Tuesday, March 31, 2009

Innocence bills, exoneree testmony well received at Senate Criminal Justice Committee

The hearing on all the innocence-related legislation today in the Texas Senate Criminal Justice Committee, I thought, was a rousing success (at least from the standpoint of the Innocence Project of Texas Policy Director) with scarce little opposition to most of the reform legislation proposed.

Only the Houston police union opposed the eyewitness ID legislation (the first bill up if you're watching the video), but prosecutors and lots of other groups supported the compromise and the bill passed out of committee unanimously. (The Dallas DA's office actually suggested the bill was too weak!) Also passing with no opposition was Sen. Juan "Chuy" Hinojosa's bill requiring corroboration for jailhouse informants.

Chairman Whitmire's SB 1976 improving access to courts for post-conviction actual-innocence writs based on new scientific evidence was equally well received. (See an Innocence Project of Texas fact sheet on the subject.) The bill would make other types of new scientific evidence proving innocence on par with DNA evidence for purposes of post-conviction actual-innocence writs.

In support of the legislation, exoneree Brandon Moon delivered emotionally charged, tearful testimony about a man he met in prison who he now believes might be the innocent victim of since-debunked arson science. This was an interesting discussion, I thought, and Brandon's testimony was amazing - see the bill layed out at the 2:10:30 mark of the video. Well worth watching; Brandon was the second speaker, and I'm glad it was Mike Ware of the Dallas County DA's District Attorney's office and not me who had to follow him. Ware also spoke in favor of the bill - a significant thing since as head of Dallas' Conviction Integrity Unit he probably knows more about post-conviction innocence writs than any proseucutor in the state. The Harris DA's office opposed it but expressed support for the overall goal. I testified too, as did a couple of other Innocence Project folks.

There were lots of other good bills up today in the Criminal Justice Committee and some excellent testimony, particularly regarding reentry issues facing exonerees (see an IPOT fact sheet summarizing many of the bills).

See also AP's coverage of a press conference (see video) earlier in the day promoting the legislation.

That's how I spent my Tuesday! :) It was a pretty good day. Hasta maƱana.

MORE: See related coverage from AP, the Lufkin Daily News, Fox34 Lubbock, DFW/NBC News, and KVUE Austin.

Compensating the falsely convicted

Coming on the heels of news that Governor Rick Perry will meet with the family of Timothy Cole (the falsely convicted inmate who was posthumously exonerated in February in an Austin court), there are a slew of innocence-related bills up today and tomorrow in both the Texas Senate and the House. I've mentioned the ones up this afternoon in the Senate, but there's good AP coverage in the papers about the exoneree compensation bill that will be heard tomorrow in the House Criminal Jurisprudence Committee:

State Rep. Rafael Anchia, D-Dallas, filed a bill to increase lump sum compensation from $50,000 to $80,000 for each year of incarceration. The bill also would require the state to pay some of the compensation in annuities, assuring exonerees a lifetime income. The payments would be retroactive to exonerees who already received lump sum payments, including Fountain, and would cease if there was a subsequent felony conviction.

"I don't imagine any of us locked up more than 20 years have a lot of experience managing personal finances," said Charles Chatman, who was exonerated in January 2008 after nearly 27 years.

The bill also would provide exonerees the same health insurance given to state employees, a crucial benefit for those who often emerge from prison with severe health problems but no way to get medical coverage.

Smith's lawyers attempted to sign him up for Social Security disability, which would have made him eligible for Medicare coverage. But the government rejected Smith's application, saying he hadn't paid enough into the system to qualify for benefits.

The article also focuses on problems with exonerees' reentry to society upon leaving prison that are the focus of bills by Senators Hegar and West in this afternoon's Senate Criminal Justice Committee hearing - the lack of social services for exonerees upon release:

Exoneration hearings have become common events in Dallas courtrooms in recent years. They've also highlighted the lack of social services available to the wrongly convicted.

Such services are commonplace for convicts paroled out of prison. Parolees receive $50 and a bus ticket to anywhere in Texas upon release, and another $50 when they meet up with their parole officers, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.

There are re-entry centers in major cities that offer employment help, counseling and substance abuse treatment, and there are halfway houses for parolees who need additional supervision.

"We're not releasing people so they can be homeless," Clark said. "That doesn't happen."

But that's what routinely happens to exonerees, who are released suddenly and with no place to go.

"It's really terrible," Smith said. "People who get out on parole have a better chance of getting started on the right foot than a person who has been exonerated."

An ad hoc support system has sprung up in the absence of services from the state. Fellow exonerees have become fixtures at hearings for the newly freed.

See a further discussion of innocence-related bills up today in the Senate Criminal Justice Committee in this fact sheet from the Innocence Project of Texas.

Monday, March 30, 2009

More on innocence bills up in Texas Senate committee tomorrow

Check out a fact sheet from the Innocence Project of Texas in support of a slew of innocence-related bills up tomorrow in the Senate Criminal Justice Committee.

RELATED: From AP, "Bill would improve services for Texas DNA exonerees."

Another part of Obama's stimulus the Governor should oppose?

We've seen tons of media and blog debate about Texas Governor Rick Perry's decision to reject nearly $600 million in unemployment money from the federal stimulus package, arguing it would obligate the state and employers to continue paying for additional benefits after the short-term stimulus money runs out.

But I've heard nary a peep from the Governor, and very little from anyone else, criticizing new law enforcement grants in Obama's stimulus package with essentially the same structure - a resuscitation of Bill Clinton's COPS program - that similarly require local governments to assume long-term obligations in order to receive short-term stimulus money.

The COPS program pays for new law enforcement positions for each of the first three years, but cities or counties accepting the grants must agree to pick up the tab after that. When Bill Clinton proposed this same plan back in the go-go '90s, many cities had booming budgets from escalating real-estate prices and were willing to bet that city revenue would increase enough in three years to cover new obligations.

In that context, the idea of hiring cops on the layaway plan - hire now, pay later - perhaps seemed more palatable than today. Once these officers are on the payroll for four years, it's politically next to impossible to reduce their number, even though federal rules only require employing them for one extra year beyond the grant.

In the current budget environment, I wonder if cities and counties will be as eager to apply for this particular federal handout given the long-term budgetary strings? My bet is that many cities and counties aren't nearly so optimistic as they were in the '90s that they'll be able to pay for those extra employees three years from now. After all, because of the training and support they need, police officers are among the most expensive employees on the municipal payroll.

Texas hasn't felt the impact of plunging real-estate prices as much as places like Florida or California, but especially local governments are not immune from declining revenue streams and may rightfully be wary of taking on significant budgetary obligations during a period when crime is declining overall and locals perceive no immediate crisis.

These thoughts occurred tome after seeing this news clip from El Paso which mentioned that the county commissioners court will be considering whether to hire new Sheriff's deputies on this new federal layaway plan. That brief mention made me realize such debates must be going on everywhere in the state and nation right now, as local governments must balance whether the public-safety benefits of accepting "free" officers in the short term makes sense for the long-term budgetary health of their community.

From the taxpayers' perspective, the same argument Rick Perry is making against accepting extra federal unemployment benefits applies in spades to the COPS program.

Maybe Governor Perry should have rejected that part of the stimulus money, too?

Keller's poverty pleas draw new scrutiny to high criminal court

Under normal circumstances, the media ignore the Texas Court of Criminal Appeals, which is Texas' highest criminal court. More attention is usually paid to the Texas Supreme Court, which hears only civil cases. But a series of high-profile squabbles with and smackdowns by the US Supreme Court over the death penalty, followed up by official misconduct charges against Presiding Judge Sharon Keller, have focused more scrutiny on the court than perhaps at any time in living memory.

