Federal judge may reverse ruling on TYC firings

According to Emily Ramshaw at the Dallas News:

A U.S. district judge should overturn his ruling that the Texas Youth Commission improperly terminated two longtime employees after the agency's sexual abuse scandal, a federal magistrate has ruled.

Two weeks ago, Judge Orlando Garcia of San Antonio said the TYC erred when it forced Patricia Logterman and Corinne Alvarez-Sanders to resign or be terminated in mid-2007. The judge made the decision without input from the Texas Attorney General's office, which mistakenly failed to file briefs defending the TYC.

On Wednesday, U.S. Magistrate Judge Pamela Mathy said the court should reconsider the case in light of the state's belated argument. Mathy also said the women should be denied their request for summary judgment, meaning they'll have to take the case to a full trial. Judge Garcia is expected to sign off on the order.

"We are pleased with the magistrate's recommendation," TYC spokesman Jim Hurley said. "This case will now proceed and the merits will be heard."

See earlier Grits coverage from when federal District Judge Orlando Garcia had ruled in favor of the fired employees.

Johnnie Lindsey, Dallas DA, tell exoneration story on daytime TV

Go here to see a clip of DNA exoneree Johnnie Lindsey, Dallas District Attorney Craig Watkins, Lindsey's attorney Michelle Moore and Lindsey's fiance' appearing this morning on the daytime TV show, The View. (N.b., It made me download special software to watch the clip on ABC's site.)

Lindsey was falsely imprisoned for rape for 26 years; he was released last year and I was lucky enough to get to meet him in Dallas on the day he finally got out of prison. Along with about a dozen other exonerees, Johnnie's been down to Austin several times this spring to help lobby for changes to eyewitness identification procedures and other innocence reforms.

Lindsey's is one of the worst eyewitness ID cases I've ever heard of: Detectives on the case MAILED the lineup photos to the victim a full year after the incident occurred and that's how he was identified. Also, the jury in his case ignored especially strong alibi evidence - a time card and a work supervisor who said if Lindsey weren't there the business' work would have stopped.

Johnnie's case is profiled on the initial episode of the new TV show Dallas DNA which is currently running on the Investigation Discovery channel.

Via Unfair Park.

BS claim of the day: 'Justice doesn't have anything to do with revenue'

Arlington, TX was the lead example in a USA Today story about cities and counties boosting reliance on traffic ticket and fine revenue to raise money during the economic downturn ("Courts trying to nail fine dodgers," April 29):

Spurred on by tight budgets and long lists of delinquents, courts across the USA are stepping up efforts to catch fine-dodgers who, combined, owe hundreds of millions of dollars in unpaid fines.

Strategies include computer upgrades, bank account garnishment and special court hearings to recoup money owed for everything from parking tickets to penalties for felonies.

"Justice doesn't have anything to do with revenue, but payment of traffic fines is important to each city that has a court," says Arlington, Texas, Deputy City Manager Bob Byrd.

This month, a law firm started combing through 37,011 unpaid fine cases in Arlington, some dating back years, to focus on collecting some of the $7.6 million owed to the court, Byrd says.

Arlingtonstarted getting tough on ticket-dodgers last year, issuing warrants for people who didn't answer Class C misdemeanors after 30 days. According to Byrd, the city pulled in $10.5 million from the payments last fiscal year, up 40% from 2007.

What the article doesn't mention is that, in Texas, this is like shooting fish in a barrel. Thanks largely to excessive fines and fees associated with traffic offenses, more than 10% of Texas drivers have outstanding arrest warrants.

Houston crime lab only reported prosecution friendly evidence

New evidence in a Houston case may or may not exonerate a man convicted of rape, the Houston Chronicle reports ("Houston man likely to be freed after 22 years," April 30), but it definitely exposed egregious misconduct by Houston crime lab personnel:

A Harris County man who spent 22 years in prison for a rape that forensic tests now indicate he did not commit is expected to be freed Thursday.

Gary Alvin Richard's expected release is the latest case to discredit the Houston Police Department's crime lab, which has been under scrutiny since 2002 because of inaccuracies.

Prosecutors and Richard's defense attorney said they will ask a judge to set him free on bail. But the two sides differ on whether recent tests clear Richard of a 1987 rape conviction that resulted in a life sentence.

Defense attorney Bob Wicoff said the new tests prove his client's innocence. Prosecutors agree that the new results contradict crime lab evidence but said they do not know if Richard is innocent.

If cleared, Richard would be the fourth Harris County man to have his conviction overturned because of faulty forensics from the Houston crime lab.

His case was revived as part of a review of more than 150 cases involving questionable blood-typing evidence from the lab. Lawyers discovered in Richard's case that crime lab analysts had conflicting results, but reported conclusions favorable only to the prosecution.

This is another example of a "team spirit" mentality that contributes to many forensic-based false convictions. Houston crime lab workers apparently weren't acting as scientists seeking independent answers but considered themselves part of the prosecution's team, omitting lab results that might not favor the side they wanted to win.

Before this, in the most recent, previous exoneration in Houston, Ronald Taylor's false conviction also resulted from HPD crime lab errors; in that case, bad forensic analysis from the Houston crime lab corroborated an incorrect witness identification. These examples show how a too-close relationship between detectives and crime lab workers can corrupt forensic results. When lab workers are told too much information about the case - e.g., "a witness ID'd him and we just need you to confirm" - they go into the test with a bias about what the results should be.

Such lab errors (if you can call knowingly withholding exculpatory findings an "error") constitute double tragedies because not only does an innocent person go to prison, the real perpetrator cannot be brought to justice. In both cases, the statute of limitations had run out for the actual perpetrator by the time the exonerating evidence was discovered.

While Texas and Houston have both made initial investments and taken first steps toward improving forensic science (by spending money to boost capacity, e.g., and requiring accreditation), the state has yet to do what it takes to make crime labs more independent from law enforcement or figured out how to change the institutional culture that encourages this kind of behavior.

Related Grits posts:

• Houston's Ron Taylor case shows worst possible outcome from forensic errors
  
• Crime lab workers suffered from 'team spirit' mentality
  
• Correcting forensic science errors
  
• Background materials on shoddy forensics
  
• NAS Report: Many forensic disciplines prone to error
• Justice system commonly relies on shoddy forensic science
• Shoddy forensic science ruins real people's lives
  
• CSI-Houston would be dark comedy
  

While I'm out ...

Just a few odds and ends before I head out the door for the day:

Dallas DNA
I wanted to watch and review the new TV show Dallas DNA, which premiered last night, but apparently we don't get the Investigation Discovery channel in Austin. It's focused on the efforts of the Dallas District Attorney's Conviction Integrity Unit and appears to feature quite a few people I've personally gotten to meet over the last year working for the Innocence Project of Texas. Here's an AP report about the series and the debut of its first episode last night.

Exoneree reentry struggles
The Dallas News Crime Blog brings word of a conference for exonerees on Friday in Dallas to help them deal with their reentry struggles.

Will expanded DNA database contribute to crime solving backlog?
According to an ACLU of Texas fact sheet (pdf) about Sen. Dan Patrick's SB 727 (discussed on Grits here), a bill which would vastly expand Texas' offender-DNA database to include probationers and juveniles, "A recent report on the expansion of California’s DNA databank shows that expanding the database to all felons resulted in delays of six months or more in analyzing rape kits. In one case, a rapist attacked two more victims, including a child, while his DNA sat on a shelf awaiting analysis." The bill "will cost over $4 million in State Highway 6 funds for the Department of Public Safety to process the DNA" and require new fees from probationers.

