Friday, April 30, 2010

Terri Hodge headed for one-year stretch in federal pen

Former state Rep. Terri Hodge was sentenced to a year in federal prison after a slew of bigshots testified at her sentencing hearing asking for leniency, reports the Dallas News. According to the DMN Investigates Blog:

Jason Trahan says [Hodge's] supporters included: Dallas County state District Judge John Creuzot; former state Rep. Harryette Ehrhardt; current Houston-area state Rep. Dora Olivo; Brendolyn Rogers Johnson, a former member of the Texas Board of Pardons and Paroles; and James P. Graham, chairman of Palo Petroleum and former chairman of the Dallas Park and Recreation Board.

This quote particularly stood out for me from the news coverage:

Brendolyn Rogers Johnson, a former member of the Texas Board of Pardons and Paroles, spoke to the judge on Hodge's behalf.

"Ms. Hodge is a lady of integrity, compassion and is relentless in her pursuit of fairness and justice for all," Johnson said. "I have personally witnessed her work tirelessly for the people in her district, as well as those who called upon her for assistance."

"Compasssion"? For some. "Relentless"? Yes, but also ineffectual. However, "a lady of integrity"? No ma'am. She is not.

After the first time I mentioned these allegations on Grits, then-Rep. Hodge pidgeon-holed me at the capitol and angrily berated me, swearing up and down it was all a pack of lies, that when the case went to trial everyone would see she was innocent. Hodge wanted me to publish a followup including her declarations of innocence, but even then I didn't believe her. By that time the records had already been discovered regarding the developers paying her rent, and she simply had no credible explanation - indeed, she didn't even attempt to provide one.

I said the best I could do was wait till all the evidence was in to pass judgment, and now it's in. She was lying, not just to me but to everybody, to her constituents - maybe IMO even to herself - and she tried to cover it up by bullying those who crossed her. Terri Hodge lacked integrity at a fundamental level. And the array of Democratic politicians in Dallas who tolerate and excuse such behavior deserve nearly as much disapprobation as she does.

Yes, Terri Hodge fought the good fight on several issues I care about, but so did a lot of people who weren't taking bribes or illegally siphoning money from their campaign account. I'm tired of being asked to excuse corruption and avarice on the pretext of good intentions. At this particular point in history, that's not good enough anymore.

Related: Terri Hodge pleads guilty: Prisoner advocate to leave Lege in disgrace

Keller fined $100K for financial disclosure lapses

Remarkably, Texas Court of Criminal Appeals Judge Sharon Keller was fined $100,000 today by the Texas Ethics Commission. Here's the ruling (pdf) and initial coverage from the Dallas News, Houston Chronicle, Austin Chronicle, and Texas Watchdog.

After Judge Keller falsely pled poverty trying to get the state to pay for her lawyer last year when the Judicial Conduct Commission brought removal proceedings against her, she shoulda seen this coming. Big dollar figure, though, on the fine, perhaps in part because in addition to the property omissions she failed to disclose up to five companies on whose board of directors she sat. That's a bigger deal to me, even, than the property omissions. Perhaps her father really did buy property in Keller's name without her knowledge, as she says (a claim which I've always thought raised questions about Daddy's illicit behavior), but she didn't sit on five company boards without knowing about it.

If Judge Keller goes down over this, her scalp belongs to Steve McGonigle at the Dallas News who first broke the story. At least she ought to send Steve a thank you note for the $100,000 fine. One wonders, as well, what's become of the criminal complaint filed by Texans for Public Justice with the Travis County Attorney over many of the same transgressions.

Texas Watchdog calls it "one of the stiffest civil penalties meted out in recent memory by the Ethics Commission." I'll have more to say after I've read the 8-page document.

UPDATE: According to Morgan Smith at the Texas Tribune, Judge Keller received the highest penalty ever from the Ethics Commission. After this fine, she writes: "Harris County Commissioner Jerry Eversole, who faced a $75,000 fine last year for campaign spending violations, no longer holds the distinction of having received the largest penalty in TEC history. (He also had to reimburse another $41,357.10.)"

NUTHER UPDATE: I should add that the State Commission on Judicial Conduct has scheduled a hearing on June 18 in Austin to accept oral arguments in the ongoing removal proceedings against Judge Keller, or in the SCJC's parlance, Judge No. 96.

Did DA commit perjury to protect wife-murdering cop?

Via the DMN Investigates Blog:
Bruce Isaacks (right), as Denton County district attorney in 2004, refused to prosecute a police officer who had been indicted on a murder charge for his wife's death.

Medical authorities concluded that the woman had committed suicide, Isaacks swore then and later. The medical authorities swore that wasn't so, and after Isaacks was voted out of office, jurors finally got to hear the evidence. They convicted the cop of murder last year.

Now, finally, there's going to be an investigation of whether Isaacks committed perjury, Donna Fielder of the Denton Record-Chronicle reports today. She has dogged this story for years, with Isaacks denying wrongdoing all the while.

Donna's report made me think of a story my DMN colleague Reese Dunklin and I did in 2002. It looked at how Isaacks failed to prosecute two other well-connected men who were accused of domestic violence.

One of my favorite parts: Isaacks said he didn't prosecute one of the guys because a conviction could cost him his bail bond license. "There was going to be a disproportionate impact on that old boy," Isaacks told us. "He was going to lose his ability to earn a living."

The full story is well worth reading.

Still no Texas US Attorneys

A year and a quarter into the Obama administration, Texas still has no nominees for US Attorney. We had a nominee in the Eastern District who withdrew his name from consideration after months of delay, and now there's no telling when we may see these appointments, if they ever come at all. Morgan Smith at the Texas Tribune this morning sums up where we're at:

So what are the chances of the state getting a new nominee any time soon? The next best chance is the Western District’s Michael McCrum. According to a Senate staffer familiar with the process, his nomination is “forthcoming.” Along with Stevens, McCrum (who was also recommended by the Democratic House delegation) was on the list of nominees the Senators sent to the White House in early October. And, along with Stevens, he was the only candidate on the list who was also approved by the Democrats.

Once he secures the nomination, McCrum will have to endure the Senate confirmation process, which could last several months and could still result in his losing the nomination. The Senators and the House delegation have been unable to reach consensus on candidates in either the Northern and Southern districts, and now, with Steven’s withdrawal, the Eastern, meaning both factions may have to go back to the drawing board.

As time goes by, however, a U.S. attorney post becomes less attractive to possible candidates. "The deeper you go into an administration, the harder it is to get people to disrupt their lives, shut down their practices for maybe a year or two as U.S. attorneys, and say the Dems don't win” the next presidential election, says Coggins. “Then the person who has accepted the job for a year or two is back out on the streets — but they've got a one-year ban on lobbying their office and a lifetime ban on handling anything that was in the office, so it's a disruption to the practice for people to take the position."

After the hoopla in the Bush Administration over politicized US Attorney appointments, I've been surprised (bordering on appalled) at the delays. To me these are questions that should have been decided by Obama's transition team before he ever took office. Of course, it doesn't help that Texas' congressional delegation can't agree on any of the contenders, but partisan bickering is no excuse. The delay at this point begins to bespeak either incompetence or disregard.

Prosecution for school graffiti critiqued at senate hearing

There's not much MSM news out there from yesterday's Senate Criminal Justice Committee meeting (see the archived broadcast), but Odessa TV station KOSA had coverage of one of its locals who came to Austin to speak with them about school discipline.
As students across Texas are being criminally charged for drawing on school property, some state leaders are taking notice. Now, the “zero tolerance policy” is wearing on the patience of a state senator and some parents.

