DPS commander coached law-enforcement witnesses, says 5th Circuit opinion

In an opinion (pdf) issued Wednesday, the Fifth Circuit Court of Appeals upheld a lower court's ruling that the DPS Commander in charge of the department's Training Academy improperly coached Harris County Sheriff's deputies before their depositions in a Sec. 1983 civil rights suit. The ruling came in the same case that took down Harris County District Attorney Chuck Rosenthal after he deleted subpoenaed emails and ultimately resigned in disgrace. In this new decision, the Fifth Circuit ruled on findings of misconduct against three state's attorneys.

The court partially sustained sanctions against two assistant county attorneys (who were defending two Sheriff's deputies), dismissed them against Harris County ADA Scott Durfee (who represented Chuck Rosenthal), and of course there's no legal penalty at all for the DPS Commander who allegedly coached witnesses and may have given "false testimony," according to the opinion.

Looking closely at the details of the ruling, we find the court actually reached no conclusion about whether assistant county attorneys Mary Baker and Frank Sanders gave false testimony, instead vacating that part of the lower court's ruling because, in the order, the district judge listed the wrong date when their alleged false testimony occurred. According to the opinion:

Insofar as the district court found that Baker and Sanders gave false testimony during the November 29, 2004, hearing, the finding is clearly erroneous. Baker and Sanders did not testify until January 2005.

Regarding whether DPS Commander Albert Rodriguez or other officers gave "false testimony," the Fifth Circuit offered no opinion but merely vacated the lower court's ruling without elaboration on the grounds that it relied on a "legal standard too permissive of sanctions." What was wrong with the lower court's standard for sanctions? What standard should have been used? Quien sabe? The opinion is silent on these matters.

Despite that officer-friendly decision, the appellate court affirmed the finding about witness coaching which centered on allegations Commander Rodriguez was paid to instruct deputies how to alter and frame their testimony to support a pre-manufactured defense theory.

Deputy Preston Foose "denied that Rodriguez advised him how to testify at the deposition other than to tell the truth," noted the opinion, which then concluded that "Events that occurred the next day suggest otherwise." The deputy showed up at his deposition with detailed notes that mirrored a memo Rodriguez prepared for the defense and included key details Foose never mentioned before.

Though calling the evidence somewhat "scant," the Fifth Circuit upheld the lower court's findings that the deputy appeared to have been coached, exhibiting a “predisposition to recollect facts that support the defense’s theory ... while denying recollection of other key or contradictory evidence.” Ouch!

All this leads to several, obligatory followup questions: Will the state bar sanction Baker and Sanders for causing their witnesses to be coached in this fashion? And what if any sanction will they receive from their employer, the elected County Attorney?

What about Deputy Foose, who allegedly embellished his testimony after meeting with Commander Rodriquez? One wonders what if any disciplinary action was taken against him after the district court found his testimony unreliable? Is this fellow still testifying in court on behalf of the department?

For that matter, what about Commander Albert Rodriguez, who runs the friggin' DPS Training Academy? It was Rodriguez who actually did the alleged "coaching" of witnesses, after all.

Given the circumstances, it's unclear whether or how Commander Rodriguez might ever be held accountable. He's still testifying as an expert witness in other cases around the state though he played a central role in the actions for which these attorneys were sanctioned. Presumably he was off the clock when this happened, so he'll face no discipline on the job. Even if he did improperly coach witnesses, he walks away from the whole thing relatively unscathed.

Perhaps it's a bit snarky to say so, but one hopes this episode doesn't reflect what the DPS Training Academy teaches rookie troopers these days about testifying in court.

Meanwhile, the folks over at TDCAA are particularly happy that ADA Scott Durfee was cleared of wrongdoing. The appellate court notes that Durfee was himself only informed of Rosenthal's notorious email deletions at the end of the day before the Thanksgiving break, ordered a subordinate in IT to work over the holiday to retrieve the deleted emails, then informed opposing counsel on the next business day when the IT person couldn't find them. The Fifth Circuit placed blame for this episode entirely on Rosenthal and said Durfee did not improperly delay revealing his boss' misconduct. That seems like a reasonable conclusion, distinguishing outright misconduct from happenstance or error.

So it sounds like the Fifth Circuit got it right on Durfee's case, but I remain dissatisfied by the ambiguous resolution to the whole witness coaching episode.

ACLU: Pregnant probationers can't be singled out

Lawrence Gist has a notable piece on a friend of the court brief submitted to the Texas Court of Criminal Appeals by the ACLU regarding whether pregnant probationers whose urinalysis tests positive for drug use can be singled out for harsher punishment because of their medical condition:

The American Civil Liberties Union and the ACLU of Texas today filed a friend-of-the-court brief in a case involving the unfair incarceration of a pregnant woman who violated her probation. The ACLU asked the Texas Court of Criminal Appeals to affirm a lower court ruling that probation officers treated the woman, Amber Lovill, differently from others who violated probation but were not pregnant.

"Our criminal justice system cannot treat pregnant women more harshly than other people convicted of similar crimes simply because they are pregnant," said Diana Kasdan, a staff attorney with the ACLU Reproductive Freedom Project. "The lower court correctly concluded that the state's extreme treatment of Ms. Lovill constituted sex discrimination and was based on stereotypes of pregnant women."

In 2005, Ms. Lovill pled guilty to the crime of felony forgery and received a sentence of two years in a state jail, which the court suspended pending completion of three years in community supervision. In July 2007, during a routine report to her probation officer, Ms. Lovill took a required drug test and also informed the officer that she was pregnant. After she tested positive for drug use, the state moved to revoke her probation and incarcerated her for the duration of her pregnancy. According to the ACLU brief, at the revocation hearing, officers repeatedly admitted that if Ms. Lovill were not pregnant, less restrictive alternatives would have been the typical response to a positive drug screen.

"Not only was Ms. Lovill discriminated against because she was pregnant, but the state placed her in a facility that the government had already found unsanitary and unsafe, especially for pregnant women," said Lisa Graybill, Legal Director of the ACLU of Texas. "If the state had wanted to address Ms. Lovill's drug use, it could have enrolled her in a program that specializes in treating pregnant women. It deliberately chose a punitive and less effective alternative."

"Under the Texas Equal Rights Amendment, the state cannot justify subjecting pregnant women to more severe punishment and treating them differently from others based on gender stereotypes," said Ariela Migdal, staff attorney with the ACLU Women's Rights Project. "But that is precisely what the state did in this case and that is impermissible."

Here's a corresponding press release from the ACLU and a copy of the brief.

Corrections second behind Medicaid in sources of state budget growth

A new report (pdf) by the Vera Institute says 22 states have cut funding for corrections because of the current economic crisis. Here's the abstract:

States across the United States are facing the worst fiscal crisis in years. All but two states are dealing with budget deficits, and spending is being cut across the board. Second only to Medicaid, corrections has become the fastest growing general fund expenditure in the United States. Considered off limits for many years, corrections budgets are now subject to these same cuts. Based on a survey of enacted FY2010 state budgets and other recent sentencing and corrections legislation, this new report from Vera’s Center on Sentencing and Corrections found that at least 22 states have reversed the trend of recent decades and cut funding for corrections. This report examines the form of these cuts, including reductions in operational costs, reforms in release policy, and strategies for reducing recidivism, and it highlights some of the innovations that states are pursuing for long-term savings while also maintaining public safety.

The paper's introduction continues in this vein, predicting the need to find savings in corrections budgets won't just be a short-term issue:

Given that current state budget deficits are expected to continue and possibly increase over the coming years, states will need to continue to find ways to control corrections costs. Each year, the decisions will become more difficult. Management strategies may extend operating efficiencies, but the resulting cost savings are likely to fall short of what states will need to make ends meet. When deeper cuts are required, states will have to shift expenditures from costly prisons to far more economical investments in community corrections and confront controversial questions about which people really need to go to prison and how long they should stay. State governments are beginning to rise to the challenge of cutting corrections costs while maintaining or even boosting public safety. This paper highlights some of the innovative and creative ways they are doing so.

