TYC Ombudsman indicted, resigns

If you'd predicted this when Governor Perry appointed Judge Catherine Evans TYC Ombudsman earlier this year, I'd have said you were nuts. See Mike Ward's coverage at the Austin Statesman.

Coming to grips with unscientific forensic practices

The Fort Worth Star Telegram yesterday published a lengthy, remarkable piece from Yamil Berard titled "Stakes are high as doubt is cast on forensic lab techniques." The article is one of the first published in the MSM in Texas to fully explore the implications of conclusions published earlier this year by the National Academies of Science (NAS) that many common forensic techniques had no scientific basis and their validity had never been tested - particularly comparative disciplines where individual technicians seek to match patterns in everything from fingerprints to tire tracks to ballistics to bite marks. Reports Berard:

The Texas Forensic Science Commission had planned this month to begin a series of discussions about a national report that opened a Pandora’s box of questions about crime lab techniques. The National Academy of Sciences — advisers to Congress and the president — reported that conclusions about bullet matching are opinion, not fact. Most other identification methods widely used by forensic scientists, the panel advised, also haven’t been validated.
How did a scientifically unproven method receive the blessing of the FBI and forensic "experts" across the nation and other crime lab methods become so widely accepted?
"In a nutshell, these people aren’t scientists," said Jay A. Siegel, a member of the academy, which was established by President Abraham Lincoln to advise the nation on far-reaching questions of science and technology. "They don’t know what validation is. They don’t know what it means to validate a test."
Bullet matching — a practice that takes place every day in Texas crime labs — isn’t reliable, Siegel said, and no studies have been conducted to prove the extent to which firearms marks are unique.
"It’s not possible to state with any scientific certainty that this bullet came from any weapon in the world," said Siegel, who is the chairman of the department of chemistry and chemical biology at Indiana University-Purdue University Indianapolis and director of the Forensic and Investigative Sciences Program.
Other identification methods — including tying hairs to suspects, guns to criminals and blood spatter to crime scenes — lack protocols and standards that legitimize such practices as "scientific."
Of the methods, only DNA analysis stands up to the test to match an individual to crime evidence, the scientists reported.

One of the Forensic Science Commissioners Gov. Perry recently declined to reappoint told the Startlegram that ""The NAS opened the [Pandora’s] box, and now we just need to face it." Everyone interested should read the whole piece.

Berard predicts that, if the Forensic Science Commission restarts its plans to sponsor discussions around the state about the implications of the NAS report, "criminalists and crime lab directors across Texas will likely blast the academy’s report, 'Strengthening Forensic Science in the U.S.: A Path Forward.'" I've not heard anyone "blast" the findings per se, but maybe that's coming. (A discussion of the NAS report appears on the first day's agenda of an upcoming conference in Fort Worth on "Current Trends in Forensic Science," so it's possible that might be a place where reservations are more frankly expressed.)
Relatedly, the Waco Tribune-Herald had a story yesterday on the current state of arson science and the impact of critiques of outdated forensics in the Todd Willingham case on the field of arson investigation ("Local fire investigators confident in arson training techniques and welcome scrutiny," Nov. 29) According to reporter Cindy Culp:

Critics of Texas’ fire investigation standards worry that some investigators may still cling to the old wives’ tales, however. They also express concern about investigators not being required to have a science background, saying it is needed to truly understand fire behavior.
In Texas, people can become fire investigators as long as they have a high school diploma, complete 150 hours of training and pass a certification exam. To investigate arsons, they also have to become certified as a peace officer, which generally involves going through a police academy.
Central Texas officials who conduct fire investigations say there may be truth to some of the criticism. But, by and large, investigators do a good job, they say. ...
[Killeen Fire Marshal James] Chism said the controversy over the Willingham case is a good chance for the profession to look at old investigations where questionable techniques may have been used. The industry also needs to seize the opportunity to weed out investigators who cling to outdated beliefs. It would be naive to think none exist, he said. “Whether it is an old-school mentality or sheer laziness because it’s what they’ve always done, I still have to think those old wives’ tales are still getting play in the state of Texas,” Chism said.
In the end, Chism predicted, public confidence in fire investigations will increase.

Over the next five to ten years we're going to see an historic, first-of-its-kind evaluation of so-called forensic "science" disciplines that are really subjective, untested and in some cases inherently unscientific.
That's the real concern with John Bradley shutting down the Forensic Science Commission debate over the Todd Willingham case. As the Killeen fire marshal says, it would be naive to believe other investigators aren't still coming up with arson findings based on assumptions that aren't supported by science. But even more importantly, there are many other forensic disciplines that we now know are equally deserving of open, honest scrutiny. Unless Mr. Bradley does an unexpectedly bang-up job that assuages widespread concerns that he's engaged in a coverup, the main entity created by the state to spearhead such evaluations won't have the public confidence required to be seen as a neutral arbiter.

Related Grits posts:

• NAS Report: Many forensic disciplines prone to error
• Justice system commonly relies on shoddy forensic science
• USDOJ should embrace, not fight science-based forensics
• Shoddy forensic science ruins real people's lives
• Background materials on shoddy forensics
• Arson cases may be next venue for innocence claims
• Many arson convictions based on invalid science
• College developing screening processes to vet old arson cases for junk science

Mama Tried

Gary Scharrar had a feature over the weekend in the San Antonio Express News on Williamson County District Attorney John Bradley, his political siblings and their liberal mom who disagrees with much of their politics. The story opens:

Hard-nosed Texas prosecutor John “Marty” Bradley supports the death penalty. His mother, Shirley Bradley, remains a fervent opponent of it.

Her oldest son, John “David” Bradley, is an outspoken Republican leader among the social conservatives on the State Board of Education. His mom proudly keeps his campaign bumper sticker on her car — along with a bumper sticker promoting Democratic Party icon Hillary Clinton.

Not surprisingly, Shirley Bradley enforces a firm rule when the family gathers for holidays and other occasions: No talking politics or religion.

“It's my rule. ... Those are just forbidden subjects,” the Houston family matriarch says. “We all have heard each other's opinions enough. It was nonproductive. I want to have happy times with them. I respect their opinions. I don't agree with them, but I taught them to have opinions.”

And her two older sons certainly have strong opinions. Both are named John, although the oldest goes by David. Count him among the State Board of Education leaders who helped weaken the teaching of evolution in public school classrooms, pushed phone-tics and back-to-basics reading skills and led an effort to ditch a “fuzzy math” textbook for third-graders.

John Bradley, 50, known as “Marty” among family and friends, is 11 months younger than David. He has a law-and-order reputation as the district attorney in GOP-strong Williamson County just north of Austin. His profile recently was raised when Gov. Rick Perry, in a controversial move, named him the new chairman of the Texas Forensic Science Commission — replacing a chairman who had led the panel's investigation of disputed arson evidence in an execution case.

Go here for the full article. Interesting personal background on an already-controversial figure who Governor Perry recently thrust into the center of what's arguably Texas' most hot-button political imbroglio of 2009. I was unaware in particular of JB's brother on the State Board of Education and his role critiquing evolution theory in science books. Given that, it's particularly ironic for the governor to appoint his DA brother to chair a state commission evaluating forensic science.

There's a stereotype which grew out of the 1960s and '70s about young people rebelling against their parents' conservatism to embrace (in some cases) extremist liberalism, but apparently when your parents are more liberal, one rebels in the other direction. In honor of Mama Bradley, who sounds like a great lady even if I've occasionally butted heads with her son, here's a cool rendition of an old C&W tune that came to mind as I read this article - "Mama Tried," by Merle Haggard, who is accompanied in this 2004 version by Toby Keith and Willie Nelson:

House releases 'interim charges': What criminal justice topics on the agenda?

Speaker Joe Straus last week issued the "Interim Charges" for standing committees in the Texas House. Since the Texas Lege meets only 140 days every two years, in the interim committees study lingering problems or emerging issues with an eye toward developing legislation in the next session. So issues studied in interim charges tend to have a tad more momentum once session starts - particularly early in the session - than bills that weren't part of that process. The committees also hold oversight hearings during the interim that tend to generate a lot of information about the agencies under each committee's purview.

Here's the full list (pdf) of interim charges and below are the criminal-justice related issues among them I identified (duplicates deleted where committees have joint charges):

Appropriations:

10. Examine annual cost increases and the factors related to the increases for Correctional Managed Health Care. Recommend policy changes that could yield savings to the state.