Puppy Dogs, butterflies and hearts: They can all get your child charged with a state jail felony if they're written on school property. 
 It's part of a statewide zero tolerance policy that mandates punishments regardless of the circumstances surrounding an incident. 
 And now it's drawing criticism at the State Capitol.

"We had examples today of kids six year old getting a citation - 10 years old getting a ticket written for disrupting the class. I don't know what that accomplishers", says State Senator, John Whitmire.

Senator John Whitmire led a senate criminal justice committee meeting today in Austin, where a father testified to his personal story. His child was handcuffed and booked on criminal charges after being accused of drawing on a bathroom wall.

"Graffiti that would reflect gang activity is much more severe than some student drawing a heart for her boyfriend", says Whitmire.

A 12-year-old New York girl was cuffed and arrested after writing on her desk with an erasable marker earlier this year. She's now suing the city authorities for a million dollars. 
In March, an ECISD student was charged after marking a piece of lab equipment, considered school property.

"It should all depend on what they wrote on there. Schools should give them detention or a referral or something", says Odessan, David Leyva.

"Most of the bathroom stalls are filled up", says 8th grader, Ryan Garcia.

Senator Whitmire questions the “no exception” style policy.

"Some of the school districts are writing hundreds and thousands of tickets each year and I'm concerned that some of it may be about raising revenue, instead of protecting our classrooms", he says.

"I don't think it's fair at all, as far as kids not knowing the severity of the situation", says Odessan, Shawn Hale.

Whitmire isn't calling for a law change just yet, but he is hoping for a little discretion.

"I'm just calling for common sense, people to use good judgment".

Whitmire says another meeting at the Capitol will be scheduled to hear more testimony and further discuss this issue in the near future.

Thursday, April 29, 2010

Ripped from the headlines: Crime show popularizes Willingham lookalike case

Michael Hall from Texas Monthly emails to say:
Several people have told me about last night's episode of Law and Order SVU, which features an arson case that is almost a note for note copy of the Willingham case. Here is a video that shows the highlights--including the long-haired arson expert who helps turn things around--AKA Gerald Hurst, Rollingwood's own. And check how the fighting young ADA (Sharon Stone!) fights for truth and justice when she finds the error of the prosecution's ways.
If it really were prosecutors ferreting out problems with arson science in the Willingham case instead of stalling investigations into flawed science, I'd feel less conflicted about this portrayal. In real life, of course, it would be a defense attorney finding and presenting that expert, which the courts and the Governor would then ignore before sending the defendant to his death. OTOH, maybe they're trying to show how the case might have come out differently if the prosecutor had performed his job more diligently. I haven't been able to stomach Law & Order or its many spinoffs in quite a few years. That program has really jumped the shark. Here's the excerpt Hall mentioned:

Senate panel discussing juvie justice topics

The Senate Criminal Justice Committee this morning will hear testimony on several critical juvenile justice issues. Here are the Interim Charges they'll be discussing:
Charge five:
Review the detention of juvenile offenders in local jails, state jails, and Texas Department of Criminal Justice prison units by examining conditions of confinement, including quality of education, mental health treatment and medical services, rehabilitative treatment, and equality of access to services for young female inmates. Review access to administrative and inspector general grievances in TDCJ facilities. Make recommendations for improving the system and reduce recidivism of juvenile offenders.

Charge eight:
Study and evaluate the success of juvenile probation pilot programs aimed at community-based diversion of youth from Texas Youth Commission facilities. Make recommendations for needed legislative action and additional programs to increase the number of delinquent youth successfully rehabilitated in their home communities.

Charge nine:
Consider the impact that secondary education school disciplinary laws and policies have on the juvenile justice system and the adult prison system. Recommend changes, if needed, to current law.
Here's their agenda, and here's a link to archived video of the hearing (updated).

Tribune app explores Texas prison units

The Texas Tribune has created an:
application to explore Texas' numerous prison units, and learn more about the 160,000 inmates housed inside them. Search for inmates by name or explore this app by crime types and specific prison units. You can also view all Death Row inmates.
From my own experience with TDCJ data, I'm a little skeptical of the data on inmates by crime types, which becomes murky because inmates may be convicted of multiple offenses.

Making matters worse, when I've gotten that information from TDCJ in the past it was poorly coded, often with different codes for the same offenses, and virtually impossible to decipher. For example, the Tribune data lists "Cocaine-possession" as a separate offense category, but it's not actually a separate crime under the law and there's probably overlap with those listed as being convicted of other drug crimes like possseing less than a gram or one to four grams of a controlled substance.

I did find especially interesting the Prison Units Map, which gives detailed information including Google Earth pics and names of inmates housed there for each TDCJ unit. That'll be a chore to keep updated accurately, but it's interesting to sort through the data.

CCA reinstates money laundering case against DeLay associates

In a bit of a Man Bites Dog episode, the Texas Court of Criminal Appeals unanimously decided yesterday to uphold the state's election laws banning corporate donations in elections. Reports Chuck Lindell at the Austin Statesman:

The Austin appeals court erred in deciding that the state’s money-laundering statute - used to prosecute associates of former U.S. House Majority Leader Tom DeLay - did not apply to transfers made via checks, the Texas Court of Criminal Appeals ruled today.

The court’s 9-0 decision also upheld the state’s election laws prohibiting corporations from making political contributions to candidates. DeLay’s associates - John Colyandro and Jim Ellis - had challenged the law as an unconstitutional infringement on First Amendment rights.

In 2002, the Public Integrity Section of the Travis County District charged Colyandro - working on behalf of Texans for a Republican Majority PAC - with accepting political contributions from corporations.

Colyandro and Ellis also were charged with money laundering by transferring $190,000 in corporate contributions to the Republican National Committee by a check, with a similar amount later returned to the state organization.

Several surprising things about this. The CCA has recently been a sharply divided court and it's notable to see a 9-0 vote on what's been a contentious, partisan case dragging out many years. Also, the ruling serves as vindication to a degree of former Travis County DA Ronnie Earle who pushed for these charges back in 2002 and was widely criticized with the 3rd Court of Appeals ruled against them. It's particularly ironic that Sharon Keller would write an opinion serving that function.

As for me, I don't particularly know how I feel about this law. I tend to fall on the money-is-speech end of the spectrum on campaign finance debates and personally have never seen a campaign-finance reform plan that didn't cause more problems than it solved. OTOH, in this case the question is that campaign operatives apparently knew what the law was - which agree or not they're obligated to obey - and actively took steps to circumvent it, so I get why they're being prosecuted. And saying checks didn't count as contributions was a slender reed indeed on which to throw out the case.

It'd be fascinating to know the behind-the-scenes politicking among CCA judges that explains how that 9-0 vote came to pass - who initially stood where, what the disagreements were, if any, and what compromises were made to achieve unanimity. I'll bet there's an interesting story to tell about how that result came about.

Wednesday, April 28, 2010

'Everything's bigger in Texas, like a $640 parking ticket'

The title of this post is the headline to a story out of Arlington from the Fort Worth Star Telegram. Here's the gist:
Tweed Clark stopped briefly at the Arlington Municipal Court to pay her daughter's $250 speeding ticket. So, how did Clark end up with a $640 parking violation of her own?