See the full report (pdf).

Bexar DA stepping into probation department urinalysis fiasco

I've been critical of Bexar County DA Susan Reed in the past, so I've got to give the devil her due. ;) According to Greg Harman writing the San Antonio Current

the DA’s office has stopped prosecuting probationers solely on the results of an initial dirty urinalysis. [ADA Cliff] Herberg said too many questions have been raised about Treatment Associates’ testing to trust the results. The District Attorney’s office is now investigating complaints that Treatment Associates employees accepted bribes for clean test results.

“We do not want somebody being arrested in a system we don’t have confidence in,” he said.

Good for the District Attorney, that was the right move. I'm quite relieved to learn Reed stopped prosecuting based solely on unconfirmed probationer UAs after the false positive problem emerged last year. The probation department and private contractor both refused to pay for more accurate, confirming tests, so IMO that was an appropriate and wise (if unpublicized) response.

And I'm doubly glad somebody in Bexar County officialdom is taking seriously allegations of bribe taking by employees of the urinalysis vendor - I was beginning to think everybody in SA just had bribery fatigue and nobody really gave a damn anymore.

In addition to investigating bribery allegations, the DA should investigate whether anybody over at the probation department knew about these alleged criminal activities who would have had an affirmative duty to report the crime because of their position as an officer of the court. It looks from the outside like there was a coverup, that officials in the probation department and/or other agents of the court likely knew about the alleged bribetaking and knowingly decided overlook it. If so, that falls squarely in the DA's purview, and it surely must be clear by now the Bexar probation department can not be relied upon to investigate itself.

The Current also renewed and updated allegations of union-busting by top management in the Bexar probation department:

it appears union-busting topped the to-do list for Chief Probation Officer Bill Fitzgerald and Director of Operations Kathy Cline.

According to former Bexar County probation IT Director Natalie Bynum, Cline kept a list of known and suspected union members she wanted out of the department. To weed them out and quash the union, she had Bynum meet her repeatedly during and after work to comb through employee email accounts.

“She wanted their computers monitored in order to find out if they were doing any union activities while on the job, also to see what was going on with the union,” said Bynum, who now lives in Arizona and spoke with the Current by phone. “We’d go to the bar and then we’d go back to work afterwards. It would be just us in the office, often-time.”

Bynum, a close confidant of Cline’s during her tenure, says she was motivated by curiosity since she was “not allowed” to speak with known members of the Central Texas Association of Public Employees, a division of the United Steelworkers. Cline and Bynum’s alleged searches weren’t limited to the “five to 10” employees targeted by Cline, either. Bynum told the Current this week that Cline also regularly tapped into her boss’s account to see if Fitzgerald was talking about her.

Neither Cline nor Fitzgerald returned repeated calls for comment.

That's a fascinating and telling anecdote right there about departmental culture, with Fitzgerald's #2 allegedly checking into not only union members' email contents but also her boss'! Ouch! Do you suppose Cline and her boss have some trust issues? I guess after the last #2 (Paul Kosierowski, now a plaintiff in litigation against the department) was unceremoniously bounced out, nobody atop the agency trusts anybody anymore. That's a lot of internal office drama taking up agency leaders time and attention, diverting focus, for example, from implementing programs to reduce probation revocations.

Thanks to the helpful reader who emailed links to the Current piece and a couple of other news stories on the topic.

New Harris DWI 'diversion' plan causes more problems than it solves

Harris County DA Pat Lykos yesterday rolled out a highly punitive and possibly illegal "diversion" program for first-time DWI cases, leaving the Houston-area legal blogosphere abuzz. See the actual plan (pdf) and initial analysis from criminal defense attorneys Mark Bennett, Paul Kennedy and Murray Newman; here's the Houston Chronicle's coverage.

Bottom line, all first time DWI defendants will be offered two options: 30 days in jail or two-years on probation in a newly created (and poorly named) "diversion" program, after which charges will be dismissed. The legal bloggers out of Houston are covering this well, but let me just make a few observations:

We were earlier told part of the purpose for this plan was to reduce jail overcrowding, but this proposal will significantly increase it at a time when the Harris Jail is overflowing and the Sheriff can't adequately staff the jail for the population they've got. How about a little acknowledgment of reality in these decisions?

This is deferred adjudication by another name and it's not allowed in Texas for DWI. I predict the appellate courts will end up overturning the arrangement the first time they try to violate somebody (who can afford a good lawyer) under one of these agreements.

Relatedly, is this a model that's been tried elsewhere or is the DA's office just pulling this out of its collective bureaucratic behind?

Thirty days in jail means somebody probably loses their job, if they have one. That's bad for the economy and public safety. Why not use intermediate sanctions for probation violations instead of needlessly filling up the jail with nonviolent offenders?

The stated conditions of probation are too onerous to induce plea bargainers to choose that option. They include a 10 p.m. weekend curfew, no alcohol at all (not just no driving), no going into places that serve alcohol, paying for an ignition interlock, counseling and regular urinalysis, needing prior permission to travel beyond contiguous counties, and allowing their P.O. and police officers into their home whenever they want, among quite a few others. For myself, faced with that choice, I'd just take the 30 days.

Lykos wants to require ignition interlocks from everyone (paid for by the defendant) but those are expensive and not really cost effective for first-time offenders. Murray Newman rightly asks, "Have you thought about the effect of indigency on your Pre-Trial Diversion customers? What if somebody can't afford the Interlock Device, or they don't have a car at all? Do they get their Diversion yanked?" I'm a strong supporter of requiring ignition interlocks for repeat offenders, but on the first offense it doesn't pass the cost-benefit test.

Finally, it's going to be a concern for some that, according to the Chronicle, "If they successfully complete the probation, [offenders'] records will not show a conviction for driving while intoxicated." But will the MADD folks be satisfied if somebody gets a second DWI three years hence but the sentence can't be enhanced because they were never "convicted"? Most first-time DWI offenders never commit a second offense, but if they ever do at least the first conviction is still on the books. Not under Lykos' new policy, though.

This seems like poorly conceived proposal that needs some more time back at the drawing board, but the DA plans to roll out its new plea policy on August 1.

MORE: See a discussion of the Harris DWI diversion plan on the user forum at the District and County Attorneys Association.

Texas shortchanged on COPS grant funding

Since Governor Perry has been disdainful of federal stimulus funds, one supposes he won't be too unhappy that Texas got stiffed on the Department of Justice's COPS hiring grants for new police officers. Though Texas makes up 7.87% of the population nationally, we received just 3.89% of total COPS grants representing 4.17% of all the officers awarded, according to this state-level fact sheet (pdf) from DOJ about the grants announced yesterday. See information on other states here.

I've got mixed feelings that this straight-up pork-barrel funding wasn't doled out somewhat closer to Texas' percentage of the population. Granted, I'm not a big fan of this program and don't think it's necessarily wise for cities to take the money, but when our tax dollars head off to Washington I'd generally prefer they come back downstream at least somewhat proportionally.

All told, Texas cities got 196 new officers out of 2,798 requested around the state, most of them (131) in three large cities: San Antonio and Dallas received grants for 50 officers apiece, with Arlington receiving 31. The only other large city to receive money was El Paso which got two (though the El Paso Sheriff's request for deputies was denied). Houston PD asked for 240 officers but they and the Harris County Sheriff were both notably snubbed, as were some other large departments around the country. The rest of Texas' COPS grants went to smaller jurisdictions, with the most officers among smaller towns going to Galveston PD and the Galveston County Sheriff, one assumes to make up for shortfalls in the wake of Hurricane Ike.

Looking at the applicant rankings by state on the DOJ website, we find a list of other Texas departments that applied but I haven't seen information about how many officers each of them asked for. Other Texas departments that applied for grants but received no new officers were Austin PD, the Travis County Sheriff, and police departments in Tyler, Abilene, Laredo, Del Rio, Bryan, Odessa, Killeen, Temple, Amarillo, Irving, Waco, Plano, Denton, Nacogdoches, and quite a few other smaller departments.