14. Monitor and review the disbursement and use of border and homeland security funds. Evaluate the effectiveness in meeting the state's border and homeland security program goals and objectives. Joint Interim Charge with House Committee on Defense and Veterans' Affairs

Border and Intergovernmental Affairs

1. Evaluate the effectiveness of state operations at controlling drug-related crimes and other violence along the Texas-Mexico border. Joint Interim Charge with House Committee on Public Safety

Corrections

1. Examine implementation of the diversion pilot programs, juvenile case management system, and other policy and funding initiatives to determine whether the Texas Juvenile Probation Commission and the Texas Youth Commission have adhered to legislative directive in implementing these programs, and the impact of these programs on commitments at the Texas Youth Commission. Joint Interim Charge with House Committee on Appropriations

2. Study and evaluate the availability and efficiency of community-based corrections supervision and treatment programs and their impact on prison capacity and recidivism rates. Determine whether the supervision and treatment programs have been designed in accordance with evidence-based practices and whether adequate evaluation methods have been incorporated.

3. Study current re-entry programs and procedures across the juvenile and adult criminal justice continuum. Make recommendations to ensure that offenders who are released or discharged have the necessary supervision and access to employment, housing, treatment, and other support programs to allow successful entry and integration into the community. Evaluate the working relationship between state agencies facilitating re-entry and make recommendations on how to achieve greater efficiency and cost savings.

4. Examine policies and programs designed to identify, divert, and enhance the supervision and treatment of special needs offenders within local jails and state correctional facilities. Recommend changes to address appropriate alternatives to incarceration or institutionalization.

5. Review the range of services provided to females in the juvenile and adult criminal justice systems and recommend changes to ensure responsiveness to gender-specific issues. Review should include institutional and community supervision programs and utilization of correctional facilities that house nonadjudicated populations.

County Affairs

3. Study county oversight related to pretrial release on bond in criminal cases.

Criminal Jurisprudence

1. Examine the deferred adjudication system in Texas and recommend legislative changes.

2. Study how the state presently supports the establishment and maintenance of public defender offices.

3. Study the human and sex trafficking problem in Texas. Make recommendations on best practices in the areas of investigation, prosecution, and tracking of the victims of these crimes. Study whether victims of these crimes are allowed to adequately recover from their attackers in a civil cause of action. Joint Interim Charge with House Committee on Judiciary and Civil Jurisprudence

4. Monitor the implementation of SB 1940 (81R), which established veterans court programs in Texas, and examine the link between combat stress disorders of war veterans, including post-traumatic stress disorder and traumatic brain injury, and the onset of criminal behavior. Joint Interim Charge with House Committee on Defense and Veterans' Affairs

Public Safety

1. Study the recruitment and retention practices that the Department of Public Safety currently employs and make recommendations on how to make improvements. Specifically, examine the current officer shortage in Texas and the effect it is having on the state's public safety.

2. Investigate best practices to process concealed hand gun licenses in order to alleviate backlog and make recommendations for implementation, if appropriate.

3. Monitor the Driver Responsibility Program and consider methods for overall improvement of the program.

4. Study the statutory definition, duties, and authority of a Texas peace officer.

Several items here stand out. For starters, it's interesting to me that Appropriations will independently investigate prison health care costs. That indicates that, as state cost drivers go, prison health has made it fully onto state leaders' radar screens. Texas spends nearly $1 billion per biennium on prison health care, and costs are increasing largely as a function of long sentences and an aging prisoner population - inmates age 55 and older consume healthcare services at three times the rate of their younger counterparts.

One also notices that the Border and Intergovernmental Affairs Committee's top issue this go-round is evaluating state border security efforts, whereas last time the first item on their list was "Study the establishment of a citizen trade policy commission and an office of trade development." That's a notable shift in priorities.

The Corrections Committee's plate is full with many issues regularly covered on this blog. By contrast, aside from its charge to investigate deferred adjudication and the narrow issue of veterans courts, the Criminal Jurisprudence Committee's load seems relatively light, avoiding topics regarding overcriminalization and innocence-related issues that I'd have liked to see them take on.

A sleeper on the list may be the County Affairs charge on pretrial bonds. Increased pretrial detention rates are the main cause of county jail overcrowding in Texas and analyzing "county oversight" of the process is a sticky question because so many players are involved.

I'm also glad to see the Public Safety Committee take on the Driver Responsibility Surcharge. We've been waiting for months now for DPS to issue new rules governing the surcharge but nothing has come out yet in the Texas Register. (CORRECTION: An attentive commenter supplied the text of the new rule which was filed with the Secretary of State Nov. 23. More to come on this development.) And though the topic sounds dry, the issues surrounding definitions of a police officer potentially could make for a lively debate in Tommy Merritt's committee.

Finally, though not directly related to criminal justice, as a blogger I feel obligated to point out this odd charge for the General Investigating and Ethics Committee:

2. Review the definition of "political advertising" and determine whether the definition should be expanded to include content contained in blogs and other types of Internet communications.

I don't know what that's about but the discussion will bear watching.

Dallas fake-drug informant shows how 'cooperation' benefits can promote crime

The main informant involved in the Dallas fake-drug scandal, Enrique Martinez Alonso, served five years for his role collaborating with Dallas narcotics officers to set up two-dozen innocent people, then was deported in 2007. Now, reports Jason Trahan in the Dallas News ("Police informant in Dallas' fake-drug scandal faces prison time for counterfeiting," Nov. 29), he's been arrested again in the Dallas area on charges of distributing counterfeit money to undercover federal agents:

A crooked former Dallas police narcotics informant has moved from fake drugs to fake dollars.

In 2001, Enrique Martinez Alonso was among a group of Dallas police snitches who bought pool chalk in bulk, packaged it to look like cocaine and planted it on Hispanic immigrants who were then arrested by narcotics officers.

The scandal was among the most damaging in Dallas police history. It led to firings, demotions and jail time for one of the detectives involved. The city paid millions in settlements to wrongly accused Hispanic immigrants.

After serving about five years in custody for state and federal convictions, Alonso was deported in 2007. The next year, he was back in North Texas, selling fake cash to undercover federal agents.

Alonso has pleaded guilty to counterfeiting and immigration charges. U.S. District Judge Sam Lindsay could sentence him to 20 years during a hearing Monday.

"It's sad," said Dan Hagood, the special prosecutor who investigated the fake-drug scandal. "He had many opportunities to learn his lesson. And, frankly, his sentences in his earlier convictions were much less because of his cooperation with the federal government. Taking this second opportunity to commit more crimes of a similar nature is unfortunate."

Unfortunate, to say the least. Snitching kept this crook in business. He was allegedly paid more than $200,000 in informant fees as part of the fake-drug stings (though it's been speculated Alonso didn't receive all that money and Dallas police officers may have been skimming).

Dallas police tolerated Alonso's crimes, including involvement in the drug trade, while he set up 24 innocent people over period of many months. Then he received a sentence from the feds that was "much less" than federal sentencing guidelines in exchange for "cooperation." By contrast:

His brother, Daniel, who worked with him as an informant [in the fake-drug cases], received 20 years. In all, officials say, former Dallas narcotics Detective Mark Delapaz paid six crooked informants $440,000 in police funds for their fake drug tips.

Enrique was always portrayed by the media and officialdom as the main informant working with Delapaz (and the seven other officers who allegedly faked field tests claiming Alonso's drugs were real), so it's somewhat shocking to learn he received a sentence only 25% of his brother's. That's a steep discount for his second stint as an informant - this time against his co-conspirators and police "handlers." This fellow keeps being compensated for snitching on others - by Dallas police, by the feds - even when he appears to be at the center of the criminal activity in question. Indeed, who thinks that, if there's anybody available to roll on, Alonso won't again seek cooperation benefits in his current federal case, either now or once he's in prison?

Alexandra Natapoff has argued that snitching promotes crime, either because it's knowingly tolerated by authorities (in one notorious, recent instance Dallas Sheriff's deputies allowed an informant to help pull off an armed robbery without intervening) or by reducing sentences for criminals who inform. Mr. Alonso's case is a prime example. Counterfeiting is a major crime. It's not that easy to print fake money and he put together this scheme just two short years after his deportation. He seems to be a much bigger crook than anybody Dallas PD ever used him to target.

Statesman plugs "D.A. Confidential"

The Austin Statesman published a feature today on a new blog by a Travis County prosecutor, D.A. Confidential. According to courts reporter Steven Kreytak:

Mark Pryor said that friends, neighbors and fellow lawyers regularly ask him about his job as a felony prosecutor in Travis County.

And the former newspaper reporter, who hopes to soon be a published novelist, loves to write.

