in the ongoing probe of sexual abuses at a Texas Youth Commission jail, stopped appearing in court after being arrested, according to records filed by the Texas Attorney General's Office.

Prosecutors, according to the court records, learned of the arrest in February. Courts records do not indicate what charges Dolin was arrested on or where.

Dolin was removed from the case in April and Brookins, the former assistant superintendent at TYC's West Texas State School in Pyote, has repeatedly pledged to hire another attorney. But according to court records, that has not happened. ...

Brookins was originally set to stand trial in April, but the case was derailed after [his attorney Scott] Dolin failed to show up for pretrial hearings. Since then, according to court records in Ward County, the case has stood still.

The judge has ordered a hearing Dec. 18 to get Brookins lawyered up and move the case along, just in time to get the case back in the media's sights as the Legislature heads back to town.

Corrupt guards still smuggling phones onto death row

Two more cell phones were found on Texas death row Tuesday. Can their be any doubt the Polunsky Unit has a serious, continuing problem with corrupt guards on its staff?

UPDATE: And another one.

A look at Obama's AG pick: Eric Holder

I've been searching around this morning trying to learn more about President-elect Barack Obama's reported choice for US Attorney General, Eric Holder, a former deputy AG from the Clinton Administration who briefly became acting head of DOJ at the end of Clinton's term. On the assumption Grits readers may not know much about him either, I thought I'd share some of the more interesting links I found:

The New Republic said "Holder has impeccable credentials as a tough-on-crime prosecutor and superior court judge appointed by Ronald Reagan." The Christian Science Monitor called him a "seasoned pick."

Doc Berman identifies three important things to know about Mr. Holder.

Agence France Press called him an "anti-graft crusader."

Jacob Sullum at Reason says Holder's appointment is a discouraging sign for "anyone who hoped the new administration would de-escalate the war on drugs." In the '90s he favored increasing the federal penalty for selling marijuana to a felony, though Scott Morgan at Stop the Drug War thinks it's too early to say if Holder still clings to such positions.

Howard Kurtz at the Washington Post has a lengthy feature in which he reminds us of Holder's pro-active maneuverings regarding the Marc Rich pardon scandal, and Glenn Greenwald at Salon looks at other possible obstacles to his nomination.

The Wall Street Journal says Holder's nomination is going down hard with the right and National Review opines the Holder nomination is "confirming fears" an Obama Administration would return to a "September 10 mentality."

Meanwhile, liberals at The Nation complain that he was too cozy with PATRIOT Act authors and supported its reauthorization. Mother Jones offers a piece from a reporter who covered Holder as the District of Columbia's US Attorney and sums up his legacy as "not much."

NPR interviewed a family friend who said he's a technology junkie but also an "insightful" attorney with a "calm demeanor."

Holder personally opposes the death penalty but has pursued it as a prosecutor and told Congress they should "feel very assured that ... those statutes that have death penalty provisions will be fully enforced by me."

UPDATE: Juvenile Justice Today analyzes Holder's positions on juvie justice topics and supplies a link to the transcript (pdf) from his 1997 Senate confirmation hearing.

NUTHER UPDATE: Doc Berman suggests topics for questioning at Holder's Senate confirmation hearing.

High interest rates delay McLennan jail construction

In Waco, McLennan County Commissioners are temporarily postponing jail construction because of high interest rates resulting from Wall Street's credit crunch, the Waco Tribune Herald reports ("Rough financial markets delaying construction of McLennan County jail," Nov. 19):

McLennan County commissioners Tuesday postponed for the third straight week issuing project revenue bonds to finance the new jail because of high bond interest rates. Community Education Centers, the New Jersey-based company that is to oversee the new jail’s construction and operation, would be responsible for paying the interest on bonds the county sells to third-party financial houses.

County Judge Jim Lewis said officials had hoped to break ground for the new jail this month. However, the county is waiting to see whether the financial markets stabilize, allowing for reasonable bond interest rates. In the meantime, Lewis said, the project cannot go forward. He did not know how long the county would hold out on issuing the bonds.

“We could sell these bonds today if we wanted to, but we’d be selling them for 10 percent interest or more,” Lewis said, citing the stock market’s large fluctuations in the last week. “If we tell (CEC) that we’re selling for that high of interest, they’d say there is no way they can make this work. So it would be a prudent business decision to wait and see how the market does.”

I'd predicted precisely this outcome soon after the credit markets crashed, declaring:

it's worth mentioning the most immediate criminal justice dilemma created by the crisis - rising cost of commercial paper (debt) used to finance government construction. Some jurisdictions are already canceling debt issues approved by voters. In Houston, "the City Council [decided to] draw $100 million out of cash reserves to fund construction projects, rather than use commercial paper on which interest rates had spiked." According to a Harris County source, "the commercial paper rate was 1.74 percent a week on Sept. 11 and jumped to 5.25 percent a week later. The county also uses commerical paper."

This news makes new jail construction projects ... a lot more expensive than voters were previously told

So a month ago Harris County was balking at 5.25% interest rates, and today, McLennan County would have to pay up to 10% interest to build a jail. Every jail project in the state faces the same dilemma, which tells me to expect a serious slowdown in the rate of new jail construction as long as the credit crunch continues. With luck, that dynamic may spur county officials to more diligently seek solutions via alternatives to incarceration and jail diversion instead of just building more lockups.