Here's some of the initial MSM coverage:

• Feds hand SA cash to hire 50 more cops, SA Express News
• Feds give Arlington millions to pay for officers, Fort Worth Star Telegram
• HPD staffing issue arises as aid denied, Houston Chronicle
• Federal stimulus to provide $9 million to fund 50 Dallas police officers, FrontBurner

RELATED: Do COPS hiring grants make sense in a lousy economy?

Neuroscience and the law, now and going forward

Via The Situationist, check out this excellent 10-minute interview with Stanford law prof Hank Greely regarding an issue that's increasingly interested me as a result working as Policy Director for the Innocence Project of Texas: The intersection between law and modern neuroscience.


This is one of the best, brief discussions I've heard of the current status on how modern neuroscience is being used in modern criminal and civil courtrooms and what may be possible in the future.

Greely calls "reckless at this point" (at least) two companies which are already out selling "lie detection" services as potetial expert witnesses using fmri's. But the evidence, he says, at this point does not justify anyone buying such services or admitting it in court.

Along with "pain detection" and "bias detection," however, lie detection is an area where current research is fervently looking for practical applications in the courtroom. Modern neuroscience might also change how courts view insanity defenses, said Greely, though he emphasized that available technology and science doesn't yet necessarily disturb these issues.

If the science is ever perfected, which he emphasizes is a big "if," Greely predicts many other bothersome but interesting Fourth and Fifth Amendment questions facing the courts as a result of evolving neuroscience technology. Good stuff - worth a listen.

MORE: See more on the subject from Baylor Law School's program on Neuroscience and the Law.

Are false confessions 'coerced' or persuaded?

A segment titled "Could Someone Make You Confess to a Crime You Didn't Commit?" by reporter Erin Moriarty on CBS News' 48-Hours Mystery last night featured two prominent Austin cases among other examples of false confessions, noting that "One quarter of those exonerated by DNA test results actually confessed to the crime of which they were convicted." The piece ended promising additional, future coverage to answer a "question for all of us to consider anew: Are we much more vulnerable to coercion than any of us believe?"

Considering this phrase "coercion," I was reminded of a recent post from Mind Hacks on "Hypnosis and criminal mind control in 1890s France" that said while research has proven hypnosis cannot coerce an unwilling person to commit a crime, a fervent belief in hypnosis is a not-uncommon claim among psychotics and "even today and your average inpatient psychiatric ward may well contain a patient or two who believe they are being 'controlled' or 'mesmerised' by hypnosis."

According to Mind Hacks, "The 19th century French neurologist Georges Gilles de la Tourette is best known for Tourette's Syndrome," but he also performed research on hypnosis and criminal behavior and was even "shot in the head by a delusional patient who believed that she had been hypnotised against her will."

I think the lesson from modern false confessions and Tourette's example from Mind Hacks may be not that we're vulnerable to "coercion" so much as that people sometimes accede to their own delusions, weakness or misconceptions when the right (or rather, wrong) psychological buttons are pushed. In most false confession cases I'm aware of, police don't typically "coerce" a false confession - at least not using overt intimidation or "third degree" torture tactics as was common in Tourette's time - but instead in the modern era use well-refined, intense and manipulative persuasion tactics that are often effective but heighten the risk of false confessions.

That's particularly true among youth, the mentally ill and other vulnerable groups, but depending on the circumstances, as Moriarty notes, false confessions can even happen with average adults. (More than 50 people falsely confessed to Austin's Yogurt Shop murders, for example, not including confessions by the current defendants.) Police interrogation tactics are designed to push precisely those psychological buttons, which is all well and good when they're interrogating the right person but sometimes can lead to false confessions when they've got the wrong one.

Tracking evidence-based probation practices in Travis County

Over the weekend I ran across this fine piece of journalism from the May/June issue of the Texas Association of Counties County magazine describing the details of Travis County's efforts to implement "evidence based" practices at its probation department. The county saw reductions in recidivism, probation revocations and incarceration costs for both state prisoners and the county jail. The National Institute of Corrections republished the story on their website, pairing it with an array of related documents about stronger probation systems. Here's a notable excerpt from the County magazine story:

The experiment achieved positive results: because of its four-year effort, the county’s overall one-year recidivism rates dropped from 29 to 24 percent.

More recidivism-related outcomes:

• Pre-experiment, 26 percent of low-risk offenders were re-arrested within one year; post-experiment, only 6 percent were re-arrested after one year. That is a 77 percent drop in low-risk offender recidivism.
• Pre-experiment, 26 percent of those offenders were re-arrested within one year; post-experiment, only 13 percent were re-arrested within one year of their original offense. That is a 50 percent drop in medium-risk offender recidivism.
• Pre-experiment, 34 percent of those offenders were re-arrested within one year; post-experiment, only 31 percent were re-arrested within one year. That is a 9 percent drop in high-risk offender recidivism.

Tony Fabelo, a criminal justice expert who worked closely with the department throughout the transition, said those numbers are significant at all levels.

“The biggest decline has been for the low and medium risk (offenders), which makes sense. The high-risk people are high risk.

They are very difficult to work with,” he said, adding that having fewer low- and medium-risk offenders on caseloads results in having more available resources geared toward offenders most likely to endanger public safety.

Recidivism wasn’t the only area in which the department saw beneficial results. The changes also resulted in the department reducing its overall felony revocations by almost 20 percent. Technical violations were reduced by 48 percent. According to the numbers:

• Pre-experiment, in 2005, the county had 1,052 felony revocations; post-experiment, in 2008, the county had 846 felony revocations.
• In 2005, the probation department filed 608 technical revocations; in 2008, that number dropped to just 318.
• Only 3.4 percent of its felony offenders had their probation revoked in 2008 because of a technical violation, compared to 5.9 percent in 2005.

Based on all those figures, the Legislative Budget Board concluded that Travis County potentially saved the state $4,881,881 over the course of three years, just by avoiding those 290 technical revocations. According to state data, about 67 percent of those technical revocations would have lead to the person being sent to prison for an average of 16 months. Another 29 percent of revocations would have lead to an average of 10 months in a state jail.

The other 4 percent would have spent time in the Travis County Jail. Nagy estimates that the county saved approximately $386,736 in 2008 in jail housing costs. The county calculated that savings by comparing the amount of time probationers spent in jail pre-experiment and post-experiment. That time decreased from a total of 111,339 days in jail in 2007 to 95,225 days in 2008, a 14.5 percent drop.

The experiment was carefully documented throughout its duration, which resulted in a series of reports that can be found on the Travis County Adult Probation Web site.

Stephen Colbert on Tazing Great Grandma

Stephen Colbert last night had an hilarious segment on the Travis County Deputy Constable who tazed a 72-year old great grandmother at a traffic stop. The whole piece is funny but the schtick about the Austin great grandmother kicks in about at about 2.5 minutes:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Current Events - Tasers
www.colbertnation.com
Colbert Report Full Episodes Political Humor Mark Sanford

From Time Out to Hard Time: Young Children in the Adult Criminal Justice System

The headline of this post is the title of a new study (pdf) by Michele Deitch and some of her students at the UT-Austin LBJ School about very young offenders (<13) published an editorial riffing off themes from the report. Here's how the op-ed opens:

The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty. Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.

The states have followed this logic in death penalty cases. But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.

Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year. To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system. These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.

The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.

This is terrible public policy. Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system.

Good job, to Michele and her collaborators. I'll look forward to reading the report.

UPDATE: I just received this email from Michele announcing publication of the study and giving some additional highlights:

Dear Friends and Colleagues,

I write to let you know about a new report entitled “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” released today by the LBJ School of Public Affairs at the University of Texas. The report provides the first-ever comprehensive look at how the nation treats pre-adolescent children (primarily those age 12 and under) who commit serious crimes. The report analyzes the available data with regard to the transfer of young children to adult criminal court, documents the extremely harsh and tragic consequences that follow when young children go into the adult criminal justice system, profiles practices in states with particularly severe outcomes for these young children, looks at international practices, and offers policy recommendations.