So Pryor began a blog last month called D.A. Confidential, which he hopes will give readers insight into the local criminal justice system and will be a fun place to read his take on stupid criminals, novel crimes, crime novels and related things.

"My original plan was to blog about the secrets that haunt the halls of the D.A.'s office ... but never leak from the airtight offices," Pryor wrote in his first post on Oct. 10. "But then I remembered how much I love my job."

Lawyers have blogged about their work for years. Among them are Jamie Spencer with his Austin Criminal Defense Lawyer blog and Keith Lauerman with Criminal Defense in Travis & Williamson County, Texas: Facts, Fictions, & Fairytales. But there are few blogs run by prosecutors and no prominent ones locally focusing primarily on criminal justice.

Be sure to read the rest of the story and check out DA Confidential. BTW, my apologies, Mark for not getting around to plugging your blog sooner. Keep it up; we don't have enough workaday prosecutors in the blogosphere.

Most Houston police suicides received no treatment

According to the Houston Chronicle (Nov. 28), 90% of HPD police officers who commit suicide had not previously received counseling, even though a psych unit was created at the department in 1979 after six officer committed suicide in two years. Four HPD officers have committed suicide in 2009.

The story reminded me of an excellent post from October at the Dallas News Crime Blog by Tanya Eiserer, who provided some broader context on law-enforcement suicides. She wrote:

Far more cops die every year from suicide than being killed in the line of duty.

Frankly, I was stunned by the figures I heard during a session on police suicide.

Roughly, 150 officers die in the line of duty each year. Meanwhile, police suicides number at least 250 every year.

Consider that suicides account for about 12 per 100,000 deaths in the general populations. Among white males, it was 18 deaths per 100,000. One study found suicides number about 22 deaths per 100,000 among cops. ...

About 89 percent of documented police suicides involve alcohol abuse

Those rates are well above the number of officers who die on the job every year from traffic accidents, shootings and other occupational hazards, adding to the dangers inherent in police work. Body armor won't protect the officer who puts a service revolver in his mouth and pulls the trigger.

For that matter, the rates of suicide among the general public, according to Eiserer's data, are more than double Texas' homicide rate. Yet how may public resources are spent on suicide prevention compared to all the criminal justice resources expended on murder?

Earlier this year, the Texas Senate Criminal Justice Committee issued recommendations for ways to reduce job-related police officer deaths. Regrettably, however, the issue of suicide was not much discussed. Given that police suicides are substantially more common than other types of job-related deaths, perhaps a starting point might be requiring agencies employing licensed peace officers to provide meaningful access to mental health treatment, either through the department or their health-care plan.

This is a topic that deserves more attention than it usually receives.

Colorado may reduce drug-possession sentences to lower costs; should Texas?

Colorado is considering reducing drug sentences as part of an effort to reduce prison costs, reports the Colorado Springs Gazette ("Prison Crowding: $700 million is too much; release nonviolent offenders early, panel says," Nov. 22):

Colorado prisons are overflowing with inmates, at a cost of nearly $700 million a year to taxpayers, in part due to mandatory sentences for nonviolent drug offenders, a panel of state lawmakers and sentence reform advocates said at a town hall meeting Saturday.

To ease the pressure on the state prison system, the 2010 General Assembly will be asked to pass a package of bills that would give judges discretion at sentencing to let some of those convicts out sooner.

The sentencing reform package also will include bills reducing penalties for possession of marijuana and other drugs. For example, possession of 4 ounces of marijuana would become a petty offense instead of a criminal misdemeanor. Possession of 8 to 16 ounces would be a misdemeanor under the bills, instead of a felony.

Similar reductions would apply to possession of small amounts of cocaine and methamphetamine and various prescription drugs, with the exception of “date-rape” drugs.

The package also will address DUI sentencing laws, perhaps raising penalties for habitual DUI convictions, said Christie Donner, executive director of the Colorado Criminal Justice Reform Coalition.

That's an encouraging sign and at some point in the future Texas, whose prison budget is four times that in Colorado, should follow suit and reconsidering sentence levels for small-time drug possession crimes.

What are the prospects for such reforms here? At the Texas Legislature, we've already seen initial moves toward these goals, but never with nearly so much momentum as they've apparently found in Colorado.

Reviewing recent Texas advocacy on drug sentencing, one is reminded that Republican District Judge Michael McSpadden out of Houston has for several years been calling for reducing low-level drug penalties, both as an issue of fairness and because too many petty cases are clogging up felony courts. Last year he convinced 15 other district judges from Houston - from both parties - to sign a letter supporting reduced drug sentences.

Legislative efforts to reduce criminal sentences in Texas have been greeted with caution, but not with entirely discouraging results. In 2003, facing deep budget cuts and declining sales-tax revenue, then-Chairman of House Corrections Ray Allen filed legislation to reduce penalties for less-than-a-gram possession offenses from a state jail felony to a misdemeanor. A compromise version of the bill ultimately passed which kept the crime as a felony but required judges to give probation to first-time offenders, a move which diverted thousands of people from the prison system and presaged more expansive probation reforms passed in 2007.

From there, I've often thought that the next, obvious incremental step would be to reduce less-than-a-gram possession charges to a Class A misdemeanor, at least on the first offense. After all, less-than-a-gram first-offenders now aren't going to prison anyway (and crime has only gone down since that became the law in 2003), plus the "felon" label creates negative collateral consequences that encourage instead of prevent recidivism. In Colorado, they're considering going even further than that, heeding Judge McSpadden's warning that all these cases should be treated less punitively.

Similarly, regarding marijuana penalties, few recall that in 2005 the House Criminal Jurisprudence Committee - then under the chairmanship of Republican state Rep. Terry Keel of Austin - unanimously voted for state Rep. Harold Dutton's bill to reduce penalties for possession of less than an ounce of marijuana from a Class B to a Class C misdemeanor - essentially a ticket-only offense - just as is being suggested (up to 4 oz) in Colorado. Even state Rep. Debbie Riddle - widely considered the most conservative member of the Texas House - voted for the legislation in committee. A lot of institutional players - sheriffs, cops, county officials - quietly approved of the bill behind the scenes because it would keep officers on the street for more important duties, reduce jail overcrowding, and limit local costs for providing indigent defense (which is required for B misdemeanors but not for Class C tickets). However, scarce few were willing to come forward publicly.

Though preliminary head counting showed the votes were likely there to pass the bill in the House, the legislation regrettably never received a floor vote. Though it couldn't be reliably confirmed, I was told that then-Speaker Tom Craddick quashed the bill in Calendars Committee, wanting to protect House members from having to take a difficult, potentially controversial vote. Still, there was no real opposition - literally no negative testimony at all in the committee hearing - except an intangible sense that the issue could become sort of third rail they might be attacked for during campaign season. I'm increasingly skeptical, however, whether such fears are really justified.

Given our history in Texas, I'm pleased Colorado will be considering quite similar if more ambitious proposals next spring. If they succeed (and if those who support reform survive their elections in the fall), perhaps they'll provide a template for reform that the Texas Lege could emulate. In light of inevitably declining budgets by the time the Lege meets again in 2011, Texas must plan now to enact policies during the 82nd legislative session that will safely reduce (or at least limit growth in) state spending on corrections. Targeted sentence reductions could be another important tool in the toolbox for reducing corrections costs if state leaders are willing to use it.

Via Thinking Outside the Cage.

NY Times sees new bipartisan consensus on criminal justice, ignores old one

A story by Adam Liptak published on the front page of the New York Times Tuesday has been getting a lot of attention: "Right and Left Join Forces on Criminal Justice." It described growing "signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained."

I'm glad to see the story, and have witnessed many signs of this seemingly unlikely coalition here in Texas over the past several legislative sessions, and even on national issues.

But I'd disagree somewhat with the premise of the article, which is that the left and right are only just now coming to agree on criminal justice. The reality is, for my entire adult lifetime there has been a standing, bipartisan consensus on criminal justice: In favor of expanding its scope and boosting police power. The traditional framing of supposed left-right divisions simply doesn't fit well with the realities of criminal justice politics.

This becomes clear working in the political process: In general, liberals who like big government are more willing to use criminal laws to solve social problems. Even among Democrats who dislike mass incarceration, very few spend an ounce of political capital to oppose creating new crimes or increasing criminal punishments. That's how Texas ended up adding 40 new crimes and increasing penalties for 36 more during the most recent legislative session, even though the House committee in charge of most of the bills (Criminal Jurisprudence) was controlled 8-3 by Democrats.