Clark admits that she parked in a yellow-striped space next to a handicap space for a few minutes March 8 but said she never saw a "no parking" sign until after an officer pointed it out to her while writing the ticket.

In Arlington, the fine for blocking access to a handicap parking space — the violation for which Clark was cited — is the same as for illegally parking in a handicap space.

Clark, who is fighting the citation, said she has written and called Mayor Robert Cluck and other city leaders asking them to consider reducing the fine. She also wrote a jeer in the Star-Telegram calling the city "crazy" for how much it charges.

"It's outrageous," Clark said. "I wasn't driving drunk. I wasn't speeding in a school zone."

If Clark had been speeding 35 mph over the limit in a school zone, her fine would have been $324, about half of the parking ticket cost, according to the court's website.

Glimpses from the House Corrections Committee

I turned on for a moment today's House Corrections Committee meeting (UPDATE: see the archived broadcast here) and heard these tidbits:

Is Project Rio helping ex-offenders get state jobs?
State Rep. Jerry Madden asked somebody from TDCJ how Project Rio, Texas' main job assistance program for ex-prisoners, was working. He was perfunctorily told it was "working well." Madden followed up by saying he'd spoken to folks from the Department of Transportation who told him they'd like to hire ex-prisoners but had never heard of Project Rio. "Oh really!" was the startled response. Chairman McReynolds smoothed over the awkward moment, which was met by laughter and a colleague telling Madden he was being "controversial," quickly moving onto TDCJ healthcare topics.

Number of inmates growing who will never leave infirmary beds.
Fifty percent of UTMB inmates have chronic illnesses, including physical and mental health problems. There is a 0-4 rating with zero meaning healthy and 4 meaning they spend much or all their time in an infirmary bed. The percentage of those rated zero is 50-52%. Last year, TDCJ went from 50 to 60% of category 4 offenders who will never leave those beds. As a result, infirmary beds are growing scarce.

A doctor complained that physicians submit applications for medical parole but most are denied. Some of these people, he said, one doesn't need to be a parole specialist or medical expert to see that "their ability to commit a crime is zero."

The committee was also told that TDCJ averages 2,400 HIV diagnosed inmates, 1,800 of them who receive medication. A large number of them (600 ) are "co-located at the Stiles unit." Collectively they account for more than 40% of TDCJ pharmaceutical costs. (Just to give credit where it's due, the activist group ACT-UP has been trying to draw attention to that fact for many years.)

The Tech sector handles 22% of inmates. Sicker inmates are housed in the UTMB sector to be closer to the hospital in Galveston and to take advantage of price reductions given by the feds to hospitals treating indigents (Tech doesn't have one).

Also, given current growth rates, TDCJ will outgrow its capacity to care for dialysis patients within a couple of years. Fifty percent of healthcare costs get spent on the seventeen percent of TDCJ inmates who are 50 and older. The number of inmates fifty and older is growing at a 16% per year rate, the committee was told, even though overall inmate growth has leveled off. These offenders are much more expensive to treat than their younger, healthier counterparts.

"What's more compromising than money?"

The title of this post is the headline to a New York Times editorial yesterday scolding the US Supreme Court for not accepting the Charles Hood case. According to the Grey Lady:

The Supreme Court abdicated its responsibility to address fundamental questions of ethics and fairness when it declined to review the case of Charles Dean Hood, an inmate on death row in Texas.

The one-line order, issued without comment from any of the justices, left in place an egregiously tainted 1990 double-murder conviction. Eighteen years after Mr. Hood was sentenced to death, the state trial judge, Verla Sue Holland, and Tom O’Connell, then the Collin County district attorney, admitted that they had had a secret affair that appears to have ended not long before the trial.

After considering these seamy circumstances, the Texas Court of Criminal Appeals last year denied Mr. Hood’s request for a new trial, ruling — incredibly — that he took too long to raise the conflict of interest and should be executed. Yet it took a court-issued subpoena to get the two officials to confirm their long-rumored affair. Their success in hiding their relationship should not count against Mr. Hood. ...

The Supreme Court correctly ruled last year that millions of dollars in campaign spending on behalf of a judge’s election bid created an intolerable “probability of actual bias.” The court decided that Chief Justice Brent Benjamin, of the West Virginia Supreme Court of Appeals, was required to recuse himself from a case involving Massey Energy, one of the country’s biggest coal companies, after Massey’s chief executive spent $3 million to help get Justice Benjamin elected.

The right to a fair hearing, before an impartial judge, is at the heart of the nation’s judicial system. If money raises a serious question about that impartiality, love seems to be at least as worrisome. The Supreme Court, sadly, failed in its duty to clearly draw that line.

Though the Times said the affair appeared to end before the trial, we really don't know. Mr. O'Connell at first said the relationship continued past the trial, then he recanted when Judge Holland insisted it ended earlier. He now says he must have misremembered and agrees with Judge Holland on the timing. However, these are people who violated ethical canons for years to keep from being held accountable. Both say they were in love. Do we really believe their equivocating, self serving declaration that the affair had ended, but they remained close friends thereafter and even traveled together on vacations without any sexual liaison? To me it seems to beggar belief. I'm inclined to believe Mr. O'Connell was telling the truth the first time - that the relationship ended in 1991 or '92. However no one really knows but them.

The Times is right this is a tremendous disgrace. Hood's new punishment phase trial doesn't really mitigate the harm to the judiciary's credibility, but it provides sufficient cover for SCOTUS to ignore the situation for now and lets the Texas Court of Criminal Appeals kick the ball down the road a few years.

See related Grits coverage:

Tuesday, April 27, 2010

Homicides kill three times as many kids as drunk drivers

I've got a pet peeve against hyperbolic overstatements by tough-on-crime mavens who think, because the targets of their false statements are unpopular, no one will call them on putting out bad information. So I took umbrage in the comments to a post over at Sentencing Law & Policy when a commenter announced that, " drunk drivers kill enough people to fill a mid sized CITY 45,000-55,000 PEOPLE A YEAR." I replied that:
your numbers are way off - according to NHTSA, there were 11,773 alcohol related traffic fatalities in 2008 - 8,027 of those were the drunk drivers themselves. (And of course, NHTSA reminds us that "The term 'alcohol-impaired' does not indicate that a crash or a fatality was caused by alcohol impairment.") The total number of US auto accident deaths of all types in 2008 was 37,261. You might be remembering some "all accidents" stat from decades ago, but the data you put forth aren't remotely accurate, even if putting them in all caps MAKES THEM SEEM REALLY ALARMING.
To me, the 8,027 are Darwin Award winners. They took a risk and paid with their lives. The other 3,746 represent how many people were killed by drunk drivers nationwide. It's still a significant number, but not the biggest problem society faces: By comparison, for example, largely preventable hospital infections account for 99,000 deaths each year nationwide.

Predictably playing the "what about the children?" card, the original commenter responded:
11,773 individuals any guess what percentage of thoat were children? that is still 1000% if not more children killed by drunks than sex offenders. Therefore if the excuse that sex offenders are so so SO dangerous we need to track eveyr move they make 24/7 THE REST OF THEIR LIVES....where are the same 1 strike your OUT laws for DUI! Where are the registry's for drunks also the residence and working restrictions? of course theirs should be reversed They should be required to live no FARTEHR than 1,000 from a bar or liquor store so they have no reaosn to get into a car and kill people!
I replied that:

On the number of children, from the same NHTSA report I linked to earlier, "In 2008, a total of 1,347 children age 14 and younger were killed in motor vehicle traffic crashes. Of those 1,347 fatalities, 216 (16%) occurred in alcohol-impaired-driving crashes." Another 34 kids were pedestrians hit by drunks.