The report, which I co-authored with three of my students, finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as 7 can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences, and placement in adult prisons.

This issue, of course, has gained national attention recently with the cases of the 8-year old in Arizona and the 11-year old in Pennsylvania, both charged with murder, and in the case of Christopher Pittman, who was unsuccessful in his efforts last year to get the United States Supreme Court to hear his challenge to his mandatory sentence of 30-years without possibility of parole for the killing of his grandparents when he was 12 years old.

The report shows that the practice of trying young children in adult court contradicts the consensus of the most up-to-date scientific research, and details the many ways in which the adult criminal justice system is a poor and dangerous fit for these young children.

Other key findings include:

· Every year, nearly 80 children age 13 and younger are judicially transferred to adult court. Between 1985 and 2004, 703 children age 12 and under, and 961 children age 13 were judicially transferred to adult court. The total number of young children in adult criminal court actually is much higher than this, as the data does not include the number of children sent to the adult system through automatic transfer laws or laws allowing prosecutors to file cases directly in adult court.

· Many of these young children are being treated as adults for relatively minor offenses. There are almost as many youth treated as adults for property crimes as for crimes against persons. Determinations about when and whether a young child will be treated as an adult are marked by extreme arbitrariness, unpredictability and racial disparities.

· Four states—Florida, Michigan, Pennsylvania, and South Carolina—stand out as providing the worst possible outcomes for pre-adolescent offenders, given the combination of transfer policies and adult sentencing laws and practices in those states.

· On a single day in 2008, 7,703 children under age 18 were held in adult local jails and 3,650 in adult state prisons. In these adult facilities, the youth face vastly higher risks of physical and sexual assault and suicide than they would face in juvenile facilities. The youngest children are at particular risk.

· The United States is severely out of step with international law and practice. Most countries—including those Western nations most similar to the United States, countries in the developing world, Islamic nations, and even countries often considered to be human rights violators—repudiate the practice of trying young children as adults and giving them long sentences.

The report calls on national and state policymakers to keep young children in the juvenile justice system, to disallow mandatory sentencing of young children in adult court, and to always provide parole opportunities for young children transferred to adult court. We also urge that young children in the adult criminal justice system be housed in juvenile facilities, both while awaiting trial and after conviction. ...

I hope this report will be helpful to you in your work, and I would be grateful if you could help disseminate it widely to your contacts in the field. Thanks are to due to so many of you who were incredible resources to us throughout our research for this report.

All the best,

Michele

New public defender responsible for Texas capital writs

Though this blog doesn't focus much on death penalty issues, arguably the most significant achievement in the 81st Texas Legislature regarding indigent defense was the creation of a new Office of Capital Writs, described thusly in the Houston Chronicle by Lise Olsen ("State to handle capital appeals," July 27):

Texas, which executes more convicts than any other state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.

“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office. It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lacks a public defender to oversee key death row appeals known as state writs of habeas corpus.

The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently.

“Better late than never,” said Juan Castillo, one of four death row inmates whose state appeals were never filed by the San Antonio attorney assigned to represent them. “This is a start. There's a lot of cases” that have been screwed up. ...

The Houston Chronicle reported earlier this year that three attorneys had repeatedly blown state or federal appellate deadlines for their death row clients, effectively surrendering their clients' rights to appeal. The Court of Criminal Appeals recently found two attorneys in contempt of court for their shoddy work, including Castillo's lawyer, Suzanne Kramer, and referred them to the State Bar of Texas for possible disciplinary action.

Anything that adds some professionalism and accountability into Texas' capital appeals process, I'm all for. Having a dedicated set of appellate attorneys might even help the process move along a bit faster, avoiding situations where defendants spend decades on death row.

Ellis is right that our system has become an "international embarrassment," and it'll take more than platitudes and good intentions to restore some credibility to the system. This is a positive development, as was the creation of a trial-level capital public defender for West Texas counties last year. Inch by inch, Texas is taking the first steps toward actually improving its capital appeals system instead of just butting heads with SCOTUS over it.

RELATED: Defending the Damned on the Cheap.

Do COPS hiring grants make sense in a lousy economy?

According to The Crime Report, the Obama Administration is just about ready to roll out its 21st Century version of Bill Clinton's COPS program, where the feds subsidize local law enforcement payrolls in order to hire more officers, with local taxpayers picking up the tab after three years:

The Justice Department expects to announce within two weeks grants to hire about 5,000 local police officers nationwide under a $1 billion program in the new federal economic stimulus law, says Dave Buchanan, acting director of the federal COPS Office. Buchanan told criminal justice organizations at a meeting Friday in Washington, D.C., that the grants amount to only a small fraction of the $8.3 billion requested by law enforcement agencies nationwide. The Obama administration has pledged to seek funds for 50,000 officers.

Congress required that half of the new officers be in jurisdictions with under 150,000 population. In judging the requests, COPS officials looked at local economic conditions, crime rates, and applicants’ record in community policing, among other factors. To make sure that large departments didn’t get a disproportionate share of officers, no agency will be funded for more than 50 officers or more than 5 percent of the total, Buchanan said.

I wonder, though, if the COPS program makes as much sense in the current economic climate compared to when Bill Clinton backed the same idea in the 1990s?

Back then property values and local budgets were booming ever upward, but today many jurisdictions face a budget crisis that economists predict could stretch on for the next several years. So in the 1990s, it was easy for cities to project that, even if they couldn't afford more officers today, they could reasonably predict they'd have more revenue in a few years time. In the current economic climate, though, where future revenue in many jurisdictions is projected to decline, it could be problematic that, as a requirement of receiving the money, "At the conclusion of federal funding, grantees must retain all sworn officer positions awarded under the ... grant."

Using federal money to hire local officers is somewhat of a shift in priorities for the COPS program, which during the Bush era evolved away from direct hiring grants because conservatives viewed it as a violation of federalist principles. Instead, according to a recent program evaluation (pdf) by the US Office of Inspector General, "the focus of COPS grants in recent years shifted from increasing community policing personnel to meeting law enforcement agencies’ equipment needs and funding methamphetamine initiatives."

What's more, says OIG, it's an open question whether DOJ has remotely enough capacity to meet "the challenge of effectively monitoring thousands of new grants collectively worth billions of dollars with a limited staff" of just four people assigned to grant oversight. That's a troublesome shortcoming at a time when DOJ is expanding the number of COPS grants issued by orders of magnitude.

Compared with the Clinton years, I suspect jurisdictions are being much more careful about taking on long-run obligations in exchange for free money today, or at least they should be. That was Governor Rick Perry's reasoning for rejecting federal stimulus money for unemployment payments - he didn't want Texas to be on the hook for expanded eligibility after the federal money ran out - and the exact same analysis applies to hiring more police officers.

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

BLOGVERSATION: From the LewRockwell.com Blog, "More federal police state stimulus," and from Drug War Rant, "Toward a National Police Force."

California must reduce inmate numbers to achieve budget savings

Proposals to cut prison costs in the face of a massive budget crisis generated blowback for California Gov. Arnold Schwarzenegger last week after he suggested releasing some inmates from the state's bloated lockups to save money and comply with federal court mandates.

So what was the solution? Cut the corrections budget total by $1.2 billion overall and put off decisions where to cut until lawmakers leave town.