The majority of bills at the Texas Legislature increasing or creating criminal penalties are carried by Democrats, and it was Ann Richards who successfully won nearly 100K new prison beds back in the '90s. At the national level, the biggest drug warriors in the Senate for 20 years have been Joe Biden, John Kerry and Tom Harkin. So this recurring characterization of conservatives as tuff-on-crime and liberals as "soft" ignores how such issues play out in the real world, where tuff-on-crime is a bipartisan consensus, not a culture-war style tug of war.

The "liberal-conservative" stereotypes on criminal justice mask significant diversity of views in both parties over support for mass incarceration. For the past generation, a plurality from both camps have joined together to beat down "fringe" elements of their respective parties by labeling them soft on crime and thus supposedly unfit to face a general electorate. That's why neither party will reliably support reform measures; a large number in both still hew to the "tuff-on-crime" consensus. Nearly all successful reform efforts on criminal justice piece together coalitions from discrete sub-factions in both parties that don't share that "tuff" consensus view.

On the Republican side of the aisle, too, there is much more diversity of opinion about criminal justice reform topics than the "tuff on crime" stereotype gives them credit for. There are three wings of the conservative movement with either ideological inclinations or near-term self interest in supporting certain aspects of criminal justice reform.

Libertarians are the easiest to identify, but they're also the smallest group and the least powerful. They're inherently suspicious of concentrated government power and critical of policies devaluing individual rights.

Less appreciated is the extent to which religious conservatives are frequently more willing, even, than many secular liberals to embrace notions of redemption and salvation for sinners. They're also more likely to listen to folks from prison ministries, chaplains and other religious voices who have direct contact with the system. Plus, they frequently come to the table with a notable and under-appreciated cynicism about government power. I can recall, after he was named Chairman of the House Corrections Committee by then-Speaker Tom Craddick, former state Rep. Ray Allen (a former campaign client, for the sake of full disclosure) once told me that his past included organizing anti-abortion protests at clinics where, when the cops showed up, they were usually there to protect the "abortionists" on the other side of the picket line. Given that somewhat confrontational history with law enforcement, it felt "a little weird," he once confided to me, being placed in charge of the state prison system. Allen went on to propose and pass legislation to divert first-time, less-than-a-gram drug offenders away from prison onto probation.

Probably the element that finally drew the New York Times' attention, though, has come in the arena of corporate conservatism, which has recently embraced narrow aspects of criminal justice reform in response to corporate prosecutions, prosecutorial misconduct, and the expansion of criminal law to rein in business excesses in lieu of traditional regulation (overcriminalization). Businesspeople don't like to be regulated, but it turns out they like being prosecuted even less.

This trend has been percolating in the states for a while and in places like Texas and Kansas, where seemingly unlikely reforms have come to pass, it was political coalitions built on these insights that allowed them to happen. I don't know whether that's replicable in D.C., where politics is more strictly pay-to-play. But there's a lot more potential for legitimate bipartisan consensus on criminal justice reform than on many other issues the nation faces.

'Chairman of Texas forensic science panel oversteps his authority'

The title of this post is the headline of a Fort Worth Star Telegram editorial today chastising Williamson County DA and Forensic Science Commission Chairman John Bradley for an array of recent moves aimed at clouding the commission's work in secrecy. Bradley wants to make meetings closed, records secret, and now he's telling other commission members to delete their emails and that only he may speak with the media. Opines the Startlegram:

What is it John Bradley doesn’t want the public to know about the work of the Texas Forensic Science Commission?

Gov. Rick Perry appointed Bradley, the Williamson County district attorney, to head the commission in September in a hasty shake-up of the panel’s membership that left lingering suspicions about the governor’s motives.

Bradley then proceeded to suggest in a public hearing that the commission might need to operate in secret on occasion. This Editorial Board cautioned against that idea on Nov. 14.

Now it sounds as though Bradley could be subtly trying to muzzle other panel members.

What he — and the governor — should realize is that this agency isn’t going to revert to obscurity, and trying to exercise dictatorial control over information is only going to draw negative attention and undermine public confidence.

This whole situation has the outward appearance of a pretty brazen coverup, whatever excuses Mr. Bradley publicly provides for his actions.

Data on TDCJ Unit Age and Cost

Yesterday I suggested that Texas should consider closing one or more of its older, more expensive-to-run prison units in the face of bleak budget estimates heading into the 2011 legislative session. I asked Michelle Lyons, the public information officer at TDCJ, for data referenced by Sen. John Whitmire on cost-per-unit at TDCJ, and she sent me a fabulous spreadsheet, which I've uploaded onto Google documents here. Take a look; there are a lot of interesting tidbits in the data.

Setting aside psychiatric, medical and drug treatment facilities, the range of cost-per-prisoner is still pretty striking, from $28.17 to $67.64. Of course, variations in programming will inevitably account for some of the differences in cost. (It should also be mentioned that cost figures are pretty dated - from 2005. But one supposes the relative costs among units are still generally valid.)

The oldest prison unit in Texas at Huntsville, according to the spreadsheet, was built in 1849, making it now 160 years old. (The spreadsheet says 158, letting us know it was likely created a couple of years ago.) The next round of prison building that contributed still-used buildings came in the 1880s - four units date from that era, along with another five from each of the first and second decades of the 1900s. After 1919, the next Texas prison still in use today didn't open until 1962.

Of those 15 older units, several have higher-than-average costs per prisoner, particularly smaller units in Gatesville and Richmond with costs per prisoner in the mid-$50s. Most of the units at the top end of the cost list (again, excluding medical units, etc.) have fewer than 1,000 inmates apiece, meaning their closure would reduce capacity only in small, manageable chunks. Thirty Texas prisons, according to this chart, house fewer than 1,000 prisoners; 13 units have fewer than 100 full-time employees at full capacity.

The chart also gives useful data about current unit-by-unit staffing levels, including the number of vacancies and the percentage of positions vacant at each unit. Despite recent staffing gains, a half-dozen TDCJ units have staffing levels below 70%. These are not older units but mostly rural ones, in Dalhart, Lamesa, Colorado City, and Tennesee Colony (where TDCJ's third-largest unit, Coffield, has 229 vacancies).

Another striking cost figure comes from the prison hospital in Galveston: $1,817.62 per day per prisoner (in 2005 dollars).

Interesting data, which may become fodder for additional, future posts.

Peeking in on the feds: Texas' Western District prosecutors less generous than Southern

I've been meaning to revisit some of the testimony from last week's US Sentencing Commission hearing here in Austin, and thought I'd point out some interesting data from federal probation chiefs here in Texas and some new (to me) data on federal prison overcrowding.

According to written testimony (pdf) from Texas Southern District Probation Chief Becky Burks submitted last week to the US Sentencing Commission, immigration cases make up the overwhelming portion of the district's court docket. She notes that "in FY 2008, the Probation Office completed 6574 presentence investigations and supervised 5470 offenders in the community." Of those, "relative to the primary offense of conviction, Immigration comprised 72.5% of the cases, with drugs coming in second at 18%, and firearms, 2.9%, and fraud, 2.2% virtually tied at a distant third."

Burks testimony also describes the burden put on federal probation departments for immigration cases, pointing out that "Supreme Court and 5th Circuit case law make these presentence investigations some of the most laborious to produce and the sentencings among the most complex."

For reasons that aren't clear to me, there's a wide variation between the two districts regarding how often prosecutors support downward variances from the federal sentencing guidelines. Wrote Burks:

As it pertains to sentencing practices, 57.7% of Texas Southern’s 2008 cases were sentenced within the guideline range. While this was not drastically different from the national rate of 59.4%, it was significantly below the 5th Circuit rate of 70.4%. This perhaps resulted from higher Government sponsored below range sentences, which accounted for 34.8% of the total below range sentences imposed. Non-government sponsored below range sentences totaled 6.5%.

By contrast, according to testimony to the commission (pdf) by Probation Chief Joe Sanchez, in Texas' Western District, 78.7% of cases were sentenced within guideline range, meaning defendants received fewer sentence reductions. The Western District also saw far fewer government-sponsored downward departures, mostly for defendants who provided "substantial assistance" to the prosecution (i.e., for snitching).

What accounts for the 21-point difference between the rates of cases in Texas' Southern and Western districts sentenced within guideline range? I don't know the answer, but it's a striking number, as is the difference between the 5th Circuit's rate of downward departures overall and the national average. Texans, and especially those in the Western District, simply aren't receiving downward departures as often as defendants elsewhere, for reasons at which I could hardly guess. (Perhaps some knowledgeable commenters can shed some light on the question.)