Human trafficking is fallout from failed immigration policies

Texas Attorney General Greg Abbott and State Senator Leticia Van de Putte (D-San Antonio) held a press conference this week (see the video) to unveil a new AG office report on the subject of "human trafficking" (link here - pdf).

In Texas' context, human trafficking is mostly an unintended consequence of pointlessly restrictive immigration policies that forbid workers from entering the United States legally to work. When wannabe immigrants can't obtain official approval or else pay the ever increasing fees charged by coyotes (immigrant smugglers), not infrequently they'll agree to what's basically a form of indentured servitude or debt peonage to pay off the fee that, once they get to the United States, can morph into what the AG's report referred to as "modern day slavery." According to the report:

Texas is considered a major hub for human trafficking into the U.S. According to recent estimates, one out of every five U.S. trafficking victims travels through Texas along Interstate 10. Nearly 20 percent of human trafficking victims found nationwide have been in Texas. The DOJ Report on Activities to Combat Human Trafficking, Fiscal Years 2001-2005 included El Paso and Houston in its list of “most intense trafficking jurisdictions in the country.”

Sen. Van de Putte said that international agencies now consider human trafficking the second largest global criminal enterprise behind drug smuggling, tied with illegal arms smuggling. Moreover, she said, of the three it's the fastest growing.

Most of the recommendations in the report involve more training for police and others in the justice system and more data gathering and analysis, but they also suggested a couple of expansions of new criminal statutes passed last session, in particular making "commercial sexual exploitation of a person less than 18 years of age as a per se violation of the human trafficking statute," and also to "Define and criminalize child sex tourism.'” (That last one's a headscratcher ... was anybody out there claiming "child sex tourism" is legal?)

In addition to the AG's report, the Texas House Criminal Jurisprudence Committee had an interim charge on human trafficking, but they held that hearing outside of Austin and no video or audio was ever made available online. We'll get a sense of their analysis, and whether it differs from General Abbott, when they release their interim report sometime before the legislative session begins.

See MSM coverage here, here, here, and here, and a related blog post from the national ACLU. Sen. Van de Putte's bill on the subject is SB 89, for those interested the details of her proposals.

Study: 88% of Texas police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices

This morning at a 10:30 press conference up at the Texas state capitol, the Justice Project will unveil its new public policy report analyzing eyewitness ID procedures from Texas police departments. (UPDATE: Here's the link [pdf] to the full report including a matrix analyzing policies from 750 departments.) See preliminary coverage at the Dallas News Crime Blog, and here's the text of their press release:

New Study Documents Lack of Lineup Polices in Texas Law Enforcement Agencies

The Justice Project released today a new report documenting that only 12% of Texas law enforcement agencies have any written policies or guidelines for the conduct of photo or live lineup procedures. In addition, the few existing written procedures are often vague and incomplete. Overall, most jurisdictions in Texas fail to implement widely endorsed best practices that have been proven to increase the reliability of eyewitness evidence.

Eighty-two percent of Texas’s 38 wrongful convictions exposed by DNA testing were based largely or exclusively on incorrect eyewitness identifications. Texas currently has no statutory requirements for the conduct of eyewitness identification procedures.

To evaluate Texas law enforcement agencies’ adoption of eyewitness identification best practices, the Justice Project (TJP) requested a copy of all written policies regarding photographic and live lineups from over 1000 law enforcement agencies across the state under the Public Information Act. Scientific research has shown that eyewitness evidence, like trace physical evidence, can be tainted or ruined if not collected carefully according to scientifically informed protocols. Organizations such as The United States Department of Justice, the International Association of Chiefs of Police, and the American Bar Association have recommended best practices for the conduct of eyewitness lineup procedures. TJP evaluated existing policies in four key areas:

• The quality of cautionary instructions provided to the eyewitness;
• Guidelines to ensure fairness in the composition of lineups;
• Blind administration of the lineup by an officer unaware of the identity of the suspect, or equivalent procedure for ensuring neutral lineup administration; and
• Comprehensive documentation of the identification procedure, including witness confidence.

TJP found that only 7% or less of all departments have written policies in each of these areas in line with widely endorsed best practices designed to minimize eyewitness error. The full research report is available at www.TheJusticeProject.org.

“Photo and live lineups are critical moments in police investigations,” said Edwin Colfax, director of state projects at The Justice Project. “Given the fragile nature of eyewitness evidence and its documented role in wrongful convictions, it is essential that Texas require police to adopt written policies that include key reforms for ensuring the most reliable evidence possible.”

The Justice Project is a non-profit, non-partisan organization that works to improve the fairness and accuracy of the criminal justice system. Last year TJP published “Eyewitness Identification, A Policy Review,” available at www.TheJusticeProject.org. TJP is based in Washington, D.C. and opened an office in Austin, Texas in 2006.

RELATED: Unfair Park and the national Innocence Project Blog react, and KVUE has initial press coverage.