Nobody without a crystal ball can know exactly how those $1.2 billion in cuts will be realized, but a glimpse at current official thinking may be had by reading a column on California's Flash Report by the Secretary of California's Department of Corrections and Rehabilitation, Matthew Cate. He believes his agency can "achieve our budget cut targets without the early release that the public has feared," suggesting a slew of proposals aimed at reducing inmate populations in the near term. According to Cate, these are the main suggestions for reducing prison costs being kicked around out west:

• Prioritizing resources to ensure that we can house serious, violent, and sex offenders and better supervise them on parole: We’re seeking to reduce our prison population by 5,300 over the next year by cutting down on the 70,000+ parole violators who cycle in and out of prison for technical and other violations. This will also allow us to focus resources on higher risk offenders and reduce parole agents’ caseloads for better supervision.
• Providing alternatives to prison for lower-level offenders who do not pose a serious risk: We intend to use technology to provide alternative custody options for low-risk offenders with less than 12 months to serve, as well as the elderly and infirmed, to reduce the prison population by 6,300. Rather than clogging up $48,000 per year prison beds, or $100,000+ prison treatment slots, these offenders would be placed on house arrest, or in a medical or treatment facility, and monitored by GPS. As an added benefit, the Feds through Medicare can help share the cost of their treatment if they’re outside the bricks and mortar walls of a prison.
• Adjusting property crime thresholds: We expect to have 5,600 fewer lower level property criminals in state prison for things like writing bad checks, petty theft with a prior, grand theft, and vehicle theft, by raising felony thresholds. These criminals won’t escape punishment, they just won’t be serving their sentence in extremely expensive state prison beds for property crimes where the dollar value stolen is less than $2,500.
• Shifting the burden of criminal alien felons onto federal authorities where it belongs: There are 19,000 criminal alien felons in California prisons, and we receive about 11 cents on the dollar for their custody and care. The Governor is going to review their files, starting with low-level non-serious, violent, or sex offenders, to determine which sentences can be commuted and turned over to the federal government for incarceration or deportation.
  
• Encouraging positive behavior through credit enhancements: Inmates who participate in and complete proven rehabilitation programs such as GED, college degrees, and vocational training, will be able to earn weeks or months off of their sentence, rewarding good behavior that will reduce recidivism. This is estimated to reduce the prison population by 1,600.
• Achieving operational savings to reduce costs and increase efficiencies: CDCR is streamlining, consolidating, and eliminating positions at headquarters, the division of juvenile justice, and in the field, to increase efficiency and reduce costs. This will be done in conjunction with the population reduction reforms in a way that will not only save money, but will also allow us to continue to carry out our core functions.

The political dynamic in California strikes me as very similar to that we've seen in Texas legislative debates over rising prison costs: Politicians see releasing current inmates as a political nonstarter, but find it more palatable to suggest reducing the number of new entrants to prison going forward.

Texas pursued some of these same strategies in recent years to reduce its prison growth rate, a result achieved primarily by reducing the number of probation revocations. That was done through greater use of "progressive sanctions" and intermediate penalties for those who violate terms of supervision instead of sending them straight to prison. Secretary Cate's proposal would apply that tactic to both probation parole. Key to making it work, though, to judge by Texas' experience, will be boosting supervision resources, either by spending more money to supervise offenders in the community or reducing the length of supervision so officers are watching fewer people. That tactic will surely save money compared to sending the same folks to prison, but as a practical matter it will require additional investments to strengthen community supervision.

Adjusting the property crime thresholds is a strategy Texas has not yet pursued but which is probably justified here as much as in the Golden State. In Texas, theft reaches felony thresholds when "the value of the property stolen is $1,500 or more but less than $20,000," so the same tactic could be applied here and would also reduce the number of new prison entrants. The $1,500 level was set in 1993 when the "state jail felony" category was created (essentially a fourth degree felony), and it's never been adjusted for inflation.

Supposed savings from reducing incarceration of illegal immigrants will likely prove ephemeral - they aren't that great a proportion of people who commit crimes and it makes little sense just to deport criminals who can fairly easily make their way back into the country. What I find most interesting though is the statement that the Governor will look to "commute" some sentences in order to facilitate quicker deportation. Modern governors are especially stingy with such commutation power and it'd be remarkable if the Governator decides to use his on such a large scale.

The suggestion that California will "Encourage positive behavior through credit enhancements," of course, is a proposal to release well-behaved inmates sooner, which belies the claim the state will avoid "early release" of current prisoners. It's ironic to me to see Cate using the bureaucratic euphemism "enhancement," which usually means increasing criminal penalties, to support shortening prison sentences. While it may seem a bit disingenuous, it's interesting to note the language Cate uses to frame the discussion.

The last bullet is simply an homage to ideological critiques of "government waste," but I seriously doubt much actual savings can be realized merely by increasing government "efficiency." Politicians have been hammering that theme for three decades and, for the most part, any alleged waste or inefficiency has been long ago eliminated. The main corrections costs don't stem from bureaucracy but from prisons' primary function. The only way to reduce incarceration costs, in the end, will be to reduce the number of people the state incarcerates. Everything else is window dressing.

Via California Corrections Crisis.

Madden to chair crimjust committee for National Conference of State Legislatures

This is a well-deserved honor, IMO, and puts state Rep. Jerry Madden, a prominent, mainstream Texas criminal justice reformer, in a nationally prominent spot where he both promote the approaches used in Texas more widely and learn more about what's being done in other states. From the Plano Star-Courier (July 26):

Speaker of the Texas House Joe Straus recently announced that the president of the National Conference of State Legislatures has invited Representative Jerry Madden (R-Plano) to be the chairman of the Law and Criminal Justice Committee in the conference year ahead.

Madden served the past year on the LCJC as vice chairman, and said his new position will allow him to have more coordination with the staff and be more involved in national meetings.

“This is a great honor,” Madden said. “I’m very pleased to accept.”

Madden said the national committee allows him to keep tabs on programs implemented in other states that benefit their prisons and take those ideas to benefit the Texas prison system.

Congrats Rep. Madden on the well-deserved recognition.

Should officers who use drugs, lie to investigators, remain on police force?

This is not a Texas case but the difficulties faced by the Boston PD in disciplining bad cops come up again and again in the Lone Star State, particularly in agencies whose employment policies are governed by Texas' civil service code. Here are the opening lines to a Boston Globe editorial about the local PD's weak response to an egregious corruption case ("Too easy on rogue cops," July 9):

BOSTON POLICE Commissioner Edward Davis sent a weak message on police misconduct last week -- all the more so because it was timed to generate minimal publicity. The disciplining of officers in a steroid-use scandal deserves greater scrutiny, especially given the city's recurring problems with rogue officers.

Davis parceled out punishments ranging from written reprimands to a 45-day unpaid suspension to 11 officers who were involved in steroid use or had frequented an afterhours club in Hyde Park where drugs, alcohol, and prostitutes were present. The punishments are a byproduct of a federal investigation in 2006 that culminated in the arrest and lengthy imprisonment of three former Boston Police officers for protecting a large shipment of cocaine arranged by federal agents posing as drug dealers. The head of that protection racket, former officer Roberto Pulido, was a steroid user who also guarded parties at the after-hours club frequented by police.

Davis acknowledges that termination, not suspensions, would have been a more "appropriate punishment" for some of the officers who not only used illegal drugs but also lied about such use to the department's anti-corruption investigators. But like his predecessors, Davis says he is handcuffed by an aggressive union, contractual language that metes out light punishment for first-time drug violations, and labor arbitrators who overturn long suspensions and terminations.

Going forward, officers who used drugs and lied to anti-corruption investigators are worthless to the department: Even if they continue to perform police work, they can never be called to testify in court because they'd be easily discredited. If they'd lie to official investigators, who doesn't believe they'd lie to a jury?

Cops deserve due process rights just like everybody else, but the public also needs to be protected from corrupt law enforcement. When a department determines officers lied to investigators and participated in illegal drug markets, it's a grave disservice to the public to keep them on the force just because management fears the union's political clout.

Falsifying jail records punished inconsistently by Nueces Sherff

Not every case of falsifying government documents is created equal, apparently. According to an investigation by the Corpus Christi Caller Times ("Sheriff's deputies disciplined," July 26):

Four guards were discovered to have falsified logs at the Nueces County Jail on Sept. 2 of last year. They were reprimanded. Two guards accused of the same offense in a different incident five days earlier were fired.