Also noteworthy was testimony (pdf) by federal Bureau of Prisons Director Harley Lappin related to seldom-discussed overcrowding at federal facilities:

Over the past 20 years, the federal inmate population has increased more than 200%, from just under 65,000 to more than 209,000. The number of federal prisons has increased from 64 to 115, and our staff number more than 36,000 today. Over the past few years, we have not been able to build enough new facilities to keep up with the increase in the federal inmate population; tight budgets have also meant that we have not been able to increase our staffing to the level necessary to keep pace with the population growth. This has led to a dramatic increase in the inmate-to-staff ratio in our institutions, and significant crowding.

Our facilities are as crowded today as they have ever been (37% above capacity) and our inmate-to-staff ratio has increased more than 40% over the past decade – today our ratio is nearly 50% higher than that reported by the five largest State Departments of Corrections.

We are forced to double bunk nearly all of our high security inmates, many of whom are aggressive and violent and have various anti-social tendencies, and we are triple bunking nearly half of the remaining inmate population. None of our facilities were designed for triple bunking. With the inmate population expected to continue to increase by 7,000 inmates each year, we do not anticipate a reduction in the level of crowding in the near future.

According to Lappin, "The high levels of crowding and reduced staffing levels have substantially impacted the Bureau’s capacity to provide recidivism-reducing programs." Lappin lamented that what he considers the feds' "most important reentry program," Federal Prison Industries, is "dwindling rather than expanding." It's interesting to hear prison industries, which have come under fire here in Texas, described as the "most important reentry program" by the feds. (That's not how it's viewed by Texas state legislators.!)

Besides FPI, federal inmates who participate in education programs, said Lappin, "are 16% less likely to recidivate as compared to their non-participating peers." He also emphasized that "maintaining family and community ties is very important to inmate reentry."

See other testimony to the US Sentencing Commission via links to written testimony under the names of participants on last week's agenda.

Avoiding the issues

A reader points out that the Houston Chronicle has an editorial this morning which appears to obliquely reference Grits' criticism of the proposed Harris County jail expansion (I assume I'm among the "judicial issue bloggers" to whom they're reacting, though they offered no reciprocal linkage). The Chron thinks building more jail space would be just fine and dandy, thank you very much. Check it out. I reacted thusly in the comments:

Funny, the story doesn't mention the main criticisms that will resonate with voters: That a) it will cost a quarter-billion [dollars], b) it would cause property tax hikes during a recession, or c) that the Sheriff can't staff current facilities without overtime and doubleshifts and couldn't staff the new facility.

That's okay, there's a full year before any election. I'm sure the Chron will get around to discussing costs and whether the the county can afford it sometime before then, right?

As 2011 budget crisis looms, should most expensive prison units be closed?

It's always good to recognize when it's time to leave, and given the economic headaches facing the state, I think I understand why Texas Senate Finance Chairman Steve Ogden decided this was a good time to call it quits and let somebody else drive the car over the cliff in the 82nd Legislature. According to an item at the Texas Tribune by former deputy comptroller Billy Hamilton:

The last five months are the worst string of sales tax months since the tax was enacted in 1961 and are much worse than during the 2002-03 recession when collections fell by “only” 1.1 percent in 2002 and 1.7 percent in 2003.

State revenue forecasters have noticed national conditions, and the state’s current budget assumptions were built on projections of weak sales tax growth in 2009 and 2010. Weak growth, but still growth. Unfortunately, the tax declined by 2.7 percent in fiscal 2009 (the state fiscal year ends in August), and it is down by better than 12 percent so far this year. Results like those are guaranteed to produce heartburn aplenty for revenue forecasters.

The rest of the tax system isn’t providing much reason for comfort. Motor vehicle sales tax collections were down 22.5 percent in October. Oil and natural gas taxes have been down all year, although state forecasters saw that one coming after the price spike in 2008. Hotel taxes are sagging. Motor fuel taxes are down. The newly reformed state business franchise tax has underperformed projections from the start. Only alcohol and cigarette taxes are up right now. Given the economy, it figures.

The revenue situation could pose real problems for budget writers in 2011 if there isn’t some improvement soon. The state will already be without the federal stimulus dollars that filled a lot of holes in the current budget. Deteriorating revenue conditions could add to what already promises to be a tough budget year.

We're not alone, of course. Tax revenues are down in 44 states. But Texas was cushioned from the blow this year thanks to high oil prices and federal stimulus money, neither of which can be counted on going forward.

One of many big concerns this raises in the criminal justice arena is that budget cuts might spur lawmakers to scale back recent expansions of community corrections infrastructure, cutting treatment funding and non-prison programming in response to shrinking budgets. However, those programs have been such a great success (and will only fully roll out next spring) that it would be a mistake to shut them down just as taxpayers begin to get a return on their investment. (Funding these efforts, somewhat ironically, is part of Sen. Ogden's legacy as Finance Committee Chairman.)

Instead, given current trends, perhaps it's time to ask if the state could save money by closing one or more of the 112 prison units it currently operates? Just this summer, the Texas Department of Criminal Justice (TDCJ) was able to eliminate contracts for 1,900 beds in four county jails because population loads had declined and they were no longer needed. It doesn't seem unreasonable to suggest that the state might achieve a similar reduction in the coming biennium, assuming all the new diversion tools available are fully utilized at the local level.

Though staffing shortages have improved, TDCJ is still more than 1,000 guards short systemwide, so such cuts could likely be achieved without eliminating existing jobs, and with the added benefit of improving staffing and safety in other units.

In past meetings of the Senate Criminal Justice Committee, Chairman John Whitmire has made reference to a list in his possession detailing cost-per-prisoner at each TDCJ unit, a number which apparently varies quite widely, especially on the high end. Given the looming 2011 budget gap - and the likelihood that some will propose cutting diversion programming when money gets tight - I hope during the interim that legislators and the agency seriously consider how many fewer inmates they'd need to close the top one or two most expensive units on the list.

In lean budget times, state leaders must set priorities, and it's important to know when it's time to walk away from a bad deal. From the taxpayer's perspsective, it's a bigger priority to build on recent diversion successes than to prop up TDCJ's most antiquated, expensive units.

RELATED: Data on TDCJ Unit Age and Cost

Arkansas turns to early parole after prison budget slashed

Because Texas legislators were proactive about preventing prison crowding on the front end, so far we haven't had to release prisoners all at once in crisis mode. But that's been happening in other states, most recently with our neighbor to the northeast.

According to this brief AP report, a new prison "was scheduled to open partially this year [in Arkansas], but those plans were aborted when $6.6 million was slashed from the prison system’s budget." As a consequence, "the Arkansas Board of Corrections has approved early parole hearings for 648 inmates in an effort to ease prison crowding."

Parsing Post-Conviction Writs

Via Stand Down, the Fall issue of the American Bar Association's Criminal Justice magazine features a series of articles on Postconviction Practices. Here's the table of contents:

Priming Postconviction Representation
By Andrew E. Taslitz
Issue editor for the symposium on postconviction practices, Prof. Andrew Taslitz, Howard University School of Law, here introduces the four major features with an overview of the topic and an explanation of how each feature helps nonspecialists—both defense and prosecution—understand and address the needs of this often-forgotten population within the criminal justice system.

Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings
By Eve Brensike Primus
The author, a law professor and former trial and appellate defender, compares state and federal postconviciton review procedures, then examines the obstacles that bar successful postconviction claims: limited availability of evidentiary hearings, loss of witnesses due to delays, and no constitutional right to counsel at postconviction hearings, among others. Four defense options offer what she terms “partial solutions.”

Postconviction Claims of Innocence
By Myrna S. Raeder
Explaining the options and obstacles facing those who make postconviction claims of innocence, the author, a professor at Southwestern University Law School, notes that appellate remedies exist to ensure a fair trial and not to “second-guess” juries. She addresses the relief available under the Innocence Protection Act and the limitations of DNA testing after the Osborne decision. She also looks at the role of crime victims, the ethical obligations of prosecutors, the definition of “new” evidence, statutes of limitations on relevant claims, and “freestanding” constitutional claims of innocence.

Gubernatorial Clemency Powers: Justice or Mercy?
By Kathleen “Cookie” Ridolfi and Seth Gordon
Is a governor’s power of clemency strictly an act of mercy or is it an extension and, at time, correction to the course of justice? In this article the authors examine the two opposite sides of the coin to see how clemency has been applied by different governors and the legal reasoning employed. They conclude that clemency has been underutilized as a correction that is supported by both the courts and the Constitution as a fail-safe for an imperfect justice system. Included is a graph summarizing the procedures in all 50 states.