Immigrant hunger strikers demanding right to bail
Democracy Now! has a feature on 100 hunger striking prisoners at a federal immigration detention center in Port Isabel, TX. A spokesman for the hunger strikers said they're demanding the federal government recognize their constitutional right to a reasonable bail while their civil court proceedings progress. The also interview Bob Libal of Grassrooots Leadership who blogs over at Texas Prison Bidness. Here's the video (the Port Isabel story is first up):

Should it be a felony to steal a $35 goat?

(Updated and corrected.) A senate bill being heard today in the Texas House Criminal Jurisprudence Committee - SB 1163 by Seliger - to me is a classic case study of how the road to hell (or at least bad public policy) is frequently paved with good intentions.

Sen. Seliger's bill would make it a third degree felony to steal any number of cattle, horses, or exotic fowl, regardless of their value a single goat, sheep, swine or any other type of livestock. Rep. Lois Kolkhorst is carrying the bill in the House. Judging from the witness list, this is a special-interest backed bill coming from the livestock industry.

CORRECTION (see below): My apologies for misreading the bill to increase penalties for goats, sheep and swine to a state jail felony when that was already the case. This penalty hike is only for cattle, horses, or exotic fowl and livestock, stealing one of which, if the bill passes, would be a third degree felony no matter what its value.

On the Senate floor, Seliger defended the bill as deterrence against cattle rustlers but it's actually written much broader than that. But these penalties are way too high for the offense. Does it make sense to give somebody a life-long "felony" tag for stealing a goat? Searching Craigslist I found a "Nigerian Dwarf Buck Goat" for sale in Caldwell, TX for $35. Should it really be a state jail felony if someone steals a $35 animal?

In addition to boosting penalties for petty livestock theft, Seliger's bill makes it an automatic third degree felony (2-10 years) to steal any number of cattle, horses, or exotic fowl, regardless of their value. But these animals are plenty valuable and the traditional framework for theft - the higher value the item, the heavier penalty - is perfectly reasonable for these purposes. There's no good reason at all to make a special exception for goats. Or cattle, or sheep. Or any other animal for that matter.

Beyond the policy madness of a felony rap for stealing a $35 goat, This bill raises a more general complaint I have about such legislation: The political process is not honest about what it would cost. As with all bills expanding incarceration at the Texas Legislature, the official "fiscal note" for SB 1163 claims the legislation is a freebie to taxpayers, but obviously that is false.

Clearly SB 1163 will categorize more petty thefts as felonies which means more people will enter state prisons a few people will receive longer sentences for the offense, but the Legislative Budget Board says there would be no fiscal impact from this bill. That's just silly: Boosting a new category of offenses to third-degree felony status means the state now must pay more incarceration costs for anyone convicted (at around $18K+ per year in Texas). And former Class A misdemeanors that will now be state jail felonies would cost the state incarceration dollars instead of the counties.

According to the bill's criminal justice impact statement, "During fiscal year 2008, five offenders were admitted to prison and 14 offenders were placed on felony probation for theft of livestock." But a state jail felony would mean only 2 years or less for those five imprisoned individuals, while a third degree felony involves a 2-10 year sentence. And some unknown number of people formerly charged with misdemeanors for stealing small animals will now be going to Texas state jails. How can that not cost taxpayers more money?

Seliger and Kolkhorst are actually among my favorite legislators at the capitol so this isn't intended to criticize them. (The same fiscal critique can be made of nearly every "enhancement" bill.) Instead my aim is to focus attention on an ongoing institutional folly of the first magnitude: The idea that every problem can be solved through more incarceration and it costs no money to do so.

As long as I've been around the Texas Legislature, they've allowed (or arguably, encouraged) LBB to tell them official lies ("no significant fiscal implication") in their fiscal notes about how much it costs to incarcerate people. And since nobody wants a fiscal note on their own "enhancement" bill, legislators all nod and smile and go along with it.

Texas already has 2,324 separate felonies on the books, including eleven involving oysters. I wonder how many felonies this will make involving goats?

UPDATE/CORRECTION: Well, everybody sometimes makes embarrassing mistakes and I suppose yesterday was my day - probably one of many but two readers caught this one in the comment section. I misread this bill not once, but twice, mistakenly thinking it increased the penalty for goat theft when (somewhat astonishingly) that is already a state jail felony. Only theft of cattle, horses, and exotic livestock would be affected by the bill. Consider this a humble mea culpa. It was a careless, unintentional error.

Even so, it's utterly ridiculous that theft of a $35 goat would get you a felony record (just like it's absurd that it's a state jail felony to graffiti a school). As noted in the bill's criminal justice impact statement, only five people per year are sent to prison for livestock theft, but according to the cattle raisers association, last year "there were 970 cases of cattle thefts in Texas and Oklahoma, three times the number from the previous year." So it's not like they're catching a large enough percentage of cattle rustlers for the increased penalties to make a difference.

It costs $18,000 per year to incarcerate somebody in Texas prisons. So what if Texas reduced the penalty for livestock theft to the same value-based assessment we use for everything else and spent the money saved to support a single investigator at the Texas Rangers focused on livestock theft rings? I'll guarantee that would do more to actually solve the problem and in the long run it'd be cheaper, smarter and more effective.

Newspapers endorse compensation for false convictions

Two major daily newspapers today urged the Texas Senate to approve legislation improving compensation for exonerated defendants.

• Austin Statesman: Compensation for unjust convictions in Texas
• Dallas News: Exonerees deserve better compensation

The Statesman argued that the bill:

could actually save the state money by preventing lawsuits and avoiding large settlements and legal fees. Those who are awarded benefits would forfeit their rights to sue the state. And the legislation would not reward people who were exonerated but went on to commit other crimes. They would not qualify for benefits.

The best reason to pass the legislation is because it is the right thing to do. No one can give back the time or erase the miseries endured in prison. And Texas leads the nation in the number of people, 38, who have been exonerated by DNA testing. Perhaps attaching a cost to wrongful convictions will help improve the legal system.

The Dallas News editorial concluded:

Without this measure, the state will continue committing a double injustice to these people – once for their wrongful imprisonment and again for the failure to help them rebuild their lives once they're set free. Two wrongs make the Timothy Cole Act the right thing to do.

Meanwhile, quite a bit of other postive innocence-related legislation is still alive and moving, including the Senate version of a bill to require police departments to implement policies governing eyewitness identification procedures that will be heard tomorrow in the House Criminal Jurisprudence Committee.

Several other Senate bills on innocence-related topics have come over to the House, including legislation related to recording police interrogations, requiring corroboration for jailhouse informants, and expanding post-conviction writ access for defendants in cases where scientific evidence has been discredited. Most of this legislation doesn't face significant opposition and, as is often the case at the end of Texas legislative sessions, time is arguably its biggest enemy.

MORE: See a press release from Rep. Rafael Anchia about the compensation bill.

Repaying Debts: Child support, victim restitution should be top priorities for offender payments

After I wrote recently about a slew of bills increasing fees for probationers, Carl Reynolds from Texas' Office of Court Administration pointed out a recent report from his shop in conjunction with Dr. Tony Fabelo of the Council of State Governments' Justice Center titled "Repaying Debts" that addresses these and other closely related subjects. Some of their recommendations fell right in line with the issues raised in my post:

• Provide lawmakers who are considering legislation that would impose or increase fines, fees, or surcharges with an impact statement projecting the legislation's effect on the ability of a person released from prison or jail to meet his or her child support and restitution obligations.

• Curb the extent to which operations of criminal justice agencies rely on the collection of fines, fees, and surcharges from people released from prisons and jails.