Good for the public, bad for the court. Judge Keller, in particular, appears unprepared for more intense scrutiny, as evidenced by a story by Steve McGonigle in today's Dallas News titled "Judge Keller's disclosures omit nearly $2 million in real estate, public records show."Whoops!

This comes on the heels of Judge Keller's sworn statement last week that her legal bills to defend against judicial misconduct charges would be "financially ruinous." But that assertion, says her lawyer, was based on her publicly disclosed assets, not the ones she concealed from the Ethics Commission:

[Keller's attorney Chip] Babcock, a partner in one of the largest law firms in Texas, said that the proceeding could cost Keller several hundred thousand dollars and that it could consume most if not all of her income and assets.

He said he based his prediction on the resources Keller listed on her latest personal financial report to the state and had not asked to see any other financial statements from his client, a member of a well-known Dallas family.

Andrew Wheat from Texans for Public Justice, a watchdog group on campaign finance issues, put it well when he told McGonigle: "It leaves one speechless to see so much left out of her personal financial statements on the one hand and then on the other hand to see her making her claims that hiring a private attorney would be financially ruinous."

How much do you wanna bet every other judge on the CCA is busy today checking whether they need to update their own ethics commission filings?

These are folks who are not used to having others question their actions or check the veracity of their public declarations as rigorously as other statewide politicians. For a variety of historical reasons dating back to Reconstruction, the CCA has mostly flown under the radar and avoided public attention. Judge Keller has changed that, maybe for good. Do you think the court is ready?

UPDATE: From Texans for Public Justice:

Texans for Public Justice (TPJ) filed complaints today with prosecutors and the Texas Ethics Commission alleging that Texas Court of Criminal Appeals Presiding Judge Sharon Keller illegally failed to disclose millions of dollars worth of real estate holdings in sworn personal financial disclosure statements. TPJ's complaints follow up on revelations reported Monday by the Dallas Morning News.

Read the full media release
View the Texas Ethics Commission complaint
View the complaint letter to Travis County Attorney

Sunday, March 29, 2009

Why bother inspecting jails if the state can't enforce the rules? Jail Standards Commission Sunset bill up this week

The Dallas County Jail just failed its seventh straight annual jail inspection this week. The Montague County Jail failed its last inspection, exhibiting conditions later described as "Animal House meets Mayberry."

Texas jails get inspected, they fail, but the problems never get solved. Bottom line: The Texas Jail Standards Commission is powerless to enforce its own rules.

With the agency up for "Sunset" review this session, 2009 should be Texas' best opportunity to strengthen the agency's regulatory authority, but such changes weren't included in the Sunset bill that was filed. The senate version (carried by Robert Deuell) will be heard in the Senate Government Organization Committee on Wednesday, April 1. (That committee is chaired by Sen. Rodney Ellis, who will have a busy week with many of his innocence-related bills up in committee the day before.)

In the House, Rep. Linda Harper-Brown is carrying the TCJS Sunset bill, which has been assigned to the County Affairs Committee (chaired by Democrat Garnet Coleman), not Corrections Committee, which would seem like the more obvious choice.

It's not that the Sunset legislation as proposed doesn't have some good things in it, particularly improving the complaint process and increasing transparency about problems found at individual jails. But it wouldn't give TCJS authority, when it finds a situation like in Montague County, to formally require improvements or sanction jails for noncompliance.

Dallas' continued failure to meet state standards and the outlandish case in Montague County clearly demonstrate that TCJS doesn't have authority to enforce its own rules. This fact was openly discussed last year during the Sunset process, but the Sunset Commission chose not to recommend such new authority. The bill could still be amended, but regrettably, the current version does not substantially strengthen the agency's regulatory clout.

Saturday, March 28, 2009

Race, class and misconduct at a Dallas traffic stop

Having been focused on what's happening in Austin under the pink dome, I'd not found time to comment on the case of NFL player Ryan Moats , who was stopped by police while rushing his family to the hospital in Dallas to be with his wife's mother who they'd been told was near death. The whole exchange was caught on the officer's dashcam video and it's generous to say the officer comes off as a bully and a jerk, while Moats was the definition of class and poise, particularly under the circumstances. Moats' mother-in-law died while the officer detained them.

Unfortunately, this being Dallas, local media and activists feel compelled turn the issue into a racial conflict because the officer, Robert Powell, is white and Moats is black. James Ragland, a columnist for the Dallas News, offered up a column titled "Racial dynamics can't be ignored in Ryan Moats traffic stop" (March 27). I think he's wrong; I think the racial dynamics can be ignored and, in this instance, should be.

There's plenty to criticize about the Moats' traffic stop without bringing race into the argument.

From my perspective, as somebody who ran the ACLU of Texas' Police Accountability Project for six years, this is a story about straight up police misconduct - an officer exhibiting arrogance and a willingness to abuse his authority in deference to his own ego, perhaps emboldened by training he's received that teaches him to take control of a situation and demand absolute compliance at traffic stops backed up by threat of force.

The case also shows why the dashcams now installed in most Texas police cruisers doing traffic enforcement are a good thing and serving the purpose for which they were installed: Protecting the vast majority of good cops who're doing the right thing while creating a record when some bully with a badge steps over the line.

From the video record, I don't view what happened to Mr. Moats' family much differently than I do the poor folks in San Marcos last year whose dog died while they were detained on the way to the emergency vet. "It's a dog, okay," the cop said to the distraught couple as the animal lay dying in the back seat, "you can get another one."

That brand of callous disregard - the notion that an officer projecting authority is more important than common sense and respecting the humanity of the situation they're dealing with - lies at the root of many cases of police overreaction and misconduct. It's an attitude that's part of police culture and training, not some racial slight.

Notably, Moats' views were more constructive than Mr. Ragland's, recognizing that what happened to his family wasn't wrong because he's black, but because he's human and an American. He told the Dallas News, "I never really throw that [race] card. From my point of view, he [Powell] wasn't going to listen to reason at all. He didn't care what I was saying."

That dynamic of interaction with civilians is fairly typical in police misconduct cases, and it's something that's embedded in police training, policies, and culture, not just poor race relations. The couple in San Marcos last year whose dog died was white.

The Moats' experience is an unfortunate and important story, but IMO Ragland's racial angle is among the least important things about it.

At the end of the day, the fact that this even became a news story probably has more to do with class than race. As Digby noted, "The Dallas police department apologized, which is terrific and all, but one wonders if the person wasn't an NFL player if he'd even get that."

Friday, March 27, 2009

Hundreds of new crimes, enhancements proposed at Texas Lege

On the Texas District and County Attorneys Association website, we find this unofficial statistical compilation of new crimes and penalty hikes proposed at the 81st Texas Legislature:
The bill filing deadline is over and we've just about got all of the horses in the corral. A preliminary head count of the bills we are tracking yields the following unofficial information:

Total number of bills tracked: 1, 445

Number of bills in the following categories:

New misdemeanors: 195
New felonies: 71
New enhancements: 109
New civil duties: 77
Sex offenders: 70
DWI: 58
Death penalty: 40
Gang bills: 37

(Percent of these bills suggested by prosecutors: about 3%!)
More than 7,000 bills were filed overall this session. H/t Shannon Edmonds.

UPDATE: Speaking of new crimes and penalty enhancements, there are quite a few of them proposed on the agenda of the Property Crimes subcommittee of the House Criminal Jurisprudence Committee Monday morning, including a graffiti bill I'd written about earlier.