From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings
By J. McGregor Smyth, Jr.
Collateral consequences are the invisible, often unintended, punishments that those caught in the criminal justice system face. Indeed, the individual need not even be convicted of a crime—a simple arrest can initiate the process. Loss of job, eviction, deportation, severance of student loans, and denial of child custody are the triggers, the author argues, that so often lead to recidivism. Smyth suggests means by which defense and prosecution can reduce these effects, restore rights, and allow individuals a chance to reintegrate into society—rather than reoffend.

Relatedly, Scott Greenfield at Simple Justice has a post on the tension between innocence claims and finality of convictions, analyzing proposed New York legislation allowing judges to ignore procedural barriers when there is evidence of actual innocence. (There's a good discussion in the comments of the wisdom of legislatively restricting postconviction writs that's worth reading as well.)

I lobbied this session on behalf of the Innocence Project of Texas for similarly themed legislation in Texas carried by Sen. John Whitmire (SB 1976) which would have allowed habeas writ filers to overcome procedural barriers in cases involving flawed or outdated forensic science. Like other key innocence legislation that cleared the Senate, the bill appeared to be sailing toward passage, but it died during the House meltdown over Voter ID. (The Harris County DA had been the main opponent through most of the process, but we reached a compromise over language as the bill awaited passage in the House.)

There are at least two categories of cases with bad forensics I can think of offhand where Whitmire's legislation would be a boon to justice: Older arson cases and people convicted based on scent lineup "testimony" by Deputy Keith Pikett's bloodhounds. We're talking about a significant but not infinite number of cases: Based on back-of-the-envelope calculations, there have been perhaps 5,000 Texas felony convictions in the last 20 years involving those two types of forensic evidence. Certainly not all those are innocent and most won't have colorable claims, but it's likely a non-negligible, larger-than-usual percentage of people convicted on such testimony are actually innocent.

Those old cases deserve closer vetting and unless the Attorney General or someone else steps forward to do so comprehensively, one-at-a-time habeas writs are the only way to do it. So I'm hopeful the Texas Lege in 2011 will revisit the issue of limiting habeas hurdles in cases with flawed forensics. Perhaps the postconviction reforms they come up with in New York, and discussions like these from the ABA, will help inform and clarify that debate.

'Did US law spur Mexican meth sales?'

Well, of course it did!

The title of this post is the headline to a Christian Science Monitor story (11/22) describing an outcome that was not only predictable but, at the time, predicted, at least on this blog. The article opens:

The goal was to curb production of methamphetamine by cutting off key ingredients. It worked: Domestic production of methamphetamine fell. But a blow to meth labs in the United States became, in turn, a boon to a group in Mexico.

La Familia started manufacturing meth a few years earlier in the western state of Michoacán. By 2006, the group had emerged as a major distributor.

No one claims that the emergence of La Familia was the direct result of the US law. But US production of meth has decreased dramatically since 2004, according to the National Drug Intelligence Center's National Methamphetamine Threat Asses­sment of 2008.

A global report from the United Nations Office on Drugs and Crime from 2008 also shows a 92 percent decline in the number of large-capacity labs in the US from 2001 to 2007. But in the same period, methamphetamine seized along the Mexican border dramatically increased. (There was a significant dip again in 2007, but seizure numbers are still higher than they were in 2001.)

Experts say that the expansion of meth networks operated by Mexican organizations is a major factor in the sustained meth supplies in the US today, even with new import restrictions on chemicals in Mexico.

Some are not surprised.

Count me among those unsurprised to learn that the gang La Familia Michoacana rose to power on a lucrative wave of meth smuggling thanks to restrictions on pseudoephedrine in the US market. Rather than focus on treating addicts, for some reason US policymakers thought it was a better idea to force them to buy their meth from gangsters instead of making it at home. Homemade meth was bad news, but rural meth cooks weren't beheading police officers or gunning down children as is happening now in Mexico. Sometimes better the devil you know.

I've been beating the drum about this unintended but painfully obvious outcome on this blog for years. Por ejemplo:

• Texas' anti-meth law shifted production to Mexico; prevention and treatment underfunded
• Redefining drug war success
• Stop digging: US policies enriching Mexican drug cartels
• Are we winning the war on sniffles?
• Mexican meth: 'I'm afraid what we did was create a monster'
• More on the war on sniffles
  
• War on sniffles worsens public safety
  
• Pseudoephedrine restrictions raise fears of 'more addiction, more overdoses and more violence'
  
• Oklahoma meth law not working
  
• Tradeoffs: Mexican cartels boost meth involvement
  
• Oklahoma meth law overhyped
  

New Harris County jail would cost nearly $10 million annually to staff

It's already staggering to think that a proposed expansion of the Harris County jail would cost $256 million, or just more than a quarter-billion dollars. But that's really only the beginning because the agency would also have to staff the jail over and above basic construction costs.

How much are we talking about? Let's break it down. Sheriff Adrian Garcia proposes building 2,193 additional jail beds, and the Texas Commission on Jail Standards requires the facility to be staffed at a minimum ratio of one guard for every 48 inmates.

The jail must be staffed 24-7, or 168 hours per week per guard slot. If each guard works 40 hour weeks, that requires 4.2 guards per jailer slot.

So, 2,193/48 = 45.6875 guard slots to cover that many inmates. Call it 46 since you can't have a fraction of a guard. Multiplying 46 by 4.2 (the number of employees required to fill a jailer's position 24-7), we get a minimum 193 additional deputies the department would be forced to hire to staff the proposed facility.

According to the HCSO website, a first year correctional officer in Harris County makes $40,643. Adding in benefits, training, outfitting and other support for entry-level jailers, let's estimate total costs per employee at $50,000. (I'm guessing that may be a conservative figure.) That would put the additional annual staffing costs for new jail beds at $9,650,000, as a ballpark estimate. If the Sheriff chose to partially staff the new unit with overtime, those costs would rise even higher.

That $9.65 million per year comes on top of annual bond payments for the new facility. What's more, that's without including funding for any new supervisors or civilian staff (who are used for a variety of functions throughout the system), not to mention all the related utilities and operating costs involved.

$256 million sounds like a lot of money, but it's just the beginning of the financial burden Harris County taxpayers must bear if Sheriff Garcia's jail proposal is approved.

Harris County Sheriff's response to Grits jail building critique

Reacting to this Grits post proposing alternative solutions to jail building in Harris County, the Sheriff's Public Affairs director, former Houston Chronicle reporter Alan Bernstein, left these comments in rebuttal:

So much misinformation!

The new Central Processing Center would not add 2,500 beds. It would add about half that, and reserve most of those for special facilities for females and mentally ill inmates. Its prime function would be booking and releasing for the county and for the city, which would pay the county to take over those functions. Inmates would be sent to existing beds faster, and would be released faster when their jail stay is over. A new front door is not a new bedroom, si?

The current processing center is overrun, cramped, outmoded – presenting an unsafe situation that no one wants. The new facility would never “build our way out” of a jail population problem. The sheriff, the county budget director and others involved acknowledge that by 2014, when this new facility would open, there will have to be new policies in place across the entire justice system to avert a continuing inmate population then. Fortunately, all of those things are already under discussion.

The sheriff is moving forward on multiple fronts. George Parnham, chairman of the sheriff’s mental health advisory committee, last month briefed Commissioners Court about plans for a Reintegration Center for the mentally ill, as an example. But we have to plan now to avoid a continuation of the problems we already have with an outmoded, too-small inmate processing center.

The sheriff has not rejected “cite-and-release” but wants to make sure it would make things better, not backfire, before seriously considering it.

The jail has no “immigrant detainees” other than those who would be there as non-immigrants dealing with criminal charges under state law. The county jail does not house inmates solely because they are facing immigration charges.

The public defender’s office, new bonding policies and other ideas, all of which are beyond the sheriff’s authority, are also being considered already.

What has changed since the “jail” (wrong title, to be fair) bond was rejected in 2007 besides there now being a new sheriff? For one, there is now a Criminal Justice Coordinating Council of 11 elected officials who are hashing out the ideas presented on this blog. Many of these officials are restless and eager to move forward.

Alan Bernstein
Director of Public Affairs
Harris County Sheriff’s Office

Since I've been accused of spreading "misinformation," let's run through these arguments, shall we?