In addition, the report suggests some creative solutions for this longstanding, seemingly intractable problem:

• Design sanctions, such as increased supervision and mandatory service at a restitution center, to compel people under community supervision to meet their financial obligations.

• Develop a range of incentives, such as certificates of good conduct and waivers of fines, fees, and surcharges to help people who are willing to meet their financial obligations.

See also OCA's analysis of the financial burden facing parolees (pdf) from Texas prisons when they get out and how that can contribute to recidivism.

I've not read the full report in detail, but it appears to emphasize, appropriately, repayment of child support and restitution to victims over court fees and supervision costs, a re-prioritization that I would wholly endorse.

I'm glad to see there are folks out there thinking about these issues more systematically than the bipartisan bill authors promoting new nickel-and-dime fee hikes each and every legislative session.

Impeaching Sharon Keller: First Lege discussions on removing Court of Criminal Appeals' Presiding Judge

For the first time in 34 years last night, the Legislature heard an impeachment resolution regarding a sitting judge - Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals. I couldn't attend but am listening to the hearing online this morning.

Rep. Lon Burnam who brought the resolution said the Judiciary and Civil Jurisprudence Committee is being asked to recommend that the Speaker of the House form a committee to scrutinize Keller's conduct and make a recommendation whether to impeach, not to act themselves as finders of fact.

Here's initial coverage from the Dallas News , the Austin Statesman, the Fort Worth Star-Telegram, and the Daily Texan. For those with a few extra hours on their hands, here's a link to the hearing video archive; Burnam's HB 480 begins at the 3:03 mark.

Impeachable offenses are not defined in the Texas Constitution, said Burnam, but a 1924 ruling in the impeachment case against James "Pa" Ferguson established that officials can be impeached in Texas. In fact, that case held it was the "responsibility" of the Legislature to pursue impeachment if the officeholder breached the public trust.

Burnam's resolution focuses only on her actions in the Michael Richard case, but he said there were at least three other grounds for impeachment he believes are applicable. If the House were to approve impeachment articles, he said, Judge Keller would be temporarily removed from the bench until a trial in the Senate could permanently remove her.

A former appellate judge from the First Court of Appeals in Houston, Michol O'Connor (a female), was the first witness, declaring that three things justified her impeachment - her actions in the Michael Richard cases, her stated partiality toward the prosecution, and her incompetence as a judge. In the Richard case, she said, the court wasn't closed "in any real sense" at 5 p.m., she said, since the assigned duty judge was waiting there to hear the appeal. She said she'd never heard of a capital case when a request for a 20-minute delay was denied by an appellate court.

Judge O'Connor particularly emphasized Judge Keller's partiality toward the prosecution, declaring that alone should be enough to justify her removal. This to me is an even stronger argument for her ouster than the Michael Richard debacle. Imagine a family court judge who declared themselves "pro-husband"!

Judge O'Connor went through all the various reasons judges had been removed from office in Texas, arguing that Judge Keller's behavior was worse than any of them. She said she doesn't know anyone who believes Keller should stay in office.

The hearing lasted nearly three hours with most of the testimony favoring impeachment.

See also an analysis of the facts in the case from two dozen legal ethicists recently submitted to the Commission on Judicial Conduct.

MORE: From Mark Bennett who attended the hearing; he testified in favor of the resolution at the 5:41 mark in the archived video on behalf of the Harris County Criminal Lawyers Association.

AND MORE: At my request, Rep. Burnam's office forwarded me a copy of the written testimony from Charles Herring, an attorney, scholar and author on legal ethics and malpractice who testified at the hearing.

Also, go here to download the Texas Supreme Court's ruling in Ferguson v. Maddox (1924), a case that was much discussed at the hearing. This appears to be the key precedential case governing impeachment proceedings in Texas.

Finally, Burnam's office forwarded me another document that I'm having trouble uploading - a resolution from the Texas House in 1975 appointing a committee of the type Burnam is seeking to prepare impeachment articles against Judge O.P. Carillo from Duval County. The House later charged Carillo with 12 counts of misconduct, including stealing groceries. (Only two counts were sustained by the Senate.) That's the last time the state of Texas impeached a sitting judge, and according to Burnam, Rep. Senfronia Thompson is the only current legislator who actually sat on the impeachment committee.

MORE: Steve McGonigle at the Dallas News has a good account of the testimony from Keller's only defender at the hearing, former CCA Judge Frank Maloney. Here's an account of the hearing from Mary Alice Robbins at Texas Lawyer.

Exposing judicial misconduct on right-to-counsel

Following up on sentiments expressed in this thought provoking post, Harris County Criminal Lawyers Association chief Mark Bennett issued this message to Harris County criminal court judges who aren't following the law regarding bail and the right to counsel:

Dear Harris County judges:

The following is a non-exhaustive list of conduct, engaged in by you or your staffs, that is likely to get you grieved:

• Telling defendants, “If you don’t hire a lawyer, you’re going to come back every day and stay until 11:30 until you hire a lawyer.”
• Telling defendants, “Go hire a lawyer from the hallway.”
• Telling defendants, “You made bond. You can’t have an appointed lawyer.”
• Removing appointed counsel from cases when defendants make bond before substitute counsel is hired and without a hearing.
• Telling defendants, “Hire a lawyer or go to jail.”
• Jailing people for not hiring lawyers.

The days of the Harris County Criminal Lawyers trusting the Commission for Judicial Conduct to do its job are past. If a grievance is filed, it will be news.

Most of you would never do any of these things. That’s great. No need to protest. I hope your staffs realize that you would never do these things.

I know that some of this conduct has been going on for longer than I’ve been a lawyer. If you have a quibble or doubt about whether any of it is unethical, I’d be happy to have a friendly discussion with you about it; maybe you can convince me that it is not only traditional, but also legitimate. I raise these issues because I don’t want HCCLA to have to grieve any more judges. I’d rather the unethical behavior just stopped.

Love,
Mark.

There you have it. Harris County judges can't say they haven't been warned!

Improving criminal justice data

A couple of GOP senators want Texas criminal justice data improved:

The House Public Safety Committee today will hear SB 777 by Sen. Steve Ogden that requires DPS and local agencies to gather statistical information about outcomes in Texas DWI cases - how many are dismissed, how many plead to lesser charges, etc.. See the text of the bill (pdf) for the information they'd gather in an annual, statewide report.

Meanwhile, speaking of crime data, a good bill by Sen. Florence Shapiro, SB 1061 - aimed at counties which aren't meeting their obligations for reporting crime and adjudication data to the Department of Public Safety - passed the Senate last week and is waiting to be assigned to a House committee. This is a longstanding problem I've written about several times. Counties that don't report 90% of the required data will be required to create a committee to come up with a "data reporting improvement plan." Shapiro said on the Senate floor that if this doesn't do the trick, in two years the Lege will need to come back to add penalties and put more teeth in the law.

I like both these bills and am glad to see them moving through the process. It's good to see legislators seeking more information to help them make decisions instead of just winging it and flying blind.

Keller impeachent proceedings begin today

I didn't think we'd see this during the 81st Texas Legislature, but the impeachment resolution for Presiding Judge Sharon Keller of the Court of Criminal Appeals will be heard this afternoon in the Texas House Judiciary and Civil Jurisprudence Commitee. The Dallas News Trail Blazers blog has this preview:

- Back in committee, Sharon Keller, the chief justice of the Texas Court of Criminal Appeals, could soon face impeachment proceedings - there's a resolution under review by the House Judiciary and Civil Jurisprudence Committee to consider impeachment for "gross negligence of duty ... with willful disregard for human life." Keller's court hears appeals in capitol murder cases, and she refused to keep her office open past 5 p.m. to accept an appeals filing hours before an execution in 2007. The committee hearing begins upon final adjournment of the House.