I agree 250 kids nationwide is a significant number, but is it really "1000% more" than the number killed by sex offenders? That would mean sex offenders kill 25 kids or less per year. Maybe that's accurate, I don't know the data. I only pointed out that you're dramatically overstating the problem when you falsely bloviate that "drunk drivers kill enough people to fill a mid sized CITY 45,000-55,000 PEOPLE A YEAR."

One more bit of context: By comparison to the 250 kids killed in 2008 by drunk drivers, according to the CDC 756 children aged 1-14 were murdered in 2006, the last year for which they have records. (Go here for data.) Not all of those, of course, were sexual assaults, but I find zero support for your contention that drunk driving is killing 1000% more kids than predators assaulting them. Strictly by the numbers, the latter is a more common problem.

I'm not sure I'd have guessed before looking up the hard data that drunk drivers accounted for one-third the number of child deaths compared to homicide. Congenital anomalies and cancer, by contrast, are the big kid killers, accounting for thousands of child deaths. Everybody's entitled to their own opinions, but not their own facts.

Driver Responsibility program has 'devastating' effect on court system; hospitals only opposition to reform

See coverage of yesterday's hearing on the Driver Responsibility rules from the Dallas News, the Texas Tribune and News 8 Austin. I thought the event went well, though the Public Safety Commission apparently expected a larger crowd. Here's a notable highlight from Terrence Stutz's Morning News story:

David Hodges, who served as a state district judge based in McLennan County, told the panel that the Texas Driver Responsibility Program has had a "devastating" effect on the Texas court system, and judges across the state are reporting at least two years of pending driving-while-intoxicated cases as more defendants seek trials.

"Our criminal justice system is supposed to be about changing behavior and making our streets safer, but there is no evidence that this program is making our streets safer," said Hodges, now judicial liaison for the Texas Center for the Judiciary, which provides training and support for judges.

Not only are more DWI cases being dismissed, but others are resulting in lesser charges, such as reckless driving, to help reduce the huge backlog, he noted.

"There is credible research to show that this program has actually created a new class of criminals that we're having to deal with," said Ho dges.

Another DWI court judge from Williamson County, James Twine, asked that judges be given discretion to reduce or eliminate surcharges as incentive for participation in probation and treatment programming, arguing like Hodges that the surcharge is a disincentive for changing offender behavior.

Representatives from several reform groups, including the Texas Fair Defense Project, the Texas Criminal Justice Coalition, and the ACLU of Texas testified in favor of more aggressive reforms to the program. In addition, the agency received 188 written comments about the rules.

The only opposition came from three speakers, all associated with hospitals, who opposed the rule change because they support maximizing money from surcharges going to hospitals for trauma care. (49.5% of DRP revenue goes to trauma care, 49.5% to state general revenue, and 1% to DPS for administration.) However, it wasn't always clear the hospitals were attacking the amendments at hand so much as expressing fear that the program might be eliminated altogether: Rick Antonisse of the North Central Texas Trauma Regional Advisory Council said reformers shouldn't advocate its elimination without finding an alternative funding source for hospitals.

Several things about that: First, the Public Safety Commission has no authority to abolish the program, only to create Indigency and Incentive programs for low-income drivers and to grant Amnesty to address the backlog of people who haven't paid. Neither the proposal put forward by DPS staff nor the alternative rules suggested by advocates would do that, so the reactions mostly addressed a proposal (ending the program) that wasn't on the table.

Indeed, there's little reason to believe inidgent people are presently paying these high fees. There's a reason nearly 2/3 go unpaid. In fact, there's a strong argument that the Amnesty suggestion from advocates would increase revenue in the short term by getting at least some money from presently noncompliant drivers. If DPS pushed and advertised an amnesty program aggressively, perhaps having the vendor promote it just like they regularly seek collections by mail and phone, it could be a significant source of short-term revenue. For example, if noncompliant drivers could pay $250 to clear their surcharges and get their licenses back and 1/3 of non-compliant drivers took advantage, it would raise $100 million.

The fact is, most people who get these surcharges cannot or do not pay them, either because they're too high, too confusing, or people just can't accept that they all of a sudden owe money on tickets they've already paid, and for three years, no less. Comments from hospitals all ignored this dysfunction and claimed them getting their money was more important than any other consideration.

I'm sure it is, to them, but that seems shortshighted in part because, by demanding money for uncompensated care from this source, they're generating extra uncompensated care because so many more drivers now have no license or insurance. A back of the envelope calculation finds that those 1.2 million unlicensed, uninsured drivers will be involved in more than 35,000 auto accidents each year, increasing uncompensated care for trauma centers and causing even greater, additional costs for many other people.

What's more, DRP surcharges are boosting joblessness among those who lose their licenses, reducing state tax revenue and the number of insured consumers treated at trauma centers, further harming hospitals via uncompensated care.

I don't know whether those uncompensated care costs equal or exceed what hospitals are getting from the program, but really the Legislature should find a source for hospitals that doesn't include so many hidden costs and unintended consequences.

In any event, those are concerns for next session, when one presumes (or at least hopes) that legislators will take another run at abolishing the Driver Responsibility surcharge altogether: I don't believe the changes suggested in the near-term would significantly reduce income to the fund, and an Amnesty program could increase revenue.

The Public Safety Commission will meet today and there's an item on their agenda for a discussion of the hearing and public comments submitted, though no action is scheduled to be taken. Commissioners were mostly mum throughout yesterday's hearing, but may reveal more today about how they may proceed on these rules. I've got to spend time today on something somebody will actually pay me for and cannot attend, but I'm dying to hear what they have to say.

Monday, April 26, 2010

Hearing on Driver Responsibility rules this afternoon

I'll be headed to the capitol this afternoon when the Public Safety Commission considers proposed indigency rules to the Driver Responsibility surcharge. See my column from last week's Dallas Morning News on the topic. Here are the logistical details of today's meeting for anyone interested:


Public Safety Commission Meeting

April 26, 2010, 3:00 p. m. – 7:00 p.m.

Senate Committee Hearing Room E1.028, and Room E1.016 for overflow

State Capitol Extension Bldg.

Austin , TX 78701

The Public Safety Commission will convene as posted to receive and consider public comment from all interested persons regarding adoption of proposed new 37 Texas Administrative Code (TAC) §15.163 and repeal of existing 37 TAC§15.163 regarding the Driver Responsibility Amnesty, Incentive and Indigence Program. The proposals are made under the authority of Texas Transportation Code, §708.157. The proposals were published in the March 5, 2010, issue of the Texas Register (35 TexReg 1940).

The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Each individual will be allotted 5 minutes for an oral statement. Those speaking may also turn in written comments. There will be no open discussion during the hearing. No formal action will be taken in this meeting.

Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print, Braille, are requested to contact Rebekah Hibbs at (512) 424-2953, three work days prior to the meeting so that appropriate arrangements can be made.

Best case: The PSC comes back at its next meeting after today's rules hearing and instructs staff to upgrade the indigency program and create Amnesty and Incentive programs to encourage driver compliance. (Ideally they'd also instruct DPS to work on the rules with interested advocacy groups, who until now have been shut out of the process.)