TPPF report encourages Ohio model for Texas juvie reformers

The Texas Public Policy Foundation has issued a new report, "Reclaiming Texas Youth: Applying lessons from RECLAIM Ohio to Texas" (written by two academics from the Center for Criminal Justice Research at the University of Cincinnati), which a senate staffer tells me is "similar to our proposal on TYC and TJPC."

At first glance much of this looks quite reasonable, though I've not had a chance to read the document thoroughly. But my brief review also highlighted a nagging concern I've had about Texas' proposals: The success of shifting to local programs, measured in recidivism rates, said TPPF, depended entirely on the quality of programming offered to youth: "High quality programs had lower recidivism rates than programs of lesser quality."

So key to enacting such a transformation while protecting public safety would be eliminating pockets of "lesser quality" programming, ensuring adequate quality control at county youth programs
and private facilities with which they contract. Right now in Texas, many county youth detention facilities - particularly those following "boot camp" models - don't even pretend to follow the types of best practices described in Ohio by the TPPF report.

It's also worth mentioning that Mike Ward at the Austin Statesman recently criticized Ohio's juvie program for "
permitting children to be routinely shackled, mandating that children accused of certain crimes be charged as adults and by not ensuring that all children accused of crimes get lawyers.'” So Texas should definitely be selective about what policies it copies from Ohio, or anywhere else.

That said, the overall structure of the Ohio's financing mechanisms for local programming seem sound and generally applicable here, particularly if they're piloted by volunteers and phased in over several years where community resources are lacking, as was the case in the Buckeye State. Anyone with a stake in reforms at TYC and TJPC should definitely read this document, which I'm told is indicative of the general direction legislators would like to go, though not a written-in-stone blueprint.

RELATED: Looks like the TYC/TJPC Sunset bill is up next week in House Corrections; it's HB 3689 "
Relating to abolishing the Texas Youth Commission and the Texas Juvenile Probation Commission and transferring the powers and duties of those agencies to the newly created Texas Juvenile Justice Department and to the functions of the independent ombudsman for the Texas Youth Commission."

Tables turned on Judge Sharon Keller and the right to counsel

Mark Bennett brilliantly dissects Court of Criminal Appeals Presiding Judge Sharon Keller's sworn answer to charges by the Commission on Judicial Conduct, and pulls out some gems. He writes:
She spends several paragraphs reiterating the facts of Michael Richard’s case (the “he had it coming” defense), explains that Richard was not seeking not to be executed, but rather not to be executed using the current protocol (the “only hastening the inevitable” defense) and points the finger at Court of Criminal Appeals counsel Edward Marty and Richard’s lawyers (the “some other dude did it” defense).
Sounds like she's squirming a bit, doesn't it? Even more deliciously, writes Bennett:
My second favorite part of the answer is where Judge Keller claims that “If applied to these charges [Article 5] Section I-a(6)A [of the Texas Constitution] is unconstitutional under the United States and Texas Constitutions.” So part of the Texas Constitution is itself unconstitutional under the Texas Constitution.
Genius! You can't make this stuff up! You see the same kind of tortured, circuitous logic routinely in her opinions, but it's great to see it on public display in a case drawing national attention.

Bennett's favorite part, though, involves Keller "whining about having to pay the counsel of her choice." She's asking for taxpayers to cover her attorney's fees after retaining Chip Babcock, one of the best-known, highest-priced lawyers in the state, to represent her. Writes Bennett:
If there is a constitutional right to counsel in this (non-criminal) case, it certainly doesn’t provide for a judge who isn’t indigent to get counsel at the taxpayers’ expense. And Judge Keller, whose salary is at least $150,000 a year and who, by her own admission, “own[s] a considerable amount of property” — including (in 1999) a $1.3 million piece of land in Dallas, landlord to a topless bar –is certainly not indigent.

Even if Judge Keller were entitled to appointed counsel, she would not be entitled to reasonable counsel of her choice. The State is not required to ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.’” Keller knows this, of course, because she joined in the opinion (Griffith v. State — WPD).

Judge Keller says she’s being forced to choose either to “defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit.” Why Babcock’s bill for defending meritless charges should be ruinous to the millionaire scion of a wealthy Dallas family is a mystery, but if this is a legitimate concern (and it must be, since the Honorable Sharon Keller herself swore to its truth) then Judge Keller might do what the working poor often have to do in criminal cases, and hire the lawyer she can afford rather than the lawyer she wants. The right to effective counsel is not the right to the best possible counsel.

If that idea is too unpalatable to her — if the Greenhill School girl can’t conceive of having anything but the absolute best — she can always fall back on daddy’s money. And if she finds herself too proud to ask daddy Jack for help, there’s one other option. There would be no ethical issue with Chip Babcock helping her for free, if only she were no longer a judge.
MORE: From Rick Casey at the Houston Chronicle and the New York Times' Lede Blog.

Thursday, March 26, 2009

Raft of innocence bills hit Senate committee next week

Lots of innocence-related legislation posted on next Tuesday's Texas Senate Criminal Justice Committee agenda.

I'll be discussing several of these bills on the blog in the coming days. A number of them are under negotiation with law enforcement interests and will likely have "committee substitutes" which will substantially alter language currently posted online.
With that caveat, the key innocence bills up on Tuesday's Senate hearing include:
  • SB 116 (Ellis) Relating to electronically recording certain interrogations and the admissibility of certain statements made by a juvenile or a criminal defendant.
  • SB 117 (Ellis) Relating to photograph and live lineup identification procedures in criminal cases. (Scaled back substantially from original, filed version.)
  • SB 1681 (Hinojosa) Relating to requiring the corroboration of certain testimony to support a criminal conviction. (This bill expands on the requirement for corroborating informants in undercover drug stings passed when Hinojosa chaired the Criminal Jurisprudence Committee in the House in 2001; Chairman Whitmire, if memory serves, carried that bill in the senate.)
  • SB 1916 (West) Relating to the automatic expunction of arrest records and files pertaining to an individual who has been pardoned.
  • SB 1847 (Hegar) Relating to the provision of services to a wrongfully imprisoned person who is discharged from a correctional facility.
  • SB 1976 (Whitmire) Relating to procedures for applications for writs of habeas corpus based on scientific evidence establishing the innocence of a criminal defendant. (Another bill where clarifying substitute language will likely be submitted at the hearing.)
These are just the highlights; the agenda will include other, similarly themed legislation. I'm busy this afternoon or I'd expand on the each of them, but readers should discuss their initital impressions in the comments.

Obama's Mexico policy so far depressingly familiar

Though it's early, and certainly there are many other pressing issues confronting the new president, I'm increasingly dismayed with the Obama Administration's foreign policy toward Mexico.

For starters, security matters aside, Congress should never have passed and President Obama should never have signed legislation banning Mexican truckers, which not only violated a treaty but immediately inspired new Mexican tariffs on US products. That's pure economic lunacy, ignoring his own public advice on free trade by crawling into some protectionist hole at a time when the economy's retracting. Mexico Trucker understatedly calls this a "small and dangerous spat." Certainly not a good, early sign the Administration has a grasp on US economic interests regarding Mexico.

Obama has received high marks from drug policy reformers in D.C. and on the west coast who are happy he ended the crackdown on state-sanctioned medical marijuana dispensaries, but for the issues I care about most, I can't say I care much for the new president's drug policies, particularly regarding Mexican drug cartels.

Black Hawk helicopters, for example, will not solve what's essentially an economic and political corruption problem in Mexico, but that's what Secretary of State Hillary Clinton offered them on her first trip down there this week. In many border cities, it's police officers helping smuggle the drugs. Who are you going to use the Black Hawks on, the local police station in Juarez?