First, I should acknowledge that I misstated the number of proposed beds to be built, which is 2,193, not 2,500; the latter was the number of bed proposed in the 2007 bond election and I mistakenly transposed the figures. Reports the Chronicle, "Garcia's plan would establish a new booking center that could hold 2,193 prisoners. It would have about 1,200 beds and capacity to hold another 1,000 people for the processing involved in being booked into or released from jail." My apologies for the error. However, 2,193 is not "half" of 2,500.

The Sheriff is engaging in a bit of sleight of hand to claim that a new booking center shouldn't be counted as increased "capacity." In reality, existing cell space is being used for those purposes right now. So unless they shut down those beds - as Travis County did when they recently added a new wing - beds previously used for central booking will now be available for other uses. Who believes they won't just fill them up?

I also find it incredible (for someone accusing others of spreading "misinformation") for Bernstein to claim that "The sheriff has not rejected 'cite-and-release.'” That's simply false. Garcia has been asked to implement it and declined. What's more, Bernstein admits the Sheriff is not "seriously considering" the idea. While many overcrowding solutions require action by other actors in the system - the DA, judges, the commissioners court - the cite-and-release policy for his deputies is totally under Garcia's control. If the Sheriff won't do all he can to reduce overcrowding pressures using the tools available to him, IMO it's unjustified to ask voters for a quarter-billion dollar band aid.

Equally odd was the claim that "The jail has no 'immigrant detainees' other than those who would be there as non-immigrants dealing with criminal charges under state law." That's a red herring. The Harris jail does not house federal immigration prisoners, it's true, but it's also the case that Garcia has chosen to continue a program begun during the 2008 campaign season by his predecessor to identify and flag offenders for federal immigration holds. As I wrote last year about this program, "The only point of the training is to detain more people, but the jail is full. Other than making some abstract political statement, the practical function of [such] new programs ... is to fill up the jail with defendants who otherwise pose little threat to public safety."

I'm certainly glad to receive reassurance that "The public defender’s office, new bonding policies and other ideas, all of which are beyond the sheriff’s authority, are also being considered already." However, some of these things have been "considered" for years. My point was that implementation of those ideas should be prioritized over building more jail space. First things first.

The most important parts of Bernstein's response, at the end of the day, were the things he did not say. He did not dispute that the Sheriff couldn't staff new jail space with existing deputies. The jail currently requires overtime and double shifts to cover the beds they run now. And he didn't dispute that the jail will be a budget-buster, requiring a significant property tax increase during the midst of a recession. Those are the reasons voters rejected a similar jail bond proposal in 2007, and unless the economy turns around unexpectedly, it's hard to imagine those sentiments changing next year.

Odds and Ends

Here are several items from around the state this week that I've not found time to blog on but which deserve Grits readers' attention:

• State Rep. Rafael Anchia says Texas' DNA exonerees collectively deserve to be named "Texan of the Year."

• John Bradley wants Texas Forensic Science Commission members to destroy all their email correspondence.

• The TYC girls' unit in Brownwood received high marks in an audit preparing the facility for accreditation.
  

• The Corpus Christi Caller Times documents rising jail costs and overcrowding pressures at the Nueces County jail.

• Diana Claitor has an article in the Texas Observer about a chaplain at the Cameron County jail banned for advocating on behalf of inmates.

• An inmate broke out of the Bexar County jail with a safety pin.

• In Houston a young man snuck a gun into juvie detention past a metal detector which may have been turned off since 2006.

• Kevin Krause at the Dallas News Crime Blog details who's on the heavy hitting legal teams on both sides of the fight over investigating two Dallas County constables accused of misconduct.

• The Fort Worth Star-Telegram praises a museum exhibit called CSI: The Experience for giving insight into real-world workings of modern forensic labs. Since most TV shows including CSI laughably misrepresent the real-world functioning and accuracy of modern forensic best practices, color me skeptical, though I'm still interested in seeing the exhibit.

• As drug cartels begin to target Mexican federales who participate in US training, the Washington Post describes an unprecedented level of official cooperation between the US and Mexico in the fight against drug trafficking.

Harris County should reject expensive new jails until officials use available tools to reduce overcrowding

Ignoring voters' 2007 rejection of a proposed jail expansion, Harris County Sheriff Adrian Garcia has proposed spending a quarter-billion dollars to build 2,500 2,193 more jail beds ("Harris County Sheriff renews call for new jail," Nov. 21).

Really, though, an expanded jail would cost much more than that because the Sheriff can't adequately staff all the facilities he has now (most guards pull double shifts more than once per week, the Houston Chronicle reported last year), and the Sheriff already spends tens of millions of dollars annually on overtime. There aren't enough deputies in Harris County to staff a new jail.

I've little doubt there will be a significant tax hike associated with any new jail bond proposal - the jail voters rejected in 2007 would have increased the portion of Harris County's budget dedicated to criminal justice from 16% to 25%. And if staffing costs were included, that number would probably be higher.

Despite overcrowding pressures, I still oppose new jail building in Harris County because local officials haven't done enough to pursue diversion initiatives and have rejected less expensive tools available to solve the problem. For that matter, Sheriff Garcia is even more obstinate than his GOP predecessor (Garcia is a Democrat) in insisting that only expanding capacity - not diverting offenders from the jail - is acceptable to him as a solution. As long as that's the case, jail expansion isn't a serious proposal: It's folly to believe Harris County can build its way out of the problem and if that's all that's on the table it's not worth it.

What else could Harris County do? The Sheriff can't fix the problem on his own, but with the help of other local officials are a number of options which have been spelled out plenty of times on this blog. Here are a few topline suggestions:

The Sheriff and Houston PD could use authority granted by the Legislature in 2007 to give citations instead of arresting for certain low-level, non-violent Class B misdemeanors. Garcia has refused to even consider this option for his own deputies.

Garcia could reconsider his enthusiasm for filling up the jail with immigration detainees who committed petty misdemeanor offenses.

Judges could stop thwarting the will of the Legislature by requiring county jail time for first offenders on less-than-a-gram drug charges. About 1,200 such inmates are currently incarcerated in Harris County up to six months as a "condition" of probation, though in most other counties such offenders wouldn't be jailed. They could also reduce probation rolls through early release of successful probationers, which over time reduces the pool of probationers available to be revoked.

Judges could reduce bail amounts or utilize more personal bonds for offenders with low flight risks.

The commissioners court could establish a public defenders office to reduce pretrial detention times.

The District Attorney could rescind her predecessor's policy of sending drug paraphernalia to crime labs in order to secure felony possession instead of misdemeanor paraphernalia charges. Other counties may pursue a paraphernalia charge when an offender is found with a crack pipe - in Harris those are treated as state jail felonies and contribute significantly to clogging the jail and court dockets.

The probation department could more aggressively use progressive sanctions to reduce probation revocations. (They've been moving in this direction, but more could be done.)

These opportunities to reduce jail overcrowding have all been ignored for years in Harris County. That's why voters should reject an expensive new jail until local officials make a good-faith attempt to reduce overcrowding by other means. When new construction is the only solution offered for jail overcrowding, that's really no solution at all.

Jennifer Skeem on Sentencing and Mental Health

Yesterday morning I heard a provocative and informative talk at the Texas Judicial Advisory Council's biennial sentencing conference from Dr. Jennifer Skeem, who is a member of the MacArthur Research Network on Mandated Community Treatment, and Centers for Psychology and Law and Evidence-Based Corrections, on the subject of "Mental Health and Sentencing." Here are some of the highlights from her comments. (All statistics were sourced in her presentation.)

Skeem's big picture thesis: For most mentally ill offenders, especially repeaters, treatment and medication alone usually isn't enough to stop recidivism. Instead, research shows that people with severe mental illness tend to have more criminogenic (crime-causing) risk factors - bad neighborhoods, destructive peer groups, antisocial personality or cognition, etc. - and those correlate much more strongly to recidivism than does mental illness.

Generally stating the problem, said Skeem, people with mental illness are significantly overrepresented in the system. Rates of mental illness among offenders are 3 times the average for men, twice the average for women (who have higher rates generally). Overall, 14% of male defendants and 30% of women suffer from severe mental illness, she said, and 72% of those have a co-occurring substance abuse disorder. Most are supervised in the community on probation and they often "fail." People with severe mental illness are twice as likely to have their probation revoked for technical violations, she said.

In most jurisdictions (73% according to a national survey), sentencing of mentally ill offenders by judges is usually "non-specific," often amounting to checking an additional box on a form - usually labeled "mental health" - that would then authorize whatever treatment package the prison or probation department wants to apply.