The Legislature in 2007 punted the task of fixing this bad law to the Public Safety Commission, giving them authority to create Amnesty, Incentive and Indigency options for the program. Then in 2009 the Lege required an Indigency program be created, with specific requirements that must be in place by 2011.

If what's before them today is all that passes, the new indigency program won't be widely used and won't amount to much. The surcharges will still be too high for most people with incomes below 125% of federal poverty guidelines, and no Amnesty or Incentive program was proposed for other drivers. But it doesn't have to be that way: The PSC has an opportunity to do something much more important, to structure a path back to legality for the 1.2 million Texas drivers who've lost their driver's license over DRP fees. Nearly 2/3 of surcharges go unpaid.

In response to these shortcomings, an Appendix to Grits' comments to the PSC suggested a set of proposed amendments, developed in collaboration with Amanda Marzullo at the Texas Fair Defense Project, which would improve the rules in four key ways:
  • Create an Amnesty program to clear up noncompliance backlog
  • Use accurate documentation for the indigency application process
  • Make language comply with 2011 statute waiving surcharges for indigents
  • Create incentives to encourage compliance for other low-income drivers
These changes would blunt the worst impacts of the program and create remedies for all drivers so disqualified instead of just indigent ones. While in an ideal world I'd prefer the Legislature abolish the program, these amendments would go a long way toward mitigating its bad effects. There's no good reason for the PSC not to use all the tools the Legislature put in their toolbox.

Of course, the politically safe thing for commissioners to do would be to sign off on the staff recommendations and kick the ball down the road until the Lege changes the law. But commissioners have an opportunity, and the authority, to do more: They could substantially reform the program through rulemaking, and they should.

A recent national poll found that eight in ten Americans distrust government, and IMO situations like this are a great example of why: A dysfunctional government program which, if the DPS staff proposal is enacted, will continue to limp along, not working, even though the agency has the authority and an opportunity to fix it. That'll be my message to the PSC this afternoon: Show us that government can work, that every seemingly soluble problem isn't doomed to interminably gridlock. You have the authority to improve the lives of up to 1.2 million Texans and make the roadways safer. Why not seize it?

We're talking about 1.2 million drivers now functioning outside the system - no driver license, no insurance - because of this program. Strict enforcement has worsened the problems the law was created to solve, which is why the Legislature gave commissioners complete authority to restructure it. These are all Republican appointees, so in theory for small-government conservatives this should be a no-brainer: How many times in a career of public service do you get a chance to empower up to 1.2 million of your fellow Texans to get the government off their backs and its hands out of their wallets?

This is one of those times. Just three commissioners could decide; they've got all the authority they need, plus suggested alternative language to work from if staff continues to resist their directives. I'm cautiously optimistic that a majority appear to want to go further than DPS staff suggested, but it's still an against-the-odds kind of fight, the prospects for which we'll know much more about after this afternoon's hearing.

Related, recent Grits posts:

Willingham case stalled in seemingly stacked panel at forensic commission

Two stories on the Forensic Science Commission capture the essence of of last week's meeting:
Between them they make most of the points which have been rumbling around my head since on the subject.

Most importantly: If there was any question before now, FSC Chairman John Bradley will succeed in delaying any final resolution (and my guess is, even public consideration) of the Todd Willingham case until after the November election. They spent much of their time last week discussing lab backlog issues that aren't even under the commission's purview.

Bradley tried to limit membership on the panel investigating the Willingham case to Gov. Perry's three new appointees, adding to my fear that he's put the Willingham investigation in a stacked committee. At least the other two new commissioners had the decency to feel a sense of embarrassment at the crassness of this blatant hijacking and insisted that Dr. Sarah Kerrigan also be included. Describing these machinations, Casey wrote that Mr. Bradley had:
named Tarrant County Chief Medical Examiner Dr. Nizam Peerwani to both three-member panels, making some commission members wonder if Bradley sees Peerwani as an ally.

One intriguing byplay at Friday's meeting suggested that if Peerwani is a Bradley ally, he's not totally in his pocket.

Hint of tension

Bradley had named Kerrigan, one of those most vocally resistant to his proposed policies, as a member of the Willingham committee.

But Bradley announced that she had asked to be replaced “for personal reasons,” a common euphemism. He also indicated that she thought the committee ought to be bigger and include the commission's only defense attorney to balance DA Bradley, a hint at the tension between the two.

Bradley named Fort Worth defense attorney Lance Evans to replace Kerrigan, but Evans noted that this resulted in a committee made up entirely of new appointees. He suggested that a member who had been part of the investigation from the beginning should be added or they could “perhaps meet as a committee of the whole (commission).”

Persistence pays

Bradley resisted, saying the committee could invite another member to attend a meeting. But Peerwani said he thought Kerrigan should be added as a member. Bradley once again said she could be invited, but Peerwani persisted and won.

It was a small victory — the notion that the committee investigating the forensic science that helped lead to a man's execution should include as many scientists as lawyers — but I'm afraid these days we have to celebrate even the small victories.

The question: Are small victories meaningful or is the outcome already predetermined? Casey suggests we're at the beginning of what "promises to be a protracted fight over whether the [Forensic Science Commission] will become a national model of how to improve the use of science in fighting crime, or just another secretive, bureaucratic body perceived as protecting licensed professionals rather than policing them." But I don't see a "protracted fight." Nobody presently on the commission is pushing to make it a "national model." At best some on the commission are resisting, but under its new chairman's leadership the agency has already become a "secretive, bureaucratic body perceived as protecting licensed professionals rather than policing them." There's no need to speculate: We're there now.


Sunday, April 25, 2010

Here and there: Briefs

Here are several items that would probably deserve full blog posts each if I had time:

Do we need constables in the 21st century?
The Amarillo Globe News renews a debate we've had here on Grits: Do we need constables in the modern era? Personally I think that in larger cities, especially, these obscure offices have seen mission creep and expansion of duties that is both risky and redundant for these smallish, typically less professional agencies.

Trusties and contraband
Mike Ward at the Statesman has a story on contraband smuggling via loosely guarded TDCJ "trusty camps," following up on an incident where a Sugarland inmate went to Walmart on a shopping excursion.

7-year sentence for prison guard who murdered co-worker
Two remarkable recent crime stories involving prison guards merit note: In Hale County a former prison guard was convicted and sentenced to seven years for murdering a former prison co-worker in what was described as an act of "sudden passion." (Compare that murder sentence to some recent Texas drug sentences handed down.) Interestingly, former Tulia prosecutor Terry McEachern defended the killer prison guard. Meanwhile, a Beaumont prison guard's wife who earlier had claimed arsonists burned down their home because of prejudice against law enforcement has now confessed to the crime.

The quandary presented by high-speed chases
Neither of these stories might merit a blog post in and of themselves, but together they're a timely reminder that police pursuits are a major source of on-the-job injury for officers, bystanders and suspects and need to be reined in. USA Today had a story this week titled "Deaths lead police to question high speed chases," while cops in Amarillo shot a teenager who rabbited and led them on a high speed chase after being pulled over for an alleged traffic violation. Police have said "there were other reasons officers wanted to speak with the driver of the van," which makes me wonder why they chose to approach him at a traffic stop when "on at least two other occasions have attempted to pull over the van only to have the driver flee"? If you know who the fellow is, why not approach him at his home or wait till he gets where he's going and exits the vehicle?