Here's a prediction for you: Within the next ten years these helicopters will be used to suppress indigenous uprisings in Mexico's southern states, but they won't put a noticeable dent into drug trafficking. Why would Clinton and Obama want to put themselves in a position of being responsible for that entirely predictable result? Bad idea.

On the US enforcement side, DOJ recently declared that:
The Mexican Cartel Strategy, led by the Deputy Attorney General, uses federal prosecutor-led task forces that bring together all law enforcement components to identify, disrupt and dismantle the Mexican drug cartels through investigation, prosecution and extradition of their key leaders and facilitators, and seizure and forfeiture of their assets."
Gee, that's original. Why hasn't anyone ever tried that before? DOJ announced it's sending 450 more agents to the border, but the truth is they're defending a line on a map that doesn't mean much if, as Texas' homeland security director told the Legislature recently, the cartels' "command and control" centers are actually closer to Houston than the Rio Grande. These smugglers have distribution networks spread out all over North America, you can't choke them off at one spot - that tactic failed under each of the last four Presidents and there's nothing magic about this one that will make it succeed now.

Basically, the Obama Administration is throwing good money after bad on its anti-cartel strategy through the same failed vehicles that led us exactly where we are. Again from DOJ:
DOJ's Organized Drug Enforcement Task Forces Program (OCDETF) is adding analyst personnel to its strike force capacity along the Southwest border and the Office of Justice Programs will be investing $30 million in stimulus funding to assist with state and local law enforcement to combat narcotics activity coming through the southern border and in high intensity drug trafficking areas. State and local law enforcement organizations along the border can apply for COPS and Byrne Justice Assistance grants from the $3 billion provided for those programs in the stimulus package.
So they've got plenty of new money but zilch for new strategies, is how I take this information.

Indeed, the Obama Administration is even indulging the same nativist fantasies on the nation's northern boundary, moving forward with a pointless Bush Administration initiative to require passports and more formal entry and egress to and from Canada. In practice, this will do little more than waste money on bureaucracy, back up traffic and restrict important regional economic ties - just like it has on the Mexican border, where we could cross the border with a Texas driver's license before 9/11.

Obama's Mexico policy so far amounts to more of the same, with a healthy new dose of protectionism larded on top. I'd hoped for a more thoughtful approach, starting with a greater focus on rooting out US-side corruption.

MORE: See related coverage from Drug War Chronicle.

Also, see related Grits posts:

Wednesday, March 25, 2009

Conviction upheld for only cop prosecuted in Dallas 'fake drug' scandal

Among the cases on the hand-down list from the Texas Court of Criminal Appeals today is an opinion in the case of Mark de la Paz vs. the State of Texas - litigation growing out of the infamous Dallas "fake drug" case where an informant helped crooked Dallas narcotics officers set up 24 people The opinion, written by Judge Cathy Cochran, opens:
Appellant, a former Dallas Police Department Narcotics detective, was convicted of (1) tampering with physical evidence for knowingly making false statements in a police report, and (2) aggravated perjury for making the same false statements under oath. The court of appeals reversed the convictions, holding that the trial court's admission of extraneous-offense evidence violated Rule of Evidence 404(b) and was harmful. (1) We granted review to address the application of Rule 404(b) in this context. (2) We find that the extraneous offenses were admissible to prove a fact of consequence-appellant's knowledge that his statements were false when he made them.
Cochran wrote that additional offenses brought into evidence were probative to rebut lies by De la Paz, noting that:
In each case, appellant's confidential informant planted fake drugs to frame an innocent person. In each case, appellant stated in his police report that he witnessed the contact or delivery. The extraordinary coincidence that appellant saw drug deals that no one else did three different times flies in the face of common sense. Under the "doctrine of chances," evidence of such a highly unlikely event being repeated three different times would allow jurors to conclude that it is objectively unlikely that appellant was correct in his Vega offense report or that he was truthful in his testimony
The unanimous, per curiam opinion was signed by all the CCA judges except Judge Sharon Keller, who may be busy getting ready for her removal hearing before the Commission on Judicial Conduct.

The Dallas "fake drug" scandal was uncovered because of a 2001 statute requiring confidential informants in undercover drug stings - a law passed in the wake of the Tulia and Hearne cases in which innocent people were set up in undercover drug stings. Then, after the law changed in September 2001 to require corroboration for a conviction, Dallas prosecutors went to look for corroborating evidence in cases involving their most important CI's testimony. That was when they discovered half of all the cocaine seized in Dallas County in 2001 and 75% of the methamphetamines was actually fake drugs used to set up innocent people.

So you never know what kind of dominoes will start to drop when the Lege passes reform bills like that.

As for De la Paz, he's not alone in his culpability, though he's paid the dearest price. At the end of the day, eight different Dallas narcotics officers including De la Paz and his partner signed their names to field tests claiming fake drugs were real, but none but De la Paz have been held to account by the courts.

If the Legislature hadn't installed the 2001 corroboration requirement, a lying informant's word would have been good enough to convict 24 innocent people, they all would have gone to prison or been deported, and this lurid tale of corruption would never have come to light. Makes you wonder if we might see similar revelations down the line if the Lege were to pass a requirement for corroborating jailhouse informants?

Justice Project: Faulty eyewitness IDs are leading false conviction cause

I attended a press conference at the capitol this a.m. where The Justice Project announced the release of:

a new report on Texas wrongful convictions exposed by DNA evidence. Convicting the Innocent: Texas Justice Derailed presents the cases of thirty-nine innocent men who served over 500 years in prison for crimes they did not commit. The report also highlights key reforms Texas must implement to address the flawed evidence and systemic problems that led to these mistakes.

» Read the full report online

» Download a PDF of the report

The report finds that "eyewitness misidentification is by far the leading factor in wrongful convictions in Texas." According to the press release:

the cases of thirty-nine innocent Texans who collectively spent more than five hundred years in prison for crimes they did not commit. Convicting the Innocent: Texas Justice Derailed also presents reforms Texas must implement in order to improve the quality of evidence used in criminal cases and reduce the risk of wrongful convictions.

The report details how the devastation these cases have wrought begins with the wrongly convicted, but extends out to the family members, jurors and victims who become embroiled in a terrible injustice. The press conference will feature two jurors from a wrongful conviction case ... and Cory Session , the brother of Timothy Cole, who died in prison before DNA exonerated him. Senator Rodney Ellis will address pending reform legislation that responds directly to the systemic flaws identified in the wrongful conviction cases.

The report analyzes the social costs that result when faulty evidence leads a criminal investigation off track, including the crimes committed by the actual perpetrators following the conviction of the wrong person.

See The Justice Project's full press release and initial coverage of the report from TPM Cafe.

Ironically, by focusing solely on DNA exonerations, such analyses understate the real number of innocent Texans who've been exonerated - 35 were pardoned from the Tulia drug stings, 24 innocents were set up in the Dallas "fake drug" scandal, and another dozen or so were set up by a lying informant in Hearne, an event about which a major motion picture will be released next month.

Add those to the 39 DNA cases the Justice Project examines and the number of recent exonerations easily tops 100. (And it would not be difficult for some law student to spend some quality time on Westlaw to add to the list.)

This Justice Project report represents particularly important work because Texas has refused, for the most part, to undertake any official examination of how these false convictions occurred and what can be done to correct them. In that sense, this publication fills an important gap in the debate.

MORE: See additional coverage from the Houston Chronicle.