- At the same hearing is a bill to dissolve the Court of Criminal Appeals and combine its role with the Texas Supreme Court. There's also a bill requiring state documentation of frivolous lawsuits.

Mark Bennett, blogger extraordinaire and president of the Harris County Criminal Lawyers Association will be coming in to town for the event and points to this request for public input by resolution sponsor Lon Burnam:

“It is important that the committee be made aware of the public’s desire for impeachment,” [Texas Representative Lon] Burnam said. “I encourage anyone who wishes to see justice done in this matter to come to room E2.010 in the capitol on Monday afternoon and register ‘for’ House Resolution 480.”

See Burnam's press release about the resolution and hearing, which begins upon adjournment of the Texas House of Representatives this afternoon.

RELATED: "Ethicists say Keller should be removed from bench."

CPPP: Foster kids face more school discipline

It's not particularly shocking that abused and neglected kids in foster care are more likely to be disciplined in school (and thus more likely to wind up in the juvenile justice system), but according to a new policy paper (pdf) by the Center for Public Policy Priorities, "31 percent of all [Texas] students in foster care received at least one discipline action versus 17 percent of the general student population."

Foster kids are nearly twice as likely to be disciplined as average students, says the group, and they're significantly more likely to receive an out-of-school suspension for misbehavior compared to their peers. Among youth who received discipline, foster kids were half again as likely to engage in "serious/persistent misconduct."

CPPP suggests that, as the kids' managing conservator, the Department of Family and Protective Services may not be doing enough for to assess foster kids' fairly predictable support needs. "Getting more students in foster care who have emotional problems eligible for special education services will not only get them the support they need to do better in school," the paper suggests, "it should improve discipline outcomes as well."

See more in the policy paper (pdf) from CPPP (or as I call them, the Center for too many Ps) on the Texas school disciplinary system and foster care children, including a good overview of the disciplinary process facing Texas youth along the way toward the juvenile justice system.

'Imprisoned by Stereotypes'

From Doc Berman:

Inside Out, the online magazine of the Prison Fellowship, has this interesting cover story with the same title as the title of this post. Here is how it gets started:

When the average person conjures an image of a prisoner, what is pictured? Does the mind’s eye see a lone shadow with defiance and anger on his face and evil and ill-intent in his heart, prowling for trouble and poised to wreak violence? And who or what provides this image? Movies? The news media? Fear?

When three people from Texas look into the faces of prisoners, they see an opportunity for repentance, a prospect for a second chance, a vessel of potential. Their perception of prisoners is not based on sensationalized images from any screen, or on what they think it means to be a prisoner. Among them, they have more than three decades of experience in prison ministry. And while they, too, acknowledge that there are prisoners who live up to society’s stereotypes, there are also those who reduce such notions into myth.

Here's a brief description of the three Texas prison ministry volunteers profiled:

With 15 years of prison ministry experience, Lloyd Knapp points out that people inside prison and people outside of prison have at least one major similarity: the capability of making poor choices. The difference between prisoners and nonprisoners most often lies within circumstance. “There are those of us who commit crimes, and there are those of us who don’t get caught. Obviously most of us haven’t committed murder or done drugs, but we’ve done things that we regret or wish we hadn’t. Prisoners make mistakes, too, but they habitually make those mistakes. They’re not evil at heart; they’ve just been down that road so long, it’s difficult for them to change.”

Judy Indermuehle, a prison volunteer for more than nine years, agrees with Lloyd. In fact, she says that looking inside a prison is like looking into a large cultural mirror. “The prison population is a large mix of society,” says Judy, “same as we have outside. Prisoners are bad and evil, just like we are. We are capable of what they’ve done, and unless we are able to view ourselves that way, it would seem we are full of arrogance.”

Adelaide Biggs, a volunteer with more than nine years of experience inside prisons, echoes Judy’s tenacious sentiment. “We need to remember that we’re all sinners,” she says. “Jesus changes us. Most of the people I see have lived a horrible life and made terrible choices, but they know they can be different people through Christ. And isn’t that the Christian faith?”

All three volunteers agree: Prisoners are neither more nor less evil than those outside of prison. The main difference between the majority of the incarcerated and the majority of the free is not something inherent, so much as it is something acquired.

Lubbock reporter honored for Cole case coverage

Kudos to Lubbock Avalanche Journal reporter Elliott Blackburn on winning a statewide journalism prize for his three-part series titled "Hope Deferred" about DNA posthumously exonerating Timothy Cole, a Texas Tech student falsely convicted of rape who died in prison in 1999. (The reporter is not related to Jeff Blackburn, the Innocence Project of Texas attorney who represented Cole's family in his recent, posthumous exoneration.) Avalanche-Journal editor Terry Greenberg said " 'Hope Deferred' is the best piece of journalism we've done during my three years at The A-J, and Elliott deserves this recognition."

See Blackburn's full, award winning series here, here, and here.

Probation fees a sleeper issue, barrier to success of reforms

At a moment in history where more than 10% of adult Texans have outstanding arrest warrants, the ever growing array of increasingly unmanageable fines for low level offenses and fees for probationers is a mundane "sleeper" issue, one that may have profound implications in particular for how well the probation-centered de-incarceration reforms approved by the Texas Legislature in 2007 work in the long term.

This subject of onerous fees too seldom rises to a high enough priority level, I'm afraid, even on this blog. But with every new legislative session, probationers suffer from a death from a thousand cuts, and every new fee and fine makes it less likely they'll be able to successfully complete court-ordered community supervision.

The most egregious example is the Orwellian-named Driver Responsibility Program, especially the high fines for DWI offenders - it suffers about a 70% noncompliance rate! Similarly, rates of restitution payments are strikingly low in part because the amount of restitution expected from low-income defendants is frequently unrealistic in the first place.

Every two years in Texas, more nickel and dime fees are added onto probationers' plates until we've reached the point where, for many, it's unrealistic to expect them to pay. After all, most of these folks, carrying a criminal record, don't qualify for high paying jobs and a felony record precludes them from many occupations. It doesn't matter, though; the Lege just keeps tacking on fees.

I mention this after noticing a bunch of bills in this vein moving through the process, starting with one by Rep. Paula Piereson attaching a new $50 fee for probationers who are required to do community service. Similarly, version of Sen. Dan Patrick's DNA database expansion bill that passed out of the Senate includes a new $34 fee to cover the costs of processing DNA tests.

According to the criminal justice impact statement, HB 666 by Gutierrez "would increase the court cost on the conviction of certain intoxication and drug offenses from $50 to $60 and make it applicable to any offense classified as a Class B misdemeanor or higher that falls within specified offenses types, including assault, arson, robbery, burglary, theft, fraud, weapons, and intoxication."

A bill that passed out of the House Criminal Jurisprudence Committee and is waiting in Calendars, HB 2389 by Hernandez lards on more fees for alcohol offenses, creating "a $50 breath alcohol testing program fee as a court cost for persons if convicted of one of seven Penal Code offenses: Driving While Intoxicated (DWI), Driving While Intoxicated with a Child Passenger, Flying While Intoxicated, Boating While Intoxicated, Assembling or Operating an Amusement Ride While Intoxicated, Intoxication Assault, or Intoxication Manslaughter. It would allow counties to retain $5 of each fee collected for administrative costs," according to the fiscal note.