The days may soon be coming to an end when law enforcement feels justified tearing up the roadways after traffic violators like characters from Smokey and the Bandit or The Dukes of Hazard. There are too many things that can go wrong, and in many cases other ways to apprehend the suspects. The USA Today story found that, "Innocent bystanders account for one-third of those who are killed in high-speed police chases."

Should crimnal defense lawyers carry malpractice insurance?
Rick Casey at the Houston Chronicle focused recently on whether criminal defense lawyers should carry malpractice insurance. Mark Bennett explains why most in the criminal defense bar don't do so, but thinks maybe they should. One of Mark's commenters shrewdly pointed out that "It could be argued that one of the best defenses against malpractice suits is NOT having liability insurance: it makes it much harder to collect, and fewer lawyers would be willing to 'roll the dice.'”

Theft from who? Irrelevant, says appellate court
When attempting to convict a defendant of theft, must the state prove the alleged victim actually owned the property in question? Via Liberty and Justice for Y'all, we learn that the Fourth Court of Appeals out of San Antonio answered that question in the negative. Before now, according to the dissent, "In no recorded case has a court ever held a defendant guilty of theft absent proof of ownership as alleged and charged."

Saturday, April 24, 2010

Family, debt, risk and private prisons

Coupla more private prison stories worth noting:

A Family Affair
Forrest Wilder at the Texas Observer has a story on the Lucio family's relationships to a private prison firm, which has hired state Rep. Eddie Lucio III to lobby the city of Weslaco for a private prison deal. His father, a sitting state senator, performed consulting work for the same company in 2003-2004.

Debt, Risk and the Geo Group
Texas Prison Bidness brings word that the Geo Group gobbled up yet another competitor, adding to its already enormous debt load and making it the second largest private prison company on the planet, behind Corrections Corporation of America. Reported the Financial Times:
The Geo Group offered about $385m for Cornell Companies in a mixture of cash and stock, valuing the company at about $24.96 a share. The company will also take on about $300m of Cornell debt.
The Geo Group's most recent 10K statement is really quite an amazing read, for anyone interested, particularly the lengthy section on risk factors, where the possibility is raised that a quarter-billion dollars in unsecured bonds issued privately last fall might be considered a "fraudulent conveyance" if the company defaults and a bankruptcy judge ever takes a close look at the deal.

Facing a mountain of debt, mostly from acquiring competitors, this appears to be a pretty critical year for the Geo Group, with contracts up for renewal on almost one in five beds they operate. According to the 10-K: "As of January 3, 2010, eleven of our facility management contracts representing 10,407 beds are scheduled to expire on or before December 31, 2010, unless renewed by the customer at its sole option. These contracts represented 19.3% of our consolidated revenues for the fiscal year ended January 3, 2010."

Other risks identified in Geo's 10-K include:
  • Our significant level of indebtedness could adversely affect our financial condition and prevent us from fulfilling our debt service obligations.
  • A decrease in occupancy levels could cause a decrease in revenues and profitability.
  • State budgetary constraints may have a material adverse impact on us.
  • Public resistance to privatization of correctional and detention facilities could result in our inability to obtain new contracts or the loss of existing contracts, which could have a material adverse effect on our business, financial condition and results of operations.
  • Adverse publicity may negatively impact our ability to retain existing contracts and obtain new contracts.
  • We may face community opposition to facility location, which may adversely affect our ability to obtain new contracts.
  • We may not be able to obtain or maintain the insurance levels required by our government contracts.

'Doomsday Deal': Prison-for-profit scheme in Waco going bust for lack of inmates

In Waco, reported the Herald-Tribune ("A new jail in McLennan County, but no inmates to fill it," April 23), "The new jail on State Highway 6 has an impressively low detention population: zero." Now a private prison scheme that two years ago was touted as a multi-million dollar moneymaker for the county appears to be headed into a financial death spiral:
Community Education Centers, the New Jersey-based detention company under contract to manage and operate the jail, has been unable to secure agreements with state and federal agencies to house inmates.

Meanwhile, CEC must begin repaying the $49 million in project revenue bonds that financed the construction of the jail. The $313,000 monthly debt service is to be paid using revenue from housing inmates, placing the company under a crunch to fill beds.

While funds already have been set aside for the first payment of $1.9 million due in June, CEC must begin making revenue soon or risk defaulting on the bonds. Doing so would mean the county loses the new jail.

CEC wants some relief from the county to cover the financial obligation, but some commissioners say getting involved could end up costing taxpayers.

Naturally, CEC wants the county to bail them out. This is becoming a too-familiar tale, and for good measure, in this particular case let me throw in an "I told you so." This outcome was as predictable as it was unnecessary and ill-advised. The same thing happened with CEC in Johnson County, the Trib noted:

CEC exercised an escape clause last month to pull out of managing Johnson County jails with one more year to go on a three-year contract.

Argeropulos said Johnson County’s jail population had dropped by 25 percent, causing CEC to lose money.

A separate entity was created to issue the bonds, so county taxpayers aren't formally on the hook, though I suspect it would affect the county's bond rating in the event of default.

Herbert Bristow, attorney for the county, said if CEC defaulted on repaying the bonds, the county would not be liable to make payments.

The McLennan County Public Facility Corp., a seven-member board including the commissioners court, issued the bonds in 2009.

“It was done by design to insulate the county,” Bristow said. “But the end result is if it’s a doomsday deal, and we can’t find any prisoners to put in it . . . the bondholders have the right to take the property back and get whatever value there is in it.”

This is happening all over the state: This month Littlefield, TX had its bond rating lowered and now, according to Texas Prison Bidness, must "reduce spending in other areas to pay a debt service on an empty jail." Down in Webb County, which is presently considering a similar deal, commissioners should take these as cautionary tales - harbingers of the dangers of speculative, entrepreneurial jail building.

Private prisons enjoyed a market "bubble" over the last several years that appears to be bursting. I suspect this won't be the last time we see one of these speculative jail building deals fall through after construction is complete. These companies have figured out how to make their risk public and the profits private. That's a smart business model for them, one supposes, but Waco's example shows why it's not such a great idea for taxpayers.

Friday, April 23, 2010

Online broadcast of Forensic Science Commission meeting today

Via the national Innocence Project blog, this morning.
from 9:30 a.m. to 3 p.m., the Texas Forensic Science Commission will convene to discuss forensic developments and the investigations into the cases of Cameron Todd Willingham and Ernest Willis, among other items. The Innocence Project will broadcast the entire meeting live online here.
Maybe this will be less painful than their last meeting. See pre-meeting commentary from the Dallas News and the Austin Statesman.

LIVEBLOG: I haven't listened to the whole hearing (the audio's awfully soft) and today must attend to other matters, but here are a few tidbits I did catch:

(12:00) Despite a poor reception for the idea at their last meeting, the first substantive question on the agenda after a canned presentation on lab backlogs was whether to hire a full-time "General Counsel" for the Commission, which only meets once per quarter. A few initial thoughts: First, this commission is about science, but the chair wants the only staffer to be a lawyer (commission coordinator Leigh Tomlin is employed by Sam Houston State). Second, the FSC budget is small and money spent on a lawyer can't be spent on investigations into science. Also, the Attorney General's rep said she had no reason to believe their office couldn't handle the extra duties being described. They want to hire someone in the $60-80K range, but the AG rep told the commission if they wanted someone with any specific forensic science or criminal law background, it would probably cost them more than that. Still, they voted to move forward on the idea and will get back a more detailed job description at their next meeting.

(12:25): Just realized Rodger Jones at the Dallas News is livebogging the meeting in much more detail than I'll have time to do today. Go here for his coverage.