Shackling, counting pregnant inmates

On its website, the Texas Jail Project is promoting two bills related to jail health care for pregnant women:

HB 3653: BANS the shackling of incarcerated women in labor and delivery (with some necessary exceptions for safety).
HB 3654: requires county jails to plan their MEDICAL CARE of pregnant women and also requires them to COUNT how many pregnant women they have incarcerated.

Hard to imagine a postpartum shackling prohibition would be necessary - much less during "labor and delivery" - but apparently both the Texas Jail Project and the ACLU of Texas have received complaints about the practice from inmates and their families. TJP in particular has been gathering stories from incarcerated, expectant Moms since last year.

Further confirming the practice, Diana Claitor from TJP forwards this example of shackling pregnant women from the Dallas County Jail in the form of a letter from a nurse practitioner complaining about the practice last year.

The best sobriety checkpoint bill I ever opposed

I'm not a fan, at all, of "sobriety checkpoints" on the roadways. Having grown up in the Cold War era, the whole idea has a bit too much of a "Can I see your papers, Comrade?" flavor to it for my tastes. Checkpoints where armed, uniformed agents of the state stop and question average citizens driving down the street were the kind of thing we used to point to under Communism in the old Soviet Union and say, "That doesn't happen in America."

But today, in many states, it does. And perhaps soon in Texas, too.

That said, SB 298 by Sen. John Carona authorizing sobriety checkpoints is one of the best efforts I've seen to focus the tactic in tightly on its stated goal of reducing drunk driving while avoiding Big Brother-esque pitfalls and revenue generation schemes that make civil libertarians wince at the tactic. Carona's bill was placed on yesterday's "intent calendar" in the senate (meaning it was eligible to be debated and voted on), but was usurped on the agenda by debates over higher education and the top ten percent rule. It could be voted on in the Texas Senate as soon as today.

I still oppose sobriety checkpoints and thus on principle I oppose this bill. I just don't like the idea of police stopping motorists without probable cause, believing traditional DWI enforcement tactics work better and are less invasive. But if you think drunk driving is so bad that it warrants use of more totalitarian tactics, the limits Sen. Carona places on checkpoints are a laudable effort to address the main criticisms of the practice while still authorizing its use.

Here's a summary of the legislation, which passed 9-0 out of the Senate Transportation and Homeland Security Committee:
  • Law enforcement agencies may establish sobriety checkpoints for the sole purpose of enforcing drunk driving laws, not as a way to check for warrants, liability insurance, etc..
  • Agencies must put procedures for choosing sites and operating checkpoints in writing and publish them online along with dates and times (but not locations) of the checkpoints.
  • Procedures for selecting who to stop must be "reasonably predictable and nonarbitrary."
  • "The criteria for selecting the location ... must include the number of traffic accidents in the vicinity ... in which the use of alcohol was a factor ... in the preceding 12 months and the number of arrests for intoxication-related offenses in that vicinity in the preceding 12 months."
  • Signs ahead of the checkpoint must advise oncoming motorists it's coming up.
  • Officers conducting the checkpoint must wear uniforms.
  • Encounters with motorists must be videotaped. (Note: Shouldn't there be audio?)
  • Officers may not ask to see motorists' drivers' license or insurance unless there is reasonable susupicion to believe they've committed an offense.
  • Each stop should take less than three minutes unless there is reasonable suspicion to think an offense has been committed, and police must make "reasonable efforts" to ensure each stop won't take more than one minute.
  • The total time motorists must wait to get through the checkpoint should not exceed ten minutes, and "reasonable efforts" must be made to get traffic through in less than five.
  • "A law enforcement agency may not operate a sobriety checkpoint at one location for more than four hours and may not operate a checkpoint at the same location more than once in a 12-month period. For the purposes of this subsection, sobriety checkpoints located within one mile of each other are considered to be at the same location."
  • Finally, records about the event - including time, location, duration, procedures, number of stops and arrests, and which officers were involved - must be maintained for at least five years.
That's a pretty nifty piece of bill writing.

I've long believed the reason law enforcement so badly wants "sobriety checkpoints" was as a platform for revenue generation schemes, either nabbing the 10% of Texas drivers with outstanding arrest warrants or the 25% with no liability insurance. But this proposal essentially eliminates those motives by disallowing officers from asking for ID without reasonable suspicion and videotaping the encounter. That forces agencies to operate sobriety checkpoints transparently, without improperly expanding their focus to other areas.

Carona has crafted a serious, interesting compromise on a subject that's been a biennial source of bitter contention. Indeed, part of me almost wants to support SB 298 just so we can stop fighting about it at the Lege every two years and move onto something else.

This is by far the best sobriety checkpoint bill I've ever opposed.

Tuesday, March 24, 2009

Senate reconsidering TYC budget cuts

According to the Statesman, a proposed 40% budget cut proposed in the Texas Senate for the Youth Commission "appears to be derailing." Reported Mike Ward:

In recent days, the $430 million has re-emerged for inclusion in the Senate version of the budget. That reportedly is to include a pay raise for TYC correctional officers.

If adopted at a meeting of the Senate Finance Committee this afternoon, the funding stream would mean taxpayers will spend about $84,000 per year per kid rather than $99,000, according to two Senate number-crunchers.

But $84,000 is still much more than the county incarceration and treatment programs will cost, critics note. Agency supporters insist it is justified, and is less than before.

“I don’t like this at all,” said Senate Criminal Justice Commission Chairman John Whitmire, D-Houston, an outspoken critic of the agency’s spending and among the senators who have been working to cut the budget even more.

“What we’re getting ready to pay for is an expensive, overly bureaucratic agency that has way too many high-paid central office personnel than they need.”

Even if Senate Finance doesn't dismantle the agency through the budget, I hope they move forward with Sen. Whitmire's proposal to divert youth to counties using incentive-based grants.

In the short run, it's unclear how much cheaper diversion to counties would be. Under one estimate from Dallas, counties would be reimbursed $222 per day or $81,030 per year. Other counties, including Travis and a collection of probation departments from Southeast Texas, thought they could get the job done at $175 per day, or $63,875 per year, according to documents provided to this blog. (Of course, there would also be additional state costs for grant distribution, oversight, rule enforcement, etc..)

But I do think that, just as Sen. Whitmire and the Lege have done with the adult system, the state can and should still use grant-based incentives to change local juvie policy over time so that the number of TYC commitments declines - hopefully substantially. If TYC populations decline precipitously because of the diversion grants, two years from now the arguments for dramatically downsizing it will be much stronger.

I've never really bought into the notion that transforming the juvenile justice system would be cheaper in the short-run, though in the long run that will likely be true. But my skepticism about cost savings doesn't mean I oppose more local placements for offenders where adequate facilities exist. What's more, I think incentive-based grants have a proven track record in Texas' adult system and would work equally well in the juvie realm.

My hope is that, even if the Lege decides not to slice TYC's budget as deeply this year as Sen. Whitmire and others have proposed, the House and Senate go ahead and fund diversion-oriented juvie grants for counties, as suggested in the Sunset staff report, so the state can maintain or even expand on its recent successes at diverting juvenile offenders from state-run youth prisons.

False claim of unfair competition could limit in-prison work programs

The Texas Department of Criminal Justice has very few reentry programs, but one of its more successful ones is under fire at Thursday's House Corrections Committee meeting in the form of HB 1914 by committee chairman Jim McReynolds (with a companion bill in the Senate filed by Sen. Robert Nichols), aimed at further eliminating most prison industries programs on the false assumption that they take jobs away from people in the free world.

The Prison Industry Enhancement Certification or PIE program was created 15 years ago - designed to give inmates work skills and provide inexpensive labor to industry participants. PIE has 200-300 working inmates at any given time - only five companies participate currently.