Another bill that's out of committee makes mandatory use of "ignition interlocks" for all DWI probationers and makes them pay for the costs. A bill requiring electronic monitoring for registered sex offenders requires them all to pay for the equipment. Another bill that passed out of committee in the Senate would authorize arrest for someone who is able to pay for monitoring costs, in the view of the court, but fails to do so.

Maybe it sounds petty to complain about a $50 additional fee, but my real complaint is the overarching trend. We see more of these fees literally every session, and probationers already owe fines, court costs, probation department fees, restitution and can be required to pay for their own drug or alcohol treatment and testing. If they don't pay the mounting fees, fines and costs, they face revocation or at least an array of intermediate sanctions, none of which are themselves free to the taxpayers.

These costs partially explain why so many defendants actually choose jail over probation for many low-level offenses, even though it costs the taxpayers much more. When that happens, or if they're revoked to prison, the state all of a sudden must foot ALL their costs, so surely it makes sense to invest the much smaller amounts on the front end if it means not overburdening probationers with fees to the point they cannot succeed?

It won't happen in the 81st Legislature, but somewhere down the line - perhaps in an interim charge by one of the relevant committees - this issue needs to be studied in more detail and the issue of probation fees rationalized. If we as a society believe that police protection, criminal adjudication and the incarceration of people for crimes is a primary role of government, then we need to pay for those functions with tax dollars and stop larding on ever-higher pile of debts onto people who largely can't afford them.

You can't squeeze blood from a stone, the saying goes, and trying doesn't make us any safer. In fact, it can contribute to probationers' sense that the system is so slanted against their success they should just stop trying, contributing to despair and, ultimately, to recidivism.

House to consider exoneree compensation bill today

I'm headed to the capitol this morning on behalf of the Innocence Project of Texas to hear the Texas House consider legislation to boost state compensation for innocent inmates who've been exonerated by DNA evidence, and also expanding compensation claims to include the families of innocent people who die in prison, precluding civil ligiation if they take the settlement. Dallas News editorial writer Tod Robberson has a good item in support of the legislation, writing that:

This bill, sponsored by Rep. Rafael Anchia of Dallas, is named for Timothy Cole, whom we've written about on our editorial page. Cole died in prison in 1999 while serving a 25 year sentence after being wrongfully convicted for the rape of a Texas Tech student in 1985. Another man confessed to the crime and subsequent DNA tests confirmed that Cole could not possibly have been the rapist. It was the very definition of a travesty of justice.

Anchia's bill would increase the lump sum compensation paid to victims of wrongful imprisonment from $50,000 to $80,000 for each year of imprisonment. In addition to the lump sum payment, the bill also requires the State of Texas to make monthly payments to the exonerated individual for life plus pay health insurance and provide up to 120 hours of free tuition at a career center, community college or state university.

This is one bill that deserves quick approval so we can at least partially compensate individuals who, largely because of prosecutorial overzealousness, served prison time for offenses they didn't commit.

Timothy Cole's youngest brother and his mother, Cory and Ruby Cole-Session, will also be in the gallery today to hear Rep. Anchia's legislation considered. This has been quite an emotional journey for them.

UPDATE: The House approved this legislation overwhelmingly on a voice vote on the Major State Calendar, a signal from the leadership that they considered this a high-priority bill. I was pleased to discover 8 of Texas DNA exonerees - in addition to the Cole family - had come into town to watch the vote - I hadn't expected that! The House members stood and applauded them when Rep. Anchia recognzied them after the bill had passed. A number of the reps came out to greet them afterwards in a sea of smiles, hugs and goodwill.

I've gotta tell you, I couldn't be more proud of the exonerees for having the moral strength and personal fortitude to come to Austin over and over to support improving Texas' laws, not just on this but on all the good public policy bills, too. If I'd spent two decades or more in prison for a crime I didn't commit, I don't know that I'd be able to muster enough faith in the system to even bother participating in the legislative process. The boost in compensation, access to healthcare and educational opportunities in the bill will be a huge boon for these fellows, and I couldn't be more happy for them.

Thank you to Rep. Anchia, his joint and coauthors, and many other supportive House members for taking a substantive and important step toward securing a modicum of justice for Texas' DNA exonerees.

More graffiti shennanigans in the House

Having added graffiti to the friggin' organized crime statute yesterday, today the Texas House will hear yet another bill boosting penalties for graffiti, HB 1633 by Walle et. al., making graffiti of any amount a felony on the third offense and boosting restitution and community service requirements, combining the contents of several different pieces of legislation. When those bills were heard in committee, I wrote:

At this point, graffiti crimes have been enhanced so many times that further penalty increases can only be viewed, IMO, as acts of showmanship rather than statesmanship. Lawmakers want to be seen as doing something about graffiti in reaction to angry constituents, but the only thing anyone ever does is jack up penalties, which has basically done nothing to abate the problem.

The fact is, penalty hikes are among the least effective ways to reduce graffiti because a) penalties have already been increased many times and b) so few people are arrested for the offense, particularly compared to the tens of thousands of separate graffiti offenses committed statewide every year (much of which goes unreported). Austin alone had more than 15,000 reported graffiti incidents in 2007. By contrast, according to the criminal justice impact statement for the bill:

In fiscal year 2008, approximately 174 persons [statewide] were placed on community supervision (42 felony and 132 misdemeanor), approximately 29 persons were admitted to state jail, and one person was admitted to prison for the offense of graffiti. Based on arrest history data, direct court sentencing trends, and revocation rates, approximately 14 percent of the individuals would be sentenced to a term of incarceration in a state jail and approximately 21 percent of the individuals would be placed under felony community supervision annually as a result of the provision providing penalty enhancement for previous graffiti convictions.

So these "enhancements" will affect only a tiny number of people compared to the volume of graff writers out there, boosting the number sent to state jail from 29 to 47 in the first year. That's why I say such legislation is "just for show." It won't impact the amount of graffiti in the world substantially and instead is more about politicians wanting to look "tuff."

It will, though, cost the taxpayers. As usual for penalty enhancements, the fiscal note claims the bill will have "no significant fiscal implication," but that's just an official bureaucratic lie. Obviously, when you incarcerate more people it is not free. In reality, even at only 18 people per year and an average cost per day of $47.50 (according to LBB), HB 1633 will cost more than $300K in the first year and double that in the second, not to mention every year afterward.

That same analysis, btw, is true of every penalty hike for which the Legislative Budget Board says there's no significant fiscal imact - you don't get to incarcerate people for free and the no-cost estimates are just politicized math to allow the bills to pass without being required to allocate money to pay for them in the budget. How many legislators can think of a project for which they'd like to spend $900K over the next biennium? If the fiscal note were honest they could have that debate, but instead the Lege just pretends locking people up is free.

By contrast, in Corpus Christi it cost $77,000 to purchase a "graffiti buster" truck to actually remove graffiti, which is a much greater service to crime victims. For the cost of this bill in the next biennium, the Lege could issue grants to purchase 11-12 such trucks for use by local probation departments to clean up graffiti using probationers' community service hours. That approach would actually reduce graffiti significantly and get a lot closer to placating victims of graffiti crime. (But then they would have to admit the solution costs taxpayers money.)

Nothing will "solve" graffiti, which has been with us since ancient times; it can only be managed, IMO most successfully through a three-pronged approach of enforcement, rapid cleanup (hence my advocacy for the graffiti-buster trucks) and provision of public spaces for invited art.

This legislation is more an act of public relations than legitimate public policy, but if that's the goal it'd be cheaper for the taxpayers if the authors just issued a press release.