ALSO: According to the Austin Statesman, this morning the FSC voted to expand the committee focused on the Todd Willingham investigation committee, now to include all three of the Governor's recent appointees on it, plus Dr. Sarah Kerrigan. The newest member suggested that the FSC take up the case as a committee of the whole, but Chairman Bradley shot down that idea because "if the subcommittee were enlarged to include the entire nine-member commission — or at least a quorum — the meetings would have to be public because of Texas’ open meeting requirements," reported Corrie MacLaggan. I still think the Commission should reconsider their rules to clarify what they were promised when they were first approved: That cases already in the pipeline wouldn't have to go through the new committee process.

Advisory panel leaning against innocence commission

Dave Montgomery from the Fort Worth Star-Telegram reports that:
An advisory panel bearing the name of a wrongfully convicted inmate from Fort Worth is apparently leaning against recommending the creation of a state innocence commission amid concerns that it would create a new bureaucracy and duplicate work already being performed in Texas law schools.

The concept of an innocence commission to investigate whether convictions are wrongful was among several recommendations discussed Thursday by the Timothy Cole Advisory Panel. Cole, who died in prison after being convicted for a sexual assault that he didn't commit, was recently given a posthumous pardon by Gov. Rick Perry.

The panel deferred votes until its next meeting, but members generally expressed reservations about creating an innocence commission. Some members called for bolstering similar work now under way in four Texas law schools.

The University of Texas at Austin, Texas Tech, the University of Houston and Texas Southern University have projects or clinics that examine questionable convictions. Similar projects are in operation across the country.

The commission's stance generally tracks that of Perry, who believes a commission "would create an added layer of government," said Perry spokeswoman Allison Castle. Perry's deputy general counsel, Mary Anne Wiley, is a member of the panel.

"The governor's focus is working to ensure wrongful convictions don't happen in the first place," Castle said, "like supporting the law school innocence project, creating expert attorneys who specialize in post conviction death penalty cases and encouraging the creation of more public defender offices across the state to ensure competent counsel by attorneys who specialize in death penalty cases."

Brookins found guilty of TYC sex abuse charges; sentencing today

A jury found former TYC administrator Ray Brookins guilty of molesting youth under his supervision at a Texas youth prison in West Texas. It sounds like prosecutors from the Attorney General came loaded for bear and Brookins didn't have much of a defense beyond pointing out the victim was a criminal. The sentencing portion of the trial will conclude today. Disturbing details came out at trial. According to the Odessa American:

In two full days of testimony, 11 witnesses testified against Brookins, including the victim himself. Prosecutors also presented DNA evidence that linked the victim’s sperm to Brookins’ office. Brookins did not testify, and the defense offered no witnesses of its own.

After the jury returned, prosecutors quickly pivoted to the punishment phase and began calling additional witnesses to testify about their sexual encounters with Brookins in an effort to show a pattern of abuse.

“I wish I could tell you that we didn’t have any more victims to tell you about, but we do,” Attorney General Adrienne McFarland said in her opening statement to the punishment phase. “There’s only one place that Ray Brookins belongs, and that’s the penitentiary.”

The first witness called during the penalty phase said he was coerced into giving Brookins oral sex about 15 years ago when Brookins was a captain at a prison in Cotulla. He said he met Brookins when he worked as a barber, and he described behavior eerily familiar to jurors in which he was reportedly summoned from his dorm after hours to spend time alone with Brookins.

Another former inmate testified that Brookins ordered him to strip naked during a search and bend over.

George E. Boepple, a former West Texas State School employee, told the jury that Brookins allowed inmates to be confined in restraints for up to 20 hours at a time.

“We would have youth in restraints for much longer than policy allowed,” said Boepple, who also testified during the guilty phase of the trial. “Some had urinated on themselves.”

KOSA TV out of Odessa reported that the:

verdict brings the West Texas State School sex abuse scandal full circle for many. In fact, six years after the misconduct took place, investigators and employees were too emotional to talk on camera.

Half a decade after his investigation in Pyote, where he found evidence incriminating Ray Brookins and John Paul Hernandez, Texas Ranger Brian Burzynski, was overcome with emotion today after the verdict was announced.

After three hours of deliberation, the jury found Brookins guilty of abusing a teenage inmate in 2004. Witness testimony throughout the trial supported the evidence collected by Burzynski in 2005.

"It was something that I couldn't fix, that I knew needed to be fixed so now that's been done", he said during an interview in 2007.

He made that comment while being honored at the State Capital for his investigation, that led to a major shake up at the Texas Youth Commission.

The upbeat demeanor Ray Brookins displayed Monday was long gone after the verdict came down. Current and former state school employees cried and breathed sighs of relief after the verdict.

Eleven witnesses, including the victim himself, testified against Brookins, in addition to DNA evidence placing the victim in Brookins' office.

"It's a shame that when I look back, there were so many opportunities for a lot of other people to have stopped the abuse", said Burzynski in 2007.

So many thoughts on this, I may let the news sink in for a bit before discussing it in much detail. Because of Ray Brookins, many dozens of people lost their jobs, the facility where he was a supervisor no longer even exists, and Texas' entire youth prison system was depopulated, with total inmate numbers declining by 52.9% after the scandal broke. The agency has fundamentally transformed as a result of this episode - mostly for the better, though it was touch and go there for a while. One wishes it were possible to spur criminal justice improvements without painful, embarrassing scandals driving the conversation, but that appears to be how major reforms usually get done in this state.

I will note that the verdict supplies vindication for Ranger Burzynski, and it should also be mentioned the story would never have surfaced without reporter Nate Blakeslee, then of the Texas Observer, and capitol staffer Alison Brock with state Rep. Sylvester Turner's office. I'm particularly happy for those three today, and congrats are due as well to prosecutors at the Attorney General, who took over the case when the local DA refused to go forward with the charges.

Thursday, April 22, 2010

Dallas News column on Driver Responsibility rules

The Dallas Morning News tomorrow is publishing an op ed I wrote advocating improvements to the proposed indigency rules for the DPS Driver Responsibility surcharge, and I noticed this evening they've placed a version on line. Nothing earth shattering for Grits readers, I imagine, who've heard many of the arguments before, but give it a read if you're interested.

The "intractable problem" for prosecutors created by the Driver Responsibility surcharge

Over at DA Confidential, "The Assistant" (a Texas assistant county attorney who blogs anonymously) has a post describing the "intractable problem" of driving-with-license-suspended cases and the Driver Responsibility surcharge, offering an especially enlightened prosecutorial approach.
Here’s the problem. For many people, their license is suspended as the result of a DWI or for not having insurance. Then after they’re convicted of that offense, in addition to the fines and court costs, the State imposes a “driver responsibility fee.” This Orwellian named program requires payments of $200 to $1,000 a year for three years in order to reinstate the defendant’s driver’s license. If you don’t pay the fees, your license is suspended. This creates a Catch-22 that Grits for Breakfast has covered in more depth than I could possibly give here.

So you see how this plays out- Joe Citizen gets pulled over and doesn’t have insurance because he doesn’t think he can afford it. Joe pays his fine and court costs on the ticket, but then can’t pay the driver responsibility fees, so his license stays suspended. On top of that, he still doesn’t buy insurance. So a few months later, Joe gets pulled over again, and this time arrested for Class B DWLS. He sits across my desk after announcing that he wants to plead guilty and … What?