Only two of six guards who allegedly falsified jail logs were fired and prosecuted. For the others, though, "Letters of reprimand, the punishment meted out to the four deputies in the Sept. 2, 2008, incident, is among the mildest of disciplinary measures for jail guards."

This case shows why departments need a uniform disciplinary matrix to mete out punishments in a more predictable fashion instead of according to the whim of the Sheriff or supervisors. Why should four officers receive only a letter of reprimand while others who did the same thing are fired and prosecuted? Seems like the backstory behind those decisions might be worthy of further investigation by the Caller-Times. I'm not sure anybody caught falsifying jail records should be employed as a peace officer.

Stronger probation praised in drug court setting

An item in yesterday's SA Express News featured coverage of the most recent graduating class in a San Antonio drug court ("Drug court participants celebrate new sobriety," July 25):

Drug courts — intensive probation programs that focus on nonviolent offenders with addiction problems — have been in existence around the country for two decades and in Bexar County since 2001, said County Court-at-Law No. 1 Judge Al Alonso. In that time, he said, the programs have proved to be more effective than any other way of dealing with offenders.

“It changes lives, saves money and reduces crime,” he said. “We've got to get off the mindset that we can punish someone out of their addiction.”

I find it remarkable that drug court programs have taken off so quickly in the past few years and been embraced so enthusiastically by judges and prosecutors. What's more, the "stronger probation" techniques used to manage drug court offenders offer an important model for successfully managing other types offenders in the community.

Many parts of the drug court approach (e.g., using progressive sanctions for violators instead of automatically revoking them to prison) are replicable in more traditional courts or can be applied to other common subsets of defendants with specialized needs. For example, in El Paso County, CO (Colorado Springs) they've established a specialty court to provide stronger probation for returning veterans who run afoul of the law, recognizing that these defendants face particularized circumstances that weren't being addressed by the court system.

At the end of the day, such tailored approaches improve public safety by focusing on helping offenders succeed on probation instead of encouraging them to fail. True, many defendants assigned to such specialty courts don't make it; but for those who do drug courts reduce costs for taxpayers and increase the likelihood they won't commit more crimes in the future.

UA lab workers in Bexar allegedly took bribes but no one reported crimes

Apparently the private lab providing urinalysis services to the Bexar probation department has more problems than just a shocking number of false positives; a couple of lab workers have been accused of taking bribes in exchange for false negatives, but nobody thought to inform police or prosecutors about the corruption and fraud. Reports the SA Express News ("Alleged bribery never probed," July 26):

Two technicians at a local urinalysis lab were terminated earlier this year after being accused of taking bribes from Bexar County probationers in exchange for clean drug tests, officials confirmed.

But police, prosecutors and judges were not notified of either the terminations or the allegations, which came on the heels of other controversies involving Victoria-based Treatment Associates, a urine-testing facility used by the Bexar County Community Supervision and Corrections Department.

Sheri Simonelli, president of the Central Texas Association of Public Employees, the probation officers' union, said two female lab technicians were accused in November of trading clean urine tests for $20 each. The technicians, who were not identified, were fired four months later.

Simonelli said probation officers have complained that Chief Probation Officer Bill Fitzgerald and his deputy, Kathleen Cline, didn't inform law enforcement authorities of the allegations.

“There was enough evidence to prosecute,” said Simonelli, who has a wrongful termination lawsuit pending against Fitzgerald and Cline.

Simonelli was terminated last year, shortly after she publicly accused Fitzgerald of not addressing probation officers' concerns about faulty drug tests. Former deputy probation chief Paul Kosierowski last week filed a wrongful termination suit alleging, among other things, that he, too, was terminated for speaking out about the drug tests.

Between the false positives and allegedly corrupt lab workers, it's hard to understand why the Bexar Probation department hasn't terminated this contract many months ago, much less why they wouldn't report bribery allegations to the authorities.

What's more, this isn't the first time officials discovered alleged corruption at the same urinalysis firm: "In 2004, the Federal Bureau of Investigation investigated claims that a Treatment Associates lab technician gave clean urine tests to federal probationers in exchange for sex. Adrian Barrientos was convicted and sentenced the next year."

Apparently district judges in Bexar see nothing wrong with the probation department tolerating corruption among its vendors. District Judge Raymond Angelini told the paper “It wasn't up to [Bill Fitzgerald] to investigate” because “Treatment Associates was responsible for investigating its own employees.”

I don't buy that for a second, though! Who believes that if the probation department discovers that its vendor is engaging in bribe-taking and fraud, they have no obligation to report the crime? Next they'll tell us law enforcement shouldn't pursue charges against Barrio Azteca members because it's up to the gang leader to alert authorities of any wrongdoing.

Perhaps understandably, since they were the ones being left in the dark, the local DA's office has been the source of the most vociferous criticisms over this fiasco:

Because of Treatment Associates' troubled history, the union, some local judges and prosecutors said Bexar County should cease its contract with the company.

“They need to get a different company or confirm the samples or do something to show testing is reliable,” said First Assistant District Attorney Cliff Herberg.

The District Attorney's Office last year adopted a policy that prohibits prosecutors from filing motions to revoke probation based solely on a single dirty urine test. Prosecutors now require a second test to confirm the results.

Probation officials and prosecutors have yet to agree on who should pay for the follow-up tests.

“Basically,” Herberg said, “there hasn't been anything done by the probation department to alleviate the lack of trust in the testing system.”

Finally, arguably the most significant development mentioned in the story was Paul Kosierowski filing a wrongful termination lawsuit last week claiming he was fired for complaining about flaws in the urinalysis lab. Paul K was formerly the number two man under Bill Fitzgerald and was widely respected among his peers and others around the state in the probation profession. Lending his voice to substantive legal critiques of the director in court is an even more ominous development than the many other suits against the department.

A reader sent me a copy of Kosierowski's suit which I've yet to read, but when your former #2 decides to take you to court, there's clearly great cause for concern. Litigation by probation officers or the union is one thing, but Fitzgerald's former second in command is more likely to know details of top-level decisions and have a pretty good idea where most of the bodies are buried.

Note to readers from Bexar CSCD: I know these are emotional issues, but please refrain from name calling and ad hominem attacks, whether they're about co-workers or agency management. Try to discuss the issues, not personalities.

Dallas jail improved but still struggling

Kevin Krause at the Dallas News Crime Blog has a several informative blog posts (the first two based on internal, linked memos) that deserve attention from anyone watching the saga surrounding Dallas jail administration:

• Dallas County lawyers get majority of jail lawsuits thrown out
• Dallas County jail guards may have to stay on past their shifts
• Dallas County jail guard arrested for having sex with inmate
  

Can "czar" help Harris jail overcrowding?

In the wake of a harsh findings letter from the US Justice Department that could presage federal litigation, Harris County has created a jail "czar" position which will be held by former District Judge Caprice Cosper. But whatever she's able to accomplish won't stop the Harris Jail population from expanding in the near term, as evidenced by the county seeking more contract beds in Jefferson County (Beaumont).

From my perspective, the two biggest drivers at the Harris County Jail of both overcrowding and cost are excessive pretrial detention and the evolution of the jail into the county's main mental health treatment facility, both of which will require more than "coordination" by a "czar" to fix.

That said, the solutions, at least, are fairly clear: 1) Convincing judges to expand the use of personal bonds instead of requiring bail for low-level offenses, and 2) expanding outpatient mental health services, housing and specialized community supervision through the probation department (including making sure they take their meds) for mentally ill offenders, particularly those who are frequently in and out of the jail on low-level offenses.

The first is almost purely a political problem of convincing local elected judges to change their bail decisions; the second is mostly an issue of resources, with responsibility lying chiefly at the feet of the county commissioners court and the local MHMR authority to provide community-based alternatives to jail.