UPDATE: The bill was modified slightly with a house floor amendment suggested by the ACLU of Texas that applies the enhancement only when the defendant is older than 17 years of age.

See related Grits posts:

• Kids do less art in school, more in street: Lege reacts with hammer
• Boosting penalties the wrong approach on graffiti
• Graffiti solutions: A cost-benefit analysis
• Toward a restorative graffiti policy
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Out of our minds: Isn't felony graffiti overkill for sixth graders?

Graffiti as organized crime?

On the House floor today, Rep. Joe Moody had a perfectly reasonable bill that added people conspiring in prison and jail escapes under the organized crime statute. But the freshman Democrat accepted a "friendly" amendment from Rep. Dwayne Bohac to define graffiti offenses, of all things, as "organized crime" if committed by three or more people in combination.

Bohac said he wants to target criminal street gangs, but as written the amendment would allow prosecution of any three high-school kids who spray paint an underpass as "organized crime," enhancing Class A misdemeanor graffiti offenses to a third degree felony.

Overkill, much?

If your teenager was caught with two friends writing their names on a wall, would you think it's justified to prosecute them under the same laws created to go after the mafia?

What are these people thinking? Are they thinking at all?

Roundup: Judges, Journalists and Jails

While I'm focused elsewhere today, let me point readers to several items that might deserve individual blog posts if I had more time:

No good answers for picking judges
I'm virtually certain nothing will change this session, but there's been a lot of debate this year over whether to shift from elected to appointed judges. Personally I don't have a big problem with electing judges because the appointed ones can be just as biased and political.

Protecting journalists before they're extinct
By contrast, it looks like the Lege may finally pass a journalists' shield law, possibly just before the last ones leave the building and turn out the lights at the state's daily newspapers.

Collective bargaining for private jails?
Texas Prison Bidness lets us know about a bill by Rep. Mando Martinez that would probably do more to improve conditions in private jails than any regulatory reform: It would void private jail contracts unless the county enters into the contract in a collective bargaining agreement between the county and sheriff's department employees. Texas police unions have been pushing for collective bargaining for years, but before now I've seldom heard anyone supporting the concept for jail or prison guards.

Scholarships backed for TDCJ-bound students
Rep. Lois Kolkhorst is pushing legislation to create a "pilot program to be based at Sam Houston State University that create[s] a loan repayment program for students who agree to a career path at Texas Department of Criminal Justice" Relatedly, the SHSU student newspaper has a story about historic ties between Sam Houston State and TDCJ.

Jail guard violated civil rights
A Bexar County jail guard pled guilty in federal court to violating an inmate's civil rights after punching him and throwing him to the ground in a detention cell.

Capital murder for killing a snitch
The Beaumont Enterprise has a story about a capital murder case in which a police informant was murdered in a federal prison.

Obama vs. right to counsel
Anyone in the criminal defense bar who considers President Barack Obama some sort of savior will find sobering the Administration's call to overturn Michigan v. Jackson, which forbids police from questioning a defendant after they've requested counsel.

Protecting judges from threats or scrutiny?
I think it's a terrible idea to conceal personal information about judges and other officials from the public - particularly information like birthdates and addresses which help identify individuals in corruption inquiries and other public interest investigations.

Call for more Senate transparency
A Dallas News editorial this week made the excellent point that the Texas Senate needs to catch up with the House regarding how much information about votes and floor amendments it puts on line and how promptly the information is posted. Particularly in an age when the MSM provides much less coverage than in the past, it's more important than ever that the public have direct, instant access to what's going on in the legislative process.

Consensus developing around juvie diversion programs

Here's a report from yesterday's joint legislative meeting on juvenile justice reform from Grits intern Tara Haelle.Thanks, Tara, for attending the hearing and providing this writeup. As always, none of the opinions expressed here in any way represent those of UT, the LBJ School, her teacher, nor anybody but the writer and editor.

At last the House and Senate are talking to each other at the Texas Legislature to iron out differences in their approaches on juvenile justice. Several hours of testimony yesterday about proposed pilot programs and the future of TYC revealed a surprisingly high amount of support for the county pilots on all sides—albeit with some caveats. There were some tense moments in the discussion, often even when conflicting legislators basically agreed. But by the end of the evening, it might not be a stretch to say the Lege is finally moving toward a consensus for supporting more community-based programs to divert kids from TYC.

The most significant development was probably a commitment from Sen. John Whitmire to try to replace the Title IV E foster care funds that have dried up from the federal government. Additional funds to fill the gap were in the House budget but not the Senate’s, which was Juvenile Probation Executive Director Vicki Spriggs’ primary concern. “I have never been against the pilots,” Spriggs said four times. “I have been for Title IV E dollars, and those are very important to me for the bigger picture.”

Counties were concerned that the legislature was going to fund the pilot programs instead of replacing Title IV-E funding. Several people who testified thanked Whitmire throughout the hearing for making the commitment to try to find replacement funds for the lost Title IV E funds

Travis County District Judge Jeanne Meurer, who has been working closely with Sen. Whitmire to develop his diversion initiative, declared the proposed “pilots” are not new, experimental, or untested programs as the phrase might imply. She said they would provide “tried-and-true programming” to divert kids from TYC, though she also strongly supports adequately funding the agency. Meurer said the counties need funding to keep diverting kids, but she does not support a competitive grant program because it doesn’t make sense to compare different counties with different populations and different needs.

Meurer said that the scandal at TYC forced her to fundamentally rethink her approach about who Travis County should be sending to TYC and who could be helped in community based settings. Not long ago, she said, Travis County sent more than 100 kids per year to TYC; in 2008 they sent 16.

Dallas juvie probation chief Michael Griffiths suggested pilot counties would accept a "cap" on the number of commitments to TYC - perhaps cutting the total they send each year by half - if they received new funding for diversion programming. He said the program could be structured so that counties must return money to the state if they go over the cap. (The decision whether to send youth to TYC will still be made by judges, he pointed out, not the probation departments - see a memo describing his suggestions.)

William Carter from Fort Bend Counties gave legislators a copy of a plan (downloadable here) from counties in the Southeast region of the state and said he believes they can divert many youth currently going to TYC if the pilots are adequately funded.

Rep. Ruth McClendon, who authored the House Sunset bill, said even with the most ideal pilot program in “Timbuktu county,” focused on mental illness and substance abuse programs and keeping kids out of TYC, it’s still necessary to make sure TYC gets the funding it needs:

“There are going to be SOME kids who are not going to fare well in my program, and no matter innovative my program is, those kids are just not going to be able to complete my program successfully and those judges are not going to sit back and let those kids terrorize the community because the state says it’s better for them to stay at home. They’re going to be burning down three and four house a night, biting off their neighbor’s ears and feet and toes, and the judge is going to say this kid cannot stay here. Timbuktu is going to be safer if I send this kid somewhere, and TYC is the place that kid is going to go. You can’t TYC down to the minimum bones.”

Whitmire bristled at the suggestion that he wants to underfund TYC, insisting that he simply doesn’t believe the reduced TYC population merits a higher budget than the Senate proposed. “There is no way that an organization that used to have a population of 5000 needs the same money” they used to get when they’re now “about the size of a junior high,” he said. “I’ll give them more damn money if they want to justify it,” he added.

Sen. Whitmire lauded TYC chief Cherie Townsend, “who’s got great vision” for continuing to implement SB 103 reforms, but emphasized that it “should be the legislature doing vision and planning with [Cherie’s] input.” Townsend made it clear that the pilot programs are not inconsistent with trying to regionalize TYC but expressed the hope that there is a clear plan for evaluating the pilots’ success. “We need evidence-based models,” she told them, but assured the committee, “whatever the will of the legislature is, we’ll participate in that.”