Any conviction is going to: 1) Have more fine and court costs, 2) either place him on probation with a $35 a month fee OR send him to county jail for a while and risk losing his job, 3) impose another driver responsibility surcharge he can’t pay, and 4) push him further away financially from being able to get a valid license and insurance. At the same time, Joe’s conduct is blatantly criminal and in my estimation very blameworthy. Joe knows he’s not allowed to drive, and chose to anyway. By driving without a license and insurance, he’s essentially shifted ALL the risk of driving a motor vehicle to other people. It doesn’t matter how poorly he drives, someone else is going to pay for it. On a personally infuriating note, the cost of my car insurance coverage for uninsured motorists is HIGHER here in Texas that it was on the urban east coast.

So here’s what I usually work out. Joe pleads not guilty, and has the case set for trial in a month or two. I tell Joe that if he can bring me proof that he’s gotten his license re-instated, then I’ll dismiss the case. The goal of the law is to make sure that people who drive have a license, so I figure if we can accomplish that goal, then there’s no need to proceed with the criminal case. This way, Joe can use the money he would have otherwise paid in fines and court costs on this case to pay off his surcharges and buy insurance. This, theoretically, should also help my too-high insurance rates.
This is a dilemma faced by every misdemeanor prosecutor in the state, and most are not handling the situation nearly as thoughtfully as this writer. I find particularly commendable the use of prosecutorial discretion to compel the driver to become licensed and legal instead of viewing his job as simply doling out punishment to wrongdoers, even those whose actions are "blatantly criminal and in my estimation very blameworthy." The Assistant clearly recognizes that the practical aspects outweigh moralizing platitudes, and it makes sense where possible to provide drivers a path back to legality instead of merely piling on punishments, which are financially impossible for lots of folks.

Generally you won't find prosecutors having much good to say about the Driver Responsibility program, a view with which I find myself in happy agreement. Williamson County DA John Bradley has called the program "taxation masquerading as a public safety initiative." In February, Nolan County Attorney Lisa Peterson posted on the prosecutors' association message board that:
Thanks to the suspended license and no insurance law, our DWLI filings are over the top...again. As each conviction carries yet another surcharge, I'm trying to find some alternatives. We don't have mass transit in this rural county, and several arrests have been of people who work the graveyard shift trying to get to work at the cement plant or wall board plants. Reason for stop has been "saw Johnnie, knew he had no DL, so pulled over" - no bad driving.

My crystal ball is broken - but - are we heading to a time when MOST drivers will be unlicensed? What then?
What then, indeed! On Monday the Public Safety Commission will consider indigency rules for the Driver Responsibility Program, but that won't fix the dilemma these prosecutors are describing. For that purpose, there needs to be a broader Amnesty program that lets drivers get out from under their fees by giving them a path to become licensed and legal.

See related, recent Grits posts:

TDCJ regional release facilities announced soon, but state jails already send offenders straight home

An announcement will be made in a couple of weeks, according to the Abilene Reporter-News, which TDCJ facilities will become "regional release" facilities, a move spurred in large part by high gas prices a couple of years back. Presently TDCJ prison inmates are all released from Huntsville. However, the article also points out an exception to that practice that's been going on for some time:

According to TDCJ, last year there were 72,000 prisoners released in Texas. Of those, about 30,000 were released from drug programs and state jails like those prisoners released from the Walker Sayle Unit in Breckenridge and the Havins Unit in Brownwood.

“Some released inmates from the Walker Sayle Unit (a substance abuse felony punishment facility in Breckenridge) have been brought by van to Abilene’s Greyhound bus terminal for release and transfer to their hometowns, for several years,” Bruce said. “This process is carried out on at least a weekly basis.”

Officials at the bus station, say ex-offenders have not caused any problems there, so far.

“We have never had any problems, not one little speck,” said Glenn Pinkerton, a ticket agent at Greyhound, located on Cedar Street.

This bit of new information makes me wonder: If TDCJ already releases 30,000 people a year from state jails and treatment facilities, why did the agency choose to use regional release facilities for the others? Why pay the extra transportation costs, etc.? (The legislation gave the agency the option to do it either way.) If it's possible to release inmates directly from state jails, it should be possible in TDCJ's institutional division.

Wednesday, April 21, 2010

Southern states looking to Texas for corrections budget solutions

A writer from the Georgia Public Policy Foundation gives Texas credit for "Thinking Outside the Cell." Here's a notable tidbit placing Texas in context with other southern states:

Texas is by no means alone in creative corrections system thinking. But it is among few southern states achieving success. Georgia, Alabama, Louisiana and Florida all reported increased prison populations last year. The best result produced by a Southern state other than Texas was Mississippi, which reduced its incarcerated adult population by 1,233. That was the sixth best performance nationally.

Pew cites three reasons for the Mississippi success: A reduction in minimum time served before parole eligibility, improved tools to predict which inmates were good early release candidates and a low recidivism rate: just 0.2 percent of those approved for early release compared to 10.4 percent nationally.

Mississippi reduced the minimum prison time requirement for non-violent felons from 85 percent to 25 percent of the sentence before parole consideration eligibility. Nearly 3,100 inmates were granted early release between July 2008 and August 2009, with the corresponding 0.2 percent recidivism rate. South Carolina was the only other Southern state to reduce its prison population last year, down 1 percent.

Overcriminalization run amok

Actual headline from WFAA: "Dallas woman faces felony as punishment for pruning."

Do you suppose felony charges were the only tool available to keep this 67-year old attorney from pruning the thicket in a greenbelt down the street from her house?

Poverty, lack of transportation cause probation revocation

A reader forwards this ruling from Texas Second Court of Appeals affirming a two-year sentence for a woman for violating her probation terms. What were the violations? She:
  • failed to timely notify her probation officer of an address change
  • failed to complete anger-control classes
  • failed to attend the Personal Money Power Program, and
  • failed to pay required fees
The circumstances around these violations, though, were poverty and a lack of transportation. According to the opinion:
she did not report to her probation officer one month and did not attend the Personal Money Power Program because she did not have transportation. She also said that she could not afford the anger-control classes. Soliz testified that she is responsible for seven children, six of her own children and one grandchild, and that she and the children live with her mother. Soliz explained that she works at a Days Inn and recently purchased a car for $1,300. She said that the trial court had placed her on community supervision for the underlying offense because she had slapped her daughter after her daughter had called her a bitch.
Judge George Gallagher in the 396th District Court in Tarrant County determined she'd violated her conditions of probation and sentenced Ms. Soliz to two years incarceration. The appellate court affirmed the decision, citing case law to the effect that "proof of any one violation is sufficient to support revocation order."

So now a mother of six who had a job, was paying taxes, and who had just purchased a car to solve her transportation issues, will have taxpayers foot the bill for her room and board for two years while the kids go to grandma or foster care. This arguably punishes her kids and her mother even more than her!

What's more, as the reader who pointed this out to me opined, "This has absolutely NOTHING to do with what this woman took the plea for! This has NOTHING to do with the crime she was charged with! Where is the public outrage on sending people to prison over being poor? Not owning a car?"

This case highlights how so much of the "strong probation" trend in Texas has been a function of Texas judges exercising discretion to use progressive sanctions instead of revoking offenders to prison over unpaid fees or missed meetings. But when there's no new crime, maybe some of that discretion should be reined in. There has to be some intermediate sanction short of prison available in such instances, and there has to be a way to get judges to use them.