I've asked the Harris County Sheriff's PIO office for a copy of the consultant's study that recommended creating the "czar" position, so I'll have more on this subject after I finally review that document. The same consultant analyzed the Harris Jail four years ago and this Grits series adumbrated at that time many of the same recommendations about which the county is finally (apparently) getting serious now.

Forensic Science Commission to review Willingham, Moon cases

If this blog were a paid gig, I'd be headed off to Houston to attend the Texas Forensic Science Commission meeting first thing tomorrow morning, but after hemming and hawing over the cost I think I have to pass. Looks like an interesting agenda, though (see the opening meetings page at the Texas Register).

For starters, they're going to review the Cameron Willingham/Ernest Willis arson investigations and make decisions about next steps in the case. Those two men were convicted of arson based on identical (flawed) forensic testimony, but Willis was later exonerated while Willingham was sentenced to death and executed.

They'll also review the Brandon Moon case and consider whether to post a contract to investigate it in the Texas Register. This is another instance of flawed forensics, this time out of El Paso involving the Lubbock division of DPS crime labs. In that case, DPS and local prosecutors knew for eight years about the exculpatory evidence but nobody came forward to insist Brandon Moon be released. Brandon's a great guy who I've gotten to know through working with the Innocence Project, and I'm interested to learn what they're doing on his case.

The gathering will also receive a briefing on the "status of legislation involving (the) commission."

Hopefully some local reporter(s) will cover the event, or else perhaps some Grits reader who's able to make it can take detailed notes and let us all know what happens there.

Texas Monthly previews upcoming Sharon Keller ethics trial

In preparation for her upcoming trial beginning August 17 in San Antonio, Texas Monthly has put Michael Hall's August profile of Texas Court of Criminal Appeals Presiding Judge Sharon Keller on its public web site, featuring an indepth look at the circumstances surrounding what he calls "the most infamous phone call in recent Texas history"and the backlash that arose in response. Hall writes that Sharon:

Keller—long mocked by defense lawyers, judges, and state legislators as “Sharon Killer”—has brought negative publicity to the CCA before, but nothing like this. It will get worse when the trial begins, on August 17, in the San Antonio courtroom of district judge (and former CCA judge) David Berchelmann Jr. “It’s going to be a donnybrook,” said Cathy Cochran, one of Keller’s brethren on the CCA. Judge will testify against judge. The shroud of secrecy will be lifted—and not only from the court. Keller has been one of the more mysterious judges on the bench, a modest, private person not given to publicity (she declined to be interviewed for this story) who lets her conservative decisions do her talking.

Hall has much more in this long feature, as well as an update on the so-called Mineola Swingers Club cases--the next case has been rescheduled for August 3, after Judge Skeen completes a series of evidentiary hearings into several Brady issues. Both stories are worth checking out.

Expanding ranks of Texas lifers part of national trend

There's been lots of good discussion, some of it rounded up by Doc Berman here, of a new report from the Sentencing Project titled "No Exit: The Expanding Use of Life Sentences in America" (pdf), so I thought I'd pull out a few highlights and Texas specifics:

Texas has both life sentences which are eligible for parole (most of them) and also life without parole (LWOP). The latter in Texas is only a sentencing option in capital murder cases and as of 2008, just 71 Texans had received LWOP sentences, according to the report, while 8,558 offenders (6.1% of TDCJ's total inmate population) were serving life sentences in Texas adult prisons but will ultimately be eligible for parole. "However," as the Sentencing Project correctly notes, "eligibility does not equate to release and, owing to the reticence of review boards and governors, it has become increasingly difficult for persons serving a life sentence to be released on parole."

Six states and the federal government have only LWOP sentences, says the Sentencing Project. The total number of people nationally serving life sentences quadrupled in the last 25 years, with just 34,000 total prisoners serving life sentences in 1984 and more than 140,000 in 2008.

Among Texas lifers, 43.5% are black, according to the report, 33.8% are white, and 22.0% are Hispanic. There are 422 juveniles mixed into the totals for Texas lifers - about one in 20 out of all life sentences. Three of those juveniles are sentenced to life without parole, but going forward that penalty was abolished for juveniles by the 81st Texas Legislature. Out of those 422, thirteen juvenile girls are serving life sentences.

Notably, California uses life sentences much more liberally than Texas, particularly for juveniles but really for everybody. In a prison system just a little larger than ours (serving a population that's 60% greater, it should be added), a whopping 20% of all California prisoners are serving life sentences compared to just 6.1% in Texas. Of the more than 34,000 lifers in California, 10.8% are in for LWOP.

Does anyone wonder why California is cutting prisoners loose because it can't afford to incarcerate them all?

RELATED: Many states considering early release of prisoners.

MORE: Diane Jennings at the Dallas News Crime Blog offers up this helpful background:

In 1998, after Texas got "tough on crime," mandating minimum sentences of 30 years before becoming eligible for parole on a life sentence, and 40 years in capital murder cases, my colleague Bruce Tomaso and I wondered how many inmates had actually done that much flat time. We were startled to learn that Texas and other states had little experience with long term incarceration: At that time, 11 Texas inmates, out of a prison population of 143,000, had actually served 30 years flat, but the state was then sending 400 new lifers a year to prison.

Officers behaved "stupidly" but may have been trained that way

You know when the President of the United States calls a police officer's decision "stupid" in a primetime press conference that your department has had a particularly bad day, one that's going to reverberate in the national conversation about racial politics for quite a long time.

Obama was talking about the remarkable arrest of Harvard professor Henry Louis Gates in his Cambridge home for disorderly conduct after a neighbor called police thinking he was a burglar.

Having read several accounts of the incident, I think its root cause may or may not have been racial but was much more definitely the result of basic police training regarding how officers are taught to engage with the public. In this case, even after learning that Gates was in his own home and they'd been called out based on an error, officers still wanted to maintain a "command presence," in the policing lingo, and Professor Gates apparently was having none of it.

To be fair, Gates indulged his own frustrations and acted unwisely. The proper approach IMO would have been, after establishing he was in his own house, to repeat like a mantra, "Please get off my property, please get off my property ..." No need to argue or attempt to reason with police when his goal should be for them to leave.

Still, the "I'm in charge here" bluster by police heightened tension in a confrontational situation instead of defusing it and the end result was the President calling the cops "stupid" on national TV. To the extent it was "stupid," though, it's also worth remembering it's probably exactly how the officers were trained to behave, whether they're dealing with a black man caught breaking into his own home or some blogger who's babysitting while white.

Texas Tech will stop performing autopsies

Dozens of West Texas counties face a transition and possible vacuum regarding who will provide autopsy services for the region, with the Texas Tech Health Science Center backing out of the arrangement, according to a report in the Abilene Reporter-News ("Texas Tech to stop performing autopsies, July 22"). Lubbock County, at the end of the day, may wind up providing those services, but they're having trouble recruiting enough doctors to perform the task:

More than 80 counties have received a letter that Texas Tech University Medical Center will be getting out of the autopsy business by August 31, which means several counties throughout the Big Country will have to seek other providers.

The medical school is doing out of county autopsies until Sept. 1. Lubbock County officials say they are not prepared to take on all out-of-county autopsies just yet because more doctors must be hired.

“I sent out the letter and it was our intention to be able to pick up all of the out-of-county autopsies by Sept. 1,“ said Lubbock County Judge Tom Head. “But we have not had success in recruiting the doctors we need to provide the service.”

Head said three to four more doctors must be hired to handle the volume from out-of-county autopsies. ...

When UMC was handling all of the autopsies, between 750 and 900 were performed annually, including those for Lubbock County.

It's hard enough to draw doctors to West Texas to treat people, much less to perform autopsies, so it's no small dilemma if Lubbock can't find enough medical examiners to perform these tasks. In the meantime, some counties will have to use facilities in Dallas and Fort Worth or contract out to private labs.

At the tail end of the article, we get a little more backstory about why Texas Tech won't be performing autopsies anymore:

A Central Texas document investigator challenged the legality of the UMC office last spring.