Michele Deitch, a UT LBJ School professor representing the Blue Ribbon Task Force on TYC, testified that the task force “strongly supports the proposed juvenile probation pilot projects” and that the pilot project proposals address numerous recommendations in the Blue Ribbon Report. The Report called on policymakers to “emphasize keeping youth in the community” and to redirect savings from decreased incarceration to prevention and community-based programs. The Task Force had also recommended limiting TYC placements to high-risk and chronic felons, and moving TYC towards a more regionalized system of care, consistent with the proposals discussed at the hearing.

Advocacy groups also support the programs as long as they “promote evidence-based nonresidential programs,” testified Isela Gutierrez from the Texas Criminal Justice Coalition. Several also called for a system of independent data collection that shows what’s really working in the programs.

MORE: See coverage of the hearing from the Austin Statesman's Mike Ward.

Crawford protesters earn First Amendment victory at TXCCA

Here's an unexpectedly positive ruling from Texas' high criminal court that shows how divided the court has become. Via the Houston Press' Hairballs blog:

The Texas Court of Criminal Appeals -- the Supreme Court for criminal matters -- has upheld a lower court's decision to toss out the convictions of two protesters arrested outside of President Bush's Crawford ranch (Does he still go to that thing anymore?)

By a 5-4 vote, the TCCA found that the arrests were not warranted.

"Today's court ruling is a monumental victory for the First Amendment," ACLU of Texas Legal Director Lisa Graybill said. "Time and again we have said that Dr. Hardy and Mr. Myers were arrested for no other reason than expressing their views."

Here's what the majority opinion said:

One might also "obstruct" a highway by aiming a strobe light at oncoming traffic, thereby rendering passage unreasonably hazardous, but cavorting on the sidewalk while dressed as a gorilla would not "obstruct" a highway. A large object placed on the side of the road, but in the line of sight on a curve in the road, might also "obstruct," although a smaller object in the same location would not. In sum, an order to move to prevent an obstruction must be reasonable in the prevailing circumstances.

[Presiding Judge Sharon] Keller took time out from fighting for her legal career to write the dissent:

Photographs from the August protest show tents, cars, and port-a-potties encroaching on the pavement, and people sitting, standing, and walking on the pavement. Implicit in the testimony of one of the officers is that no arrests were made because there were so many protesters and so few officers. The situation in August had gotten out of hand, and law enforcement officers - quite reasonably - wanted to prevent that from happening again.

We're just glad the ACLU got its filings in on time.

If we were talking about any other court, this case probably wouldn't have been so close. After all, the court was being asked to decide when someone violated the "obstruction of a roadway" statute (Penal Code Sec. 42.03) "when no actual obstruction occurred."

Judge Keller's dissent, joined by Judges Meyers, Keasler, and Hervey, agreed they weren't blocking traffic, but bizarrely claimed that defendants, "by sitting in a tent beside the road, rendered passage unreasonably inconvenient or hazardous."

It's a strange fact that four members of the Court of Criminal Appeals think you can obstruct a roadway when you're not in it, but perhaps the bigger surprise is that five judges on the court disagreed with them.

Keller impeachment resolution to be heard on Monday

I've gotta admit, I didn't believe this idea would even get a hearing, but the articles of impeachment against Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals will be heard in committee on Monday, according to a press release by Rep. Lon Burnam (received via email):

Hearing on Keller Impeachment set for April 27th

AUSTIN - The Texas House Committee on Judiciary and Civil Jurisprudence announced today that it would hear public testimony regarding the impeachment of Chief Justice Sharon Keller of the Court of Criminal Appeals on April 27th.

The impeachment resolution was introduced by Rep. Lon Burnam (D - Fort Worth ).

"It is important that the committee be made aware of the public's desire for impeachment," Mr. Burnam said. "I encourage anyone who wishes to see justice done in this matter to come to room E2.010 in the capitol on Monday afternoon and register 'for' House Resolution 480."

The impeachment resolution stems from Judge Keller's alleged violation of the Court's practice of remaining open on scheduled execution nights. On September 25, 2007, the judge instructed court staff to refuse appeal filings from lawyers for death row inmate, Michael Richard.

Richard's appeal was based on announcements made by the United States Supreme Court the morning of they scheduled execution. Although Richard was executed that night, the Court of Criminal Appeals (over which Judge Keller presides) later granted two stays of execution based on the same arguments Richard's lawyers attempted to present.

If passed, HR 480 calls on the House of Representatives to form a committee to investigate Judge Keller for "gross neglect of duty and willing disregard for human life." If the House finds cause for impeachment, a trial would then be held in the State Senate.

The State Ethics Commission is also currently investigating Judge Keller; a hearing has been scheduled for August 16th to investigate the judge's actions in the Richard Case. In addition, the Ethics Commission is investigating Judge Keller's omission of 20 million dollars in Dallas area real estate holdings from mandatory disclosure forms filed with the Commission.

Strange debate on recording interrogations

The Senate this afternoon passed Sen. Ellis' SB 116 encouraging police to record custodial interrogations on a 28-2 vote. The debate over the bill, though, was bizarre, with opponents raising strange objections that simply ignored what the bill actually does. According to the Austin Statesman:

The approved measure provides that, when practical, a custodial interrogation should be recorded, in its entirety, using audio-visual equipment or audio equipment. It requires the Texas Department of Public Safety to adopt rules for providing funds or electronic recording equipment to law enforcement agencies.

Ellis called the change, headed to the House, “a very modest step in the right direction.”

Senators acted after Ellis fielded questions from Sen. Dan Patrick, R-Houston, who expressed concern that the failure of a police officer to record an interview might be exploited by defense attorneys.

“I don’t want this to be a big loophole that you could drive a truck through to get people off” from criminal charges, Patrick said. He added that he supports Ellis’s intent.

Sen. Joan Huffman, R-Houston, aired similar concerns.

Patrick and Huffman voted against the bill (though doing his best John Kerry impression, Sen. Patrick voted for the bill in committee before he was against it).

Both senators kept saying that confessions might be excluded or defense attorneys might "get people off" because an interrogation wasn't recorded, ignoring explicit language in the bill stating that "Nothing in this article affects the admissibility of a statement that is otherwise admissible as evidence in a criminal proceeding."

So even if an interrogation is not recorded, all the evidence gained from it still would get into court. Sen. Ellis kept reading that language to him over and over, but Sen. Patrick wouldn't take "yes" for an answer.

I don't know if Patrick and Huffman simply didn't read the bill (it's only a one-pager and not very complex) or were misled by critics in the law enforcement lobby, but the whole conversation was odd and off point. Congrats to Sen. Ellis, in any event, for getting his bill through.

The legislation now heads to the House where Rep. Jessica Farrar is carrying companion legislation.

MORE: From the Texas Observer's Floor Pass blog.

See prior, related Grits posts:

• Jurors from false confession case call for recorded confessions
  
• Recording interrogations in best interest of law enforcement, justice
  
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

"In my experience, people did sometimes stick things in my underwear"

At oral arguments in a case over whether a school in Arizona had the right to strip search a 13-year old girl to search for ibuprofen, US Supreme Court Justice Justice Stephen Breyer offered up this gem of a misstatement attempting to justify the school's actions: "In my experience, people did sometimes stick things in my underwear."

Unfortunately, the case itself is no laughing matter and Tony Mauro at the Legal Times said a majority of justices seem prepared to approve strip searching students in public schools, even though the state's attorney conceded that even "cavity searches" might be constitutional if SCOTUS rules for the school district.