Among other things, HB 1914 would require TDCJ to reject prison industries contracts "if the board determines that the contract has negatively affected or would negatively affect any employer in this state." That's so broad, it's inevitable somebody will come forward to complain. I'm told by those involved with prison industry programs that, if this bill passes, they fear it will soon eliminate PIE programs entirely.

By all accounts, PIE has a pretty good track record as reentry programs go - recidivism is low, inmates help pay for their incarceration, pay into the Crime Victims Fund, and contribute to supporting their families in the free world. PIE graduates frequently are employed upon release by their in-prison employer, helping overcome the biggest barrier to success for ex-prisoners: finding a job.

But Chairman McReynolds and state Sen. Robert Nichols are seeking restrictions that would likely choke off PIE as it currently exists. Why, you might ask?

Last year, a company called Lufkin Trailer (in McReynolds' and Nichols' districts) cried foul claiming that a PIE-based competitor, Direct Trailer, assumed an unfair advantage because they used inmate labor and paid minimal rent for their in-prison manufacturing facility. Sen. Nichols rode to their defense, convincing TDCJ to end Direct Trailer's contract. (Even so, with this supposedly unfair competition gone, Lufkin Industries continues to lay off more employees.)

The idea that in-prison manufacturers have some great advantage is a myth. For starters, Lufkin Trailer's 2008 10-K form filed with the SEC notes that "any labor disruption could have a significant impact on Trailer’s ability to maintain production levels," however think about the labor disruptions in prisons, where lockdowns, disciplinary actions, and any number of other problems free world employers never have to deal with may significantly impact labor availability.

Further, PIE programs must comply with byzantine prison rules that simply dont' affect free-world industries - for example, elaborate systems for counting and accounting for tools at the beginning and end of each shift to keep inmates from smuggling weapons or contraband.

For that matter, all existing PIE programs are relatively small endeavors that are unlikely to directly affect other Texas' businesses. Tellingly, in their official 2008 10-K statement, Lufkin Industries announced its decision to close Lufkin Trailer but didn't once mention competition from in-prison labor as a significant factor. Instead, the company blamed
reduced activity in the home and road construction markets as well as reduced profitability from higher fuel prices. In 2007, industry order rates and backlog for flatbed trailers decreased over 40% and for dump trailers over 25% compared to 2006 levels. In the fourth quarter of 2007, industry order rates and backlog for flatbed and dump trailers decreased almost 50% compared to the fourth quarter of 2006. Due to these market conditions, in January 2008, the Company announced the decision to suspend its participation in the commercial trailer markets and to develop a plan to run-out existing inventories, fulfill contractual obligations and close all trailer facilities during 2008.
Indeed, the 10-K's specific discussion of "competition" never mentioned their PIE-based competition as a serious factor:
The trailer market is highly competitive with relatively low barriers to entry. The majority of the cost of a new trailer comes from purchased materials of aluminum, steel, tires, axles and wood flooring. Since there is minimal product differentiation in this market, price is the key driver. The companies with the highest market share are Great Dane and Wabash, along with several other large manufacturers like Utility, Stoughton, Fontaine, Vanguard and Hyundai. The Company does not have a significant market share in the trailer market.
By that account, any minor, extra competition from a small PIE outfit didn't have nearly as much to do with Lufkin Trailer's closure as macro trends in the global trailer market and competition from larger producers. Direct Trailer isn't even mentioned in the company's 10-Ks as a significant source of competition.

So the prime example being trotted out to restrict the PIE program is a false one. International market conditions and competition from larger economic players were the reasons Lufkin Trailer closed, by the company's own assessment, not some penny ante prison industries operation.

Still, Sen. Nichols in particular continues to attack the PIE program as some villainous activity while painting Lufkin Trailer as an innocent victim of a prison jobs program. What Nichols neglects to mention is that Lufkin Industries recently lost a class action racial discrimination lawsuit brought by African American employees of Lufkin Industries (Lufkin Trailer was specifically named in the suit.) The conservative Fifth Circuit Court of Appeals in February of 2008, affirmed (pdf) most of the lower court's ruling against the company, particularly related to the "discriminatory impact of [the company's] subjective promotional policies." If Nichols and McReynolds are concerned about Lufkin Trailer employees, maybe they should be seeking remedies for those problems.

I wish the Corrections Committee was looking for ways to expand the PIE program, not restrict it beyond its current, minimalist presence in Texas prisons. After all, who would you rather have released from prison - the guy who sat around the whole time working out and swapping techniques with other cons, or the guy who went to work every day at a PIE facility and learned job skills to become a productive citizen upon release?

We need more initiatives like PIE and the Prison Entrepreneurship Program to prepare inmates for success upon reentry, not less. Efforts to restrict in-prison jobs programs IMO are misguided and counterproductive to public safety.

Monday, March 23, 2009

Blogworthy news and notes

I was out of pocket Friday, Saturday and Sunday for my job, which explains the blog's relative dormancy for the last several days. I'm too busy to write separately about all the interesting stuff that's come up since then, so here are several stories that deserve Grits readers' attention even if I don't have time to fully explore them:

New jails going up
Burnet County speculatively built a much larger jail than they need hoping to lease the rest as contract beds. Now they've found a source of prisoners: The state of Texas. "SAFPF (Substance Abuse Felony Punishment Facility) and ISF (Intermediate Sanctions Facility) programs will be offered at the new 587-bed facility when it accepts its first inmates April 1." Meanwhile, in Brownsville, Cameron County broke ground on a new 356 bed jail that will push the total number of jail beds oin the county over 1,000. The new jail will cost $15 million, plus interest and operating costs.

Journalists' shield law advances
It passed out of committee but the current version of Texas' proposed shield law for journalists wouldn't include most bloggers. In a sense, given the decline in the number of reporters, newspapers, and traditional press, that omission makes the bill seem a tad anachronistic. It defines journalists broadly enough to include many serious writers and freelance journalists, though work done here on Grits, for example, would not receive shield law protection under HB 670.

Make crime labs independent?
Houston City Councilmember Jolanda Jones had a column the other day echoing District Attorney Pat Lykos' call for an independent, regional crime lab removed entirely from under control of police and prosecutors. She writes, "A regional crime lab will separate science from law enforcement, help our police officers stay focused on apprehending criminals and preventing crime, and guard against the cross-contamination of motivations and results." Making crime labs independent was a key recommendation of the National Academey of Sciences recently released report critiquing shoddy methods and practices in forensic science disciplines (about which this blog will have more to say soon).

The Google Mistrial
I've not heard of his happening in Texas yet, but according to The New York Times, "The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges."

Should have eloped

In Galveston last year, a bride's 19-year old brother got drunk and belligerent toward a police officer at her wedding, so he responded by calling in 30 more officers who decided to clear the room using "pepper spray and electrical shock Tasers to detain and arrest 13 people," including Houston Astros pitcher Brandon Backe. The event and subsequent disciplining of 13 Galveston police officers for the incident - not for excessive force but for "failing to record details of what happened" in official reports - made national headlines.

That's got to qualify as one of the worst weddings ever.

Should postpartum psychosis be a legal defense when Moms kill kids?