State law describes medical examiners as licensed physicians employed by a county, but the office is not included in the Lubbock County budget. All counties needing forensic services contracted with Tech, rather than the county. Tech and county attorneys said the arrangement followed state law.

Health Sciences Center officials described the program last summer as an important chance to recruit and train rare specialists for high-quality work, but announced in early August that Tech would no longer handle the program.

Who was this mysterious "Central Texas document investigator," one wonders (and where can I get one of those "document investigator" jobs?). I'm surprised the Legislature wasn't asked to authorize the arrangement during the recent session; I doubt it would have been controversial.

In any event, maintaining sufficient capacity for high-quality, on-demand forensic services in sparsely populated areas is no easy task, and as evidenced by this example, it's not always clear exactly whose responsibility it is.

MORE: On the "mysterious document investigator," from a knowledgeable reader via email:

I'm fairly certain that the mysterious "Central Texas document investigator" is a guy named David Fisher, a professional expert witness who's made a specialty out of tearing apart autopsies for defense attorneys in murder cases -- usually by going after the qualifications of staff at the medical examiner's office. ...

From what I can tell, his underlying message is that the medical examiner's system in Texas is corrupted beyond belief and is too closely allied with the law enforcement community. Medical examiners are too poorly trained, too willing to go with whatever conclusions support the investigations of law enforcement, and too often left to operate with no one watching over them.

In addition to the stuff in Lubbock, he got the medical examiner in Hidalgo county booted a few years back because the guy didn't actually have a license. He's also made waves in the Bexar County and Travis County MEOs lately if I'm remembering correctly.

Proposed DPS rule would create new Indigence program for 'Driver Responsibility' surcharge

As I mentioned last week, the missus and I have been working on a little side project to propose changes to agency rules to the Public Safety Commission to establish an indigence program for Texas' Driver Responsibility surcharge. Today I sent out this letter to friends and allies among criminal justice reformers who may have an interest in supporting this proposal. Here's the text of that letter (edited slightly for context and to add hyperlinks). Anyone else interested in supporting this proposal can shoot me an email or leave a comment below.

Dear friends and compadres,

This quick note is a request for your support for a petition for rulemaking (see the petition) which will be filed with the Department of Public Safety next week to modify the rules that govern the so-called "Driver Responsibility Surcharge."

This surcharge is a civil penalty (that must be paid in three consecutive years) tacked on by the Legislature in 2003 in addition to criminal fines for certain traffic violations - most notably DWI, no-insurance, driving with a suspended license, and a lesser surcharge for drivers who accumulate a record of moving violations over time. (See more detail here.) The program has expanded until today the surcharge is owed by 6% of all Texas drivers, nearly 2/3 of whom cannot pay. The Legislature authorized an "indigency" program which DPS must implement by Sept. 1, 2011, but this proposal requests that DPS implement those changes immediately as well as create "amnesty" and "incentive" programs which were authorized in 2007 by SB 1723.

In particular, I'm looking for organizations and/or prominent individuals willing to endorse the proposed changes, as well as for folks in Austin who're interested in physically signing the petition for rulemaking. If after reading the draft amendments to the Texas Administrative Code proposed in this petition, anybody has significant suggestions or comments about the proposed rules (much of which tracks language in the recent DPS Sunset bill, but some of which is new), I'd certainly be happy to entertain them. I've little doubt these proposals may change, perhaps significantly, as they traverse through the rulemaking process - this petition merely aims to get the ball rolling.

If this issue doesn't interest you or seems outside your bailiwick, stop reading here and I apologize for wasting your time. For those who are interested, please indulge me just a moment to describe the Driver Responsibility Surcharge and the reasons for supporting these particular rule changes at this time to the Public Safety Commission. See also recent coverage from Grits for Breakfast. There's also a version of the draft rules posted online here.

Texas has assessed more than $1.5 billion in surcharges since 2003 but only successfully collected just over $400 million of that amount. The vendor takes 4% off the top. After that, by law 49.5% of net revenue from surcharges goes to Texas’ trauma center hospitals, 49.5% goes to state General Revenue, and DPS keeps 1% as an administration fee. While the number of Texas drivers getting these surcharges is high (about 6% of all drivers, at this point), collections rates are strikingly low (36% overall, according to the collections vendor).

The main problem in practice is that indigent people or low-income people just can’t afford all this money in addition to already steep fines and mandatory insurance coverage. People who don’t pay their surcharge lose their drivers license, inevitably continue to drive, and thus rack up more surcharges in addition to their traffic fines. An ultra-punitive approach set out in DPS rules for these surcharges exacerbates the problem with short payment periods and limited paths to get back on track. The Legislature gave DPS authority to fix the program in 2007 with the passage of SB 1723, which authorized but did not mandate "indigency," "amnesty," and "incentive" programs.

Slow to move on these ideas, the Public Safety Commission authorized but never implemented a very limited incentive program in the fall of 2008, just as lawmakers were returning for the new session. While claiming to be an amnesty and indigency rule, it is really just a minimalist "incentive" plan and does little to fix the underlying problems that result in high nonpayment rates.

So this 81st legislative session, lawmakers got serious (Sylvester Turner authored the relevant amendments) and did something very positive for low income people Texas drivers generally—IF the Department of Public Safety implements it properly, and soon. The Legislature mandated that DPS create an “Indigency” program and changed the minimum payment requirements to give people more time to pay. The new law (H.B. 2730) mandates the creation of the indigency program by September 1, 2009 [Sec. 6.10 of the bill] and mandates certain standards for the program by 2011 [Sections 15.01-15.08 of the bill].

At first, DPS' General Counsel said they needn't implement any indigency program for another two years, but most other observers including the District and County Attorneys Association interpret the Sunset bill's language in Section 6.10 to require some sort of indigency program go into effect at the beginning of the next fiscal year. By submitting this petition with 25 signatures, under state law the PSC is required to at least has to give the issue a hearing.

I realize it's a little unusual for a blogger to take the lead proposing changes to state agency rules - perhaps stretching the term "advocacy journalism" a tad further than its more typical and familiar usage. But I've been following these legislative changes closely and writing about the issue for years, so my better half Kathy Mitchell and I decided to develop this proposal ourselves and bring it forward independently, making the case for more consumer-friendly provisions in the rules directly to the Public Safety Commision.

To their credit, the PSC was genuinely receptive when I spoke to them on this topic last Thursday and the chair established a subcommittee of the board to work on the topic. Submitting this petition will require them to at least give the idea a hearing and let advocates make the case that the surcharge needs to be scaled back substantially.

Other things you can do to help even if you can’t physically sign the petition:

• Allow me to list you as an endorsing organization or individual, even if you do not formally sign the petition letter.
• Write individual or organizational letters of support to the Public Safety Commission before the public hearing.
• Comment on the rules when they are published in the Texas Register. I will notify everyone when rules are published for public comment.
• Use any email alerts, listservs or other means at your disposal to encourage your group's members to respectively, constructively voice their support to the PSC.
  
• Attend the public hearing and testify: I believe we will easily get the 25 signatures required for a public hearing. At that time (probably in September), I would love for you to come support the rules changes at the PSC.
• Help me identify other groups or individuals who might support this proposal and convince them to voice their support. I'm looking for support from across the political spectrum: to my mind this should be a nonpartisan issue.
• Contact the Governor in support of the proposal after the public hearing.
• Keep me in the loop about any communications by your group, etc., so I can promote this brief campaign on Grits for Breakfast and give credit to everyone who's supporting it.
  

I will send a final version of the attached letter to the Director of the Department of Public Safety along with the requisite 25 signatures early next week. That will launch formally a process that is likely to take at least 60 days and result in a public hearing over the proposal.

Thanks in advance for any support you can provide for what I hope will be a brief and productive mini-campaign over the next couple of months.

Sincerely,

Scott Henson

www.GritsForBreakfast.org

shenson@austin.rr.com