Apparently there's little reason to fear yesterday's SCOTUS ruling in the Gant case will presage some renewed commitment to protecting our rights against unreasonable search and seizure. Just pitiful. We need more legislative champions willing to step forward to protect the Fourth Amendment via statute because it's increasingly clear federal courts aren't up to the task.

Crunch time: Bills dying right and left with little fanfare

If you're supporting a House bill this session that was assigned to the Texas House Criminal Jurisprudence Committee but has not yet received a hearing, chances are it's already dead. As sine die looms ever closer, this is the first week that committee will cease hearing House bills. Every bill on its agenda this afternoon has come over from the Senate. (Other committees are still hearing bills for the originating chamber, though probably not for much longer.)

I wasn't a big fan of Chairman Pete Gallego's decision to set up half a dozen subcommittees where most bills assigned to Criminal Jurisprudence received their hearings, but in retrospect that was a wise move that enabled them to have hearings on a remarkable number of bills in a relatively short span of time.

Bills that have already received a hearing in Criminal Jurisprudence (or one of its subcomittees) could still possibly move through the process in time to pass this session, but those bills still waiting for a first hearing are almost certainly goners, just because of the calendar. OTOH, bills being heard from the other chamber have an excellent (though certainly not guaranteed) chance of passage.

Among senate bills that will be heard in House Criminal Jurisprudence today:

SB 257 by Estes banning sale of salvia divinorum to minors. I've written before why this appears to be a solution looking for a problem.

SB 359 by Patrick enhancing penalties for thefts, burglaries, robberies or assaults committed during a period of time and with a locale designated as a disaster area by the President, the Governor, or "any other government official under state or federal law." This seems a bit too broad and ham-handed to me. After the experience with Hurricane Katrina, it strikes me that some looting in the aftermath of disasters may be a function of straight up survival needs. I can see penalizing someone more if, taking advantage of a disaster, they decide to go steal TVs, cars, or other goods in an opportunistic fashion. But the bill doesn't have any exception, for example, for those who steal food out of desperation in the wake of a chaotic disaster. That's of particular concern in instances like in New Orleans where it took way too long for government help to arrive. This legislation doesn't quite seem ready for prime time.

SB 625 by Wentworth would revamp the Texas Task Force on Indigent Defense, renaming it the Texas Indigent Defense Council, and impose new rules on counties pursuing public defender programs, particularly those which choose to contract services to a nonprofit. I can't readily tell what the implications of this bill might be for existing PD programs, so I'd encourage readers with more specific knowledge of the topic to read the bill and let us know in the comments what you think of it. (I put in a call to Sen. Wentworth's office to clarify what exactly the bill aims to accomplish and will update when I find out more.) UPDATE: I'm informed this bill grew out of two resolutions from the Texas Judicial Council, see here and here (pdf files) for more background.

SB 828 by Whitmire is an incrementalist anti-corruption bill that would allow tallying up multiple transactions in abuse of official capacity cases in order to get to a higher penalty range "if separate transactions that violate [the statute] are conducted pursuant to one scheme or continuing course of conduct."

SB 1091 by Senators Ellis and Duncan would establish a "capital writs committee" to assist indigent death row residents in filing state habeas writs. The committee will both have staff attorneys and also farm out cases to a list it will develop of qualified habeas attorneys. The bill also would reimburse counties for similar services when the capital writs committee has a conflict of interest or otherwise is not in a position to take on the client. The committee would be disallowed under the proposed bill language from working on federal habeas appeals.

Cameras, crime reduction and cost

Do surveillance cameras in public spaces reduce crime and are they worth the cost?

I've been highly skeptical of claims by Dallas police that new surveillance cameras downtown have radically reduced crime, mainly because their results dramatically contradict the experience in other jurisdictions that have used such cameras from a long time. Typically, DPD officials simply state that crime has declined because of cameras with no documentation and the Dallas News dutifully reports it without delving into specifics.

So I was unsurprised to see this story in the Dallas News yesterday by Steve Thompson, "Dallas surveillance cameras cut crime but are costly to monitor," claiming that in areas covered by cameras downtown, "crime there so far this year is down 11 percent from 2008."

That sounds like a big number, but it wasn't until the News published a story today by Tanya Eiserer ("Dallas crime drops 18.7% in first three months of 2009") that we gained enough context to know if that means cameras "worked." She reports that, overall, reported crime in Dallas is down a whopping 18.7% compared to last year!!

So if crime in the areas with cameras declined LESS than in areas without them, how can anyone credibly claim cameras are reducing crime? It's just not true. Simply repeating officials' claims that cameras "work" doesn't mitigate actual statistical evidence that they don't.

Meanwhile, the expense from camera systems is too much for the city to handle - a quarter million dollars a year to monitor 25 cameras 24/7 - so the city will begin to ask neighborhood groups to foot the monitoring bill, in many cases after they've already ponied up to buy the cameras in the first place. Reported Thompson:

The cameras were bought with money from neighborhood, business and philanthropic groups. They cost $8,000 to $10,000 each and thousands more dollars to link their feeds to the police dispatch center.

Police, meanwhile, have provided the manpower to monitor them. Retired and light-duty officers watch feeds 24 hours a day, zooming in on people of interest.

Industry standards recommend one pair of eyes for each 25 cameras. But in Dallas, usually only two employees juggle the nearly 100 feeds at any given time.

"There's different staffing on each watch, but generally right now, we do not have the ideal staffing down there for the cameras," Deputy Chief Tom Lawrence said.

This, as dozens more cameras have been proposed and are expected in places like Fair Park, Uptown, White Rock Lake, and along Jefferson Boulevard in Oak Cliff. Money raised by neighborhood groups is helping pay for them.

"I believe they're seeing the effectiveness of the cameras, and they want to see if they can partner with the police department," Lawrence said.

At Monday's meeting, Dallas police recommended that the city pay to monitor the cameras only in designated violent-crime hot spots. In other areas, neighborhood and business groups would have to pay for the manpower themselves.

The committee members agreed and voted to take the recommendation to the full council.

Police say it costs about $250,000 a year in manpower to monitor one station of 25 camera feeds around the clock.

This is so back-assward it's incredibly frustrating. "Violent crime hotspots" aren't the appropriate place for cameras because police can't respond quickly enough. What you need in those places are boots on the ground - actual street patrols or even walking beats in targeted areas have a much greater impact on safety because a camera cannot intervene to stop a crime. Instead, the best security studies say cameras are most useful when targeting specific, high-value assets, but not for general public surveillance.

There's no cost-benefit analysis that justifies $8-10K per camera and $250K per year for monitoring 25 of them, which is why the City of Dallas is unwilling to foot the bill for their installation or expansion to new areas. And Thompson's cost analysis doesn't even take into account the hundreds of hours police must spend watching useless video that in most cases won't actually help to solve the crime. (After all, cameras can be easily defeated by high-tech means like hats, sunglasses and hoodies.)

Dallas' experience is producing some important lessons about surveillance cameras - ones they've long ago learned in the UK: Surveillance cameras in public spaces don't reduce crime, are costly to operate, and are never a substitute for police officers actually patrolling crime-ridden areas.

MORE: A commenter points out that Dallas PD's crime reduction numbers likely have more to do with the fact that they recently altered their crime reporting protocols to reclassify or omit many reported offenses - particularly burglaries. Given that, it's clear these "reductions" in crime aren't comparing apples to apples and it's impossible to tell from these data whether crime has declined overall, downtown, or anywhere else in Dallas, much less whether surveillance cameras "worked."