The Dallas News reports on legislation (HB 3318) by Texas state Reps Jessica Farrar and Garnet Coleman that would make postpartum disorder a legal defense for women who kill their children, allowing jurors to hear testimony at the sentencing phase about the medical issues surrounding postpartum psychosis, potentially sentencing the offense as a state jail felony if they believe that's what spawned the tragic event ("Proposed bill would recognize postpartum psychosis as defense for Moms who kill infants," March 23):
If lawmakers approve the measure, Texas would be the first state to have an infanticide law, said George Parnham, the Houston attorney who defended [Andrea] Yates.
"It's something every civilized country has on its books," said Parnham, a strong proponent of the legislation. "The only thing that will change public attitude is education about postpartum issues."
The bill, introduced earlier this month by Rep. Jessica Farrar, D-Houston, applies to women who commit the crime within 12 months of giving birth. If jurors find a defendant guilty of murder, they can take testimony about postpartum issues into consideration during the trial's punishment phase.
If jurors believe that the woman's judgment was impaired as a result of childbirth or lactation, they can find her guilty of infanticide – a state jail felony that would carry a maximum punishment of two years in jail. ...
Postpartum depression is recognized as a legal defense in at least 29 nations, including Britain, which has had an infanticide law on the books since 1922.
"These countries have accepted the reality of postpartum mood disorders," said Susan Dowd Stone, chair of the President's Advisory Council for Postpartum Support International, a California-based advocacy group. ...

Only one or two in 1,000 women develop postpartum psychosis that has been cited in high-profile cases like those of Schlosser, the Plano mother who killed her baby in 2004 by cutting off her arms, and Yates, the Houston mother who drowned her five children in 2001. Both women were found not guilty by reason of insanity and placed in mental-health treatment centers.
For every woman who receives treatment, there are 10 who are imprisoned for the crime, Stone said.
"These are not intentional acts," she said. "That's so hard for the public to grasp."
Postpartum psychosis is a rare condition that generally affects women with extreme sensitivity to hormonal fluctuations and a history of mental illness, Stone said.
Dr. Lucy Puryear, who was a defense expert in Andrea Yates' murder case, has written on this subject over at Women in Crime Ink. I'd be interested to hear her take on the bill. See more background on the subject from Postpartum Support International.
MORE (3/24): From Postpartum Progress, and the Houston Press' Hairballs blog. And since I'd asked for Dr. Puryear's opinion, let me highlight these views she expressed in Grits' comments:
I don't know exactly what the bill says that has been proposed but I'm not sure I'm in favor of conducting a trial and then hearing evidence about postpartum issues that would mitigate the sentance. I AM in favor of what England has, which is when a mother kills a child less than one year of age, the mother is FIRST evaluated by mental health professionals and if found to be suffering from postpartum illness then she is given appropriate treatment. It IS a waste of time, talent, and money to put an otherwise well functioning woman through a lengthy and expensive court process when the issue is medical, not criminal. It would be akin to what is being proposed in Houston, a "mental health court" where persons with mental illness are treated and tried by those who understand the nature of mental illness and it's effect on behavior.

No, I am NOT saying that if you are mentally ill then you should never be held responsible for your behavior. I am saying that if you do not have "control" over your behavior due to your mental illness than your circumstances are different. It is like having a seizure. No one can stop a seizure from happening: the behavior is avolitional, including shaking, eye rolling, wetting your pants, and being confused for a time afterwards. And yes there is medication for seizures, and guess what? People who seizure also stop taking their medication, as do people with diabetes, or heart disease, or any other medical disorder that requires someone to be compliant and tolerate side effects.

I am ranting I realize.

Very few women who suffer from postpartum illness kill their children. Most kill themselves. And of those who do committ infanticide, most kill themselves when released from jail or the hospital. When they are well they can't live with the horror of their actions.

Well, I have to go help some more people with mental illness, otherwise you'd hear more from me. Thanks for listening.

Might restorative justice principles improve drug courts?

I'm a supporter of drug court programs, but I also believe they shouldn't be immune from criticism and all such diversion programs should be constantly, rigorously tested for effectiveness. So I was interested to see a couple of recent items on the topic that collectively describe the pros and cons of this increasingly popular (even faddish) approach to adjudicating drug cases.

The Houston Chronicle last week ran a feature ("Drug courts turn addicts around," March 17) on Harris County's drug court program claiming higher success rates than the national average:

[Program director Mary] Covington said national data show that 43.5 percent of drug offenders are re-arrested a year after release.

Nationally, Covington said, 16.4 percent of drug court graduates have been convicted of new felony offenses within a year, compared to 6 percent of Harris County’s drug court graduates.

The article is well worth a read for an update and background on the 5-year old Harris County program.

An alternative perspective on drug courts was recently offered in a law review paper by Michael O'Hear, referenced over the weekend at Sentencing Law & Policy. O'Hear (I think rightly) believes that drug courts':
popularity stems in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses— or, more colloquially, on the “war on drugs.” Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, prison populations (and hence prison budgets) were escalating wildly, and many poor minority communities were being devastated by the collateral damage.
There are now more than 2,000 drug courts operating in all 50 states. Drug courts, he says, have become "the generic policy response of choice to dissatisfaction with the war on drugs," but points to one particular area where they do not, according to his research, improve over the traditional court system: "In purely quantitative terms, drug courts are unlikely to reduce [racial] disparities" ... in drug sentencing and "may exacerbate them."

The paper first establishes why, from a statistical perspective, racial disparities in drug arrests and sentencing are not justified by claims that black folks commit drug offenses more frequently. However, he says, "much evidence now suggests that white drug offenders are more likely to benefit" from the "rigorous, prescribed course of therapy" provided by drug courts than blacks.

Not only do the screening processes on the front end prevent many black people from participating, there is also a high failure rate: "although there are about 70,000 [drug court] participants at any given time, the annual graduation rate is only about 16,000," and "failure rates are higher for blacks than whites, by thirty or more percentage points" in some programs. Failure, he notes, "may result in greater incarceration than non-participation."

O'Hear considers such racial disparities a compelling critique of drug courts as they currently exist and says a "better answer" would be "re-imagining drug courts in restorative justice (RJ) terms," noting that "An abundant body of research indicates that RJ processes tend to produce higher levels of satisfaction than traditional criminal processes among both victims and offenders."

He cites a program created by the Milwaukee District Attorney - the Milwaukee Community Conferencing Program - as an example of how restorative justice programs could be crafted as an appendage to the existing justice system. At these RJ conferences,
CCP participants discuss the offense and its impact on the victim and the community more generally. They next try to reach an agreement as to what the offender will do to repair the harm. Agreements are embodied in writing, and include specific conditions for the offender that must be satisfied by a particular date. “Conditions often include some form of reflection (an essay, painting, or poem), letters of apology to the victim, specific community service, restitution in specific increments, tasks related to job/school, sharing experiences with youth, or [drug or alcohol] counseling/treatment.” Successful compliance with the conditions will result in some benefit from the prosecutor: charge dismissal, charge reduction, or recommendation to the judge for a reduced sentence.
Lately, Milwaukee has begun including drug cases in these CCP conferences, and the "basic processes for drug cases are the same as for other cases in the CCP, although there is no distinct 'victim' at the conference." For a variety of reasons, O'Hear thinks a restorative justice approach may be more "capable [than drug courts] of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates."

I'm giving the paper short shrift, but judges, attorneys, and others involved with drug court programs ought to give it a thorough read.

Friday, March 20, 2009

Delay could be chance to improve DNA database bill

While the Texas Senate Criminal Justice Committee voted several bills out of committee this week - including Sen. Juan Hinojosa's legislation eliminating life without parole sentences for juveniles, substituting a flat 40 year minimum - I was somewhat surprised to see Sen. Dan Patrick's SB 727 expanding Texas' DNA database wasn't among them.