There is an "implicit" model in current sentencing practices regarding the mentally ill that Skeem believes is misdirected. Mental illness is seen as the root of offender criminality, so the offender is sentenced to treatment. Once their symptoms are reduced, by this logic, supposedly criminality will decline.

In practice, she said, increased mental-health services often do not result in fewer arrests or recidivism gains, even if they successfully reduce symptoms in the patient. Improved symptoms and functioning typically don't reduce crime, she said (with the notable exception of those whose offenses involve domestic violence). Even "Cadillac" mental health treatment programs don't translate into improved public safety outcomes.

That's because only about one in ten offenses by people with severe mental illness result directly from their mental health condition, she said, citing what she described as "elegant" cutting-edge research. Substance abuse is statistically a bigger contributing factor, but even it doesn't fully explain the data. The real problem, said Skeem, is that mentally ill offenders tend to have more overall risk factors than their counterparts. She emphasized that this insight should not be used as an excuse to avoid treating mental illness and that offenders who needed it should absolutely receive treatment. But mental health treatment shouldn't be seen as a primary way of changing offender behavior, which most frequently stems from other causes.

Skeem encouraged judges not to treat mental illness as some sort of "master status," but instead to target "criminogenic needs" just like the evidence-based practices models designed for regular probation caseloads. In the Q&A afterward, I asked what that position implied for mental health courts and specialized probation caseloads focused on the mentally ill. But Skeem declined to criticize such programs, saying they were important but that their focus should shift.

Indeed, Skeem said that where specialty mental health programming by courts and probation departments had been successful, it was primarily because they're more likely to studiously apply evidence-based practices and problem solving approaches than in regular probation.

In particular, she said, use of "authoritarian" approaches by probation officers tend to produce worse outcomes for all probationers, but particularly those with severe mental illness. Use of threats and punishments by POs measurably affect whether outcomes improve, she said. Negative pressure on probationers predicts failure. So in some instances specialized caseloads have demonstrated success not because they treat mental health needs but because they're more likely to adopt these evidence-based probation approaches.

Skeem said that "stigma" associated with mental illness along with "paternalism" by those in the system led to worse outcomes for probationers with mental illness. Though the public views the mentally ill as scary people, statistically they're no more likely to be arrested than the rest of us, she said. However, once on probation, people with mental illness are much more likely to be revoked on technical violations. Surveys of probation officers show some don't like having the mentally ill on their caseloads and may revoke them or seek to shift them to other programs so they won't have to deal with them.

From the standpoint of reducing crime, the best approach for probationers with mental illness, she said, is to focus on screening and assessment aimed at identifying criminogenic factors generally, then using those specific assessments to inform sentencing, tailoring which evidence-based practices are used based on individual circumstances.

For probation officers, said Skeem, offender visits should become less about "monitoring" and more about discussion of criminogenic needs and risk mitigation. Research by Jim Bonta has shown that just as negative pressure predicts failure, time spent on problem solving and navigating criminogenic factors "correlates powerfully" with reducing recidivism.

If accurate - and Judge David Crain who runs Travis County's mental health court told me most of the presentation jibed with his experience - Skeem's insight about the causes of crime among mentally ill offenders suggest helpful ways to reduce crime overall. "What works" for the mentally ill appears to be pretty much what works with regular probationers, it's just that probation departments don't regularly apply evidence-based practices outside of these specialty caseloads. If those techniques were implemented more widely, it follows, the approach should reduce recidivism among both groups.

RELATED: Go here for links to Skeem's research.

US Sentencing Commission hears testimony on alternatives to incarceration, reentry

Yesterday morning I attended a portion of the regional hearing in Austin of the US Sentencing Commission, in particular a panel on "Alternatives to Incarceration, Reentry, and Community Impact."

Dallas District Attorney Craig Watkins was one of the panelists, and his comments were featured in coverage by the Associated Press. He opened by declaring that traditional crime fighting reacted to the offender but in the future should be proactive to prevent crime. Most prisoners are uneducated, unskilled and may have drug abuse issues, he said, so the public tends to have little sympathy for them. Yet the chances of improving public safety are greater, he said, if such folks can be raised up from their degraded circumstances and encouraged to change their lives - something that's not always encouraged by greater punishment.

Watkins described a program in his office for offenders aged 17-25 who commit "youthful indiscretions" in which they use "memo agreements" to dispose of misdemeanor charges without taking the case to court. He said this both saves the county money and reduces collateral consequences to the offender and community from a criminal conviction. Those who can't or won't be rehabilitated, he said, were identified in his office as "impact offenders" - folks who may have committed repeated low-level offenses, and he uses all the enhancement tools available to boost penalties higher and maximize their sentences.

Diana Dinitto of the UT School of Social Work told the Commission that US law improperly conflated drug use with drug crime. She said that most people in prison who need treatment don't get it, and that providing treatment while incarcerated creates additional barriers to success - particularly overcoming the troublesome transition period during reentry after leaving prison. She urged greater use of community-based treatments to avoid that transition period, and greater focus of supervision and treatment resources to ensuring "continuity of care" so offenders can maximize "sequential gains" accumulated during treatment.

Another major barrier to reentry, she said, is "discrimination" against people who commit drug crimes, particularly banning ex-offenders from receiving financial aid for college or participating in federal assistance programs. She pointed out that drug crimes are the only offenses that trigger the ban on college assistance, and said at a minimum students should only lose aid if the offense is committed while they're receiving it. She also complained that health insurance plans tend not to provide adequate coverage for substance abuse and mental health treatment.

Adam Gelb of the Pew Center on the States gave an excellent presentation that featured Texas' recent reforms as a prime example. See the detailed written materials he gave to the Commission here (pdf). The charts and graphs he presented make a strong case that mass incarceration is at best disassociated with recent crime reductions, since states that reduced incarceration have lowered crime as much or more than states with higher incarceration rates, getting a greater return on investment for criminal justice dollars.

One of the Commission members was particularly interested in Texas' legislation (see p. 13 of the presentation), but Gelb unfortunately gave a slightly incomplete depiction, telling the Commission there wasn't legislation per se but that the expansion of community corrections and treatment capacity was primarily done through the budget. That's not precisely accurate.

There actually was an accompanying bill in 2007 (several, really, but one main one) that included policy changes along with the new resources. The biggest change was to reduce probation lengths from 10 to 5 years for a wide range of nonviolent offenses from third degree felonies down, and to give offenders a chance to earn early release from probation through good behavior (at the judge's discretion) at either two years or half their probation term, whichever is later. In addition, the state used fiscal incentives to encourage local probation departments to implement progressive sanctions instead of revoking offenders to prison for low-level violations of their supervision conditions. Those changes combined to help reduce expanding probation rolls and hence the number of probation revocations.

Gelb said Texas' example showed that it isn't just the recent economic downturn causing states to reevaluate corrections policy, since Texas made our changes before the recent Wall Street collapse. That's true to an extent, but Texas definitely made those changes out of a desire to save money and avoid raising taxes, which would have been necessary if we'd built new prisons. That's the angle that got Republican leaders like Tom Craddick and Steve Ogden on board.

The fourth panelist, St. Louis University law prof Eric Miller, discussed the use of drug courts or "offender supervision courts," to use his phrase, arguing that in many cases drug courts are a "well meaning but flawed exit strategy" to keep offenders out of prison. They tend to have a "net widening" effect, he said, because they're too open ended and channel offenders into the system instead of away from it. He thinks judges should play a less active and more "managerial" role in drug courts.

Miller also made an excellent point that accountability is a "two-way street." He said if the offender must take responsibility for their actions, so should the government take responsibility for the harm caused by collateral consequences.

One commissioner suggested the testimony of the panelists meant that the idea of "expanding community correctional centers" in every jurisdiction was a "no brainer." I don't know much about federal community correctional centers, but this memo from the Bureau of Prisons describes them as "facilities in which offenders are free to leave the institution during approved hours for the purpose of participating in employment and other community programming activities." Sounds like a federal version of work-release.

There was also discussion of whether spending too much time - more than 3-4 months - in a halfway house upon leaving prison might be "counterproductive," which is the stance, commissioners said, taken by the head of the Bureau of Prisons. Nobody on the panel had an opinion on that question, but I'd be interested in learning more about the debate and the BOP's reasoning behind that stance.

After this panel I gave Mr. Watkins a ride to the airport then headed out to the state Judicial Advisory Council's biennial sentencing conference, some of which I'll be writing up this weekend. But the Sentencing Commission heard much more and written testimony from presenters who submitted it is available here, linked under the name of the presenter.