Sen. Patrick's bill would dramatically expand Texas' DNA database to include all adults on probation, all youth sent to TYC, and every juvenile convicted of a felony, massively expanding the size of the state's DNA collection. (Presently about 155,000 people are locked up in Texas prisons, while perhaps triple that number are on probation.)

Among juveniles, too, Patrick has suggested a breathtaking expansion by including not just youth in TYC but all juvenile felons. Only a fraction of youth adjudicated for felonies are sent to TYC, but many times that number are put on probation. The inclusion of these youth bothers me because there's no provision in the bill for how juveniles (or anyone else) can petition in the future for their DNA to be removed. How long should a felony graffiti rap when you're 15 keep you in the CODIS database?

Over time, we're talking about accumulating DNA data on a large proportion of Texans. When you consider that one in 22 adult Texans at any one time is under control of the criminal justice system (about one in 11 adult Texans have a felony record), we could easily see Texas go from the 400,000 or so currently in the CODIS database to millions in just a few years.

While the Senate committee takes extra time to consider Patrick's bill, I'd strongly suggest everyone involved with that decision - both committee members and staff - read Jeffrey Rosen's article this week at Slate ("Genetic surveillance for all," March 17) articulating potential downsides to creating such an uber-database - particularly the risks to personal privacy of family members who committed no crime - as thoughtfully as anyone I've seen.

Rosen foresees a terrible, slippery slope for the DNA database from the use of familial DNA searches, which he says amount to a "DNA dragnet," especially among African-American communities.

At a minimum, I'd have to agree that "the decision to record the probabilities of each match in racial terms gives a creepy whiff of eugenics to the CODIS database." I have no idea why scientists would choose to subcategorize probability rates by cultural distinctions like race - why would that method of parsing the data be any more probative than just using the same baseline for everybody?

One reason to focus on race may be that CODIS disproportionately includes African Americans, Rosen argues, thanks to crime patterns over the period DNA has been collected:
African-Americans, by several estimates, represent about 13 percent of the U.S. population but 40 percent of the people convicted of felonies every year. The CODIS database of 6.6 million now includes samples from convicted offenders. As arrestees are added to this mix, CODIS may soon grow to 50 million samples, which might be even more disproportionately African-American. Hank Greely of Stanford Law School has estimated that 17 percent of African-American citizens could be identified through familial searches, as opposed to only 4 percent of the Caucasian population. Once the implications of the racial disparity become clear, there may be a reaction against ever-more-expansive forms of DNA collection that makes the debate about racial profiling look tame.
Given that Texas' own debates about racial profiling have been neither pleasant nor tame, from my perspective it would be better to have such discussions before the state massively expands its DNA database, not after.

Of course, privacy risks and racial profiling concerns must be weighed against the law enforcement benefits. In the scheme of things, though, the DNA database doesn't solve very many cases; Texas solved its 1,000th case last year through the DNA database after 12 years of using it, but this is a state with around 850,000 felony adjudications annually, so that's not very many. As Mark Bennett points out, "Most cases don’t involve DNA. Most rape cases don’t involve DNA. Most child rape cases don’t involve DNA."

Far and away, most crimes are solved by routine investigation. Most cases solved using DNA match biological evidence with a particular suspect, or in the case of exonerations, innocence is established by the failure to match crime scene DNA (usually a rape kit) to the person convicted of the offense. Relatively few crimes are solved through a lucky hit on the database. Even when DNA exists, Texas crime labs lack sufficient capacity. All of them are backed up with months-long waits for analyses. This bill would add to crime labs' workload when they're barely able to handle the DNA caseload they've got.

So while it's true that DNA evidence is a useful new forensic tool, the database itself is not some crimefighting panacea. It's most often useful in serious, violent offenses, but Sen. Patrick's bill extends its tentacles more broadly to every type of offense.

The only government I know of that gathers DNA on as many of its citizens as Sen. Patrick is proposing would be Great Britain, where the Labour Party under Tony Blair built a database with 7.39% of the population in it, compared to about 0.5% in the United States. How has it worked out there? Last month, the House of Lords issued a report criticizing the growth of "surveillance society" tactics in the UK, fearing openly that widespread DNA collection could be misused for "malign purposes."

The House of Lords' report highlighted possible safeguards that might reasonably be included in Texas' bill, e.g,: "GeneWatch UK called for the reintroduction of 'a system of time limits on how long people are kept on the Database—so that only DNA profiles from people convicted of serious violent or sexual offences are kept permanently.'” That seems like a sensible approach to me, particularly in light of Sen. Patrick's proposed expansion to juveniles and probationers.

I don't know why SB 727 has been delayed when other bills heard at the same time are moving on through the system, but hopefully it's to scale back the legislation's sweeping scope, particularly among juveniles, and to create protocols and mechanisms for removing DNA samples from the database.

Thursday, March 19, 2009

Needle exchange bill sails through Senate, headed to House

Having written earlier that it was possible to count 23 votes in the Texas Senate for a local-control bill authorizing needle exchange, I'm pleased but unsurprised to see Sen. Robert Deuell's SB 188 pass the Senate on a 23-7 vote. Writes Noelle at Sifting the Haystack:
While laying out the bill Senator Deuell said that if this legislation becomes law it will save the state money without costing the state any money, and that countless studies have shown syringe exchange programs do not increase drug use.

Senator Wentworth pointed out that Bexar County District Attorney Susan Reed, who blocked full implementation of the pilot syringe exchange program that passed last session, has advised his office that if this bill passes she will not prosecute people participating in the programs.

To watch the Senate consideration and vote on CSSB 188 visit the Senate RealMedia Video Archives page, scroll down and click on the March 18 Senate Session, and skip ahead to 2:07:20 into the video.
Sifting the Haystack also points to an op ed in the Abilene Reporter News supporting the legislation. The bill does not require local governments to operate a needle exchange program, and likely most won't, but for the big urban areas it makes sense, both to save lives and health care costs.

The House voted for a pilot program in San Antonio last session by a wide margin, so the bill has a decent chance of passing both chambers if the new committee chair in House Public Health will consent to give it a vote.

The biggest obstacle may be Governor Perry, who reportedly opposes the legislation despite significant small-government conservative backing for the measure - 11 of the 18 Republicans voting on the measure in the Senate supported the bill.

US media, leaders, refocusing on Mexico in wake of cartel violence

It seems like the national media is just now, finally, catching on that feuds between transnational drug cartels and the Mexican government have become a bigger, immediate security problem for America than anything happening in the Middle East. Here are several recent items that indicate the media and US leaders are thinking more seriously about the issue than at any time in recent memory:
  • Drug cartels' new weaponry means war," LA Times, March 15. "Narcotics traffickers are acquiring firepower more appropriate to an army -- including grenade launchers and antitank rockets."
  • Houston's underworld connection with Mexican drug cartels, The New Criminologist, March 16. "'Right now, we know Texas [is] the number one source of weapons smuggled into Mexico, most of them coming from Houston and Dallas,' says, Special-Agent-in-Charge, Dewey Webb, of ATF (Alcohol Tobacco Firearms)."
  • The Evolution of Los Zetas, Mexidata.info, Sam Logan, March 16. "Many journalists and analysts who write about Los Zetas still refer to this group as the enforcement branch of the Gulf Cartel. This was a true description when the original 31 Special Forces soldiers abandoned the Mexican military to protect a young, upcoming leader of the Gulf Cartel, Osiel Cardenas Guillen. But today the Zetas have evolved into a separate entity with its own agenda. And it doesn't take orders from the Gulf Cartel."
  • How to stop the drug wars, The Economist, March 4. "Prohibition has failed; legalisation is the least bad solution," reads the subhed.