Detox centers instead of jail? Harris DA offers creative solution to intractable problem

Harris County District Attorney Pat Lykos was especially full of excellent ideas today, as mentioned in the previous post, but in particular I should highlight her suggestion that the state authorize "detox centers besides jail," so that every intoxicated person doesn't automatically become a criminal defendant.

I think that's a terrific idea. Trying to imagine what that might look like, in my mind's eye, I thought of Otis on the old Andy Griffith Show checking himself into the jail at the end of a Saturday night bender: Nobody ever seemed to charge Otis with any crime or bother bringing him before a judge, but he didn't hurt anybody driving home. TV references aside, though, it's really not a comedic suggestion: Intoxication offenses for both drugs and alcohol may cost society more to prosecute and punish than we benefit from the defendant's long-term incapacitation, but there still needs to be a short-term solution to get the drunk or drugged person off the street. A community-based detox center separate from the justice system might be just the ticket.

Lykos also felt that people with mental illness are mishandled throughout the system, expressing frustration in particular that individuals would be re-diagnosed at different points in the system "over and over again." She said that if the committee chose to revamp how Texas treats mentally ill offenders, she is "ready to be a spear carrier" for them. "I want to see y'all cut the Gordian Knot," she said.

What do folks think of the detox center idea?

The end of state jails?

Of several notable moments over the last day or so I want to share with readers from my trip to Houston, first on this list has to be Chairman Jim McReynolds of the Texas House Corrections Committee questioning whether the state jail system has "outlived" its usefullnes, and the surprisingly warm reception the notion received at the committee's hearing in Houston this morning.

McReynolds suggested state jails could be replaced with "intermediate sanctions facilities" (ISFs) like those created by the Lege in 2007 that included treatment and services aimed at reducing recidivism. After hearing testimony that state jail inmates (particularly those with mental health diagnoses) had among the highest recidivism rates of Texas prisoners, the chairman questioned continuing to "bifurcate" ISFs and state jails. A big problem: State jail time is served day for day so offenders - even those with mental illness or other reentry barriers - are not supervised and don't have access to services available to parolees.

Harris County District Attorney Pat Lykos readily (and surprisingly, to me) agreed, telling McReynolds that "state jails were ill-conceived from the very beginning." She said the committee revisiting the issue was a "ray of sunshine."

Relatedly, Judge Caprice Cosper of Harris County's Office of Criminal Justice Coordination told the committee substance abuse is the driving factor in jail crowding and court caseloads. Of 51,850 felony cases in Harris County in 2009, she said, 47% of those were state jail felonies. In 2000, she said, Harris County had around 5,900 "less than a gram" state jail felony drug cases. By 2008 that number rose to 11,700. That's far and away the most common felony offense in Harris County, she said; the second highest category of crime had 1,600 offenses that year.

Cosper said that while "incapacitation" was usually considered a primary purpose of incarceration, believing that is an effective approach for substance abuse is "naive." Substance abusers can do jail-time "standing on their heads," said the long-time Republican judge, but living clean in the free world is much harder for them.

The unanswered question, of course: If state jail felonies are eliminated, what happens to those offense levels? Possessing less than a gram of a controlled substance, for example, is a state jail felony: Would it become a 3rd degree felony or a Class A misdemeanor if the state jail system were abolished? Similar questions would remain for an array of other offenses. But it's a fascinating suggestion and I'll bet we haven't heard the last of it.

Help support Grits coverage with contribution

I'm headed to Houston today, primarily to attend a House Corrections Committee hearing tomorrow morning on reentry services, but also to take up Alan Bernstein from the Harris County Sheriff's Office on his offer of a jail tour, in which he will make the case why Harris County needs to expand their facilities. Obviously Grits for Breakfast readers will get a full report from both events upon my return, if not sooner (depending on my schedule and wifi access). I'm only able to cover out-of-town events, purchase resource materials, pay for open records requests, etc., because of donations from generous readers, including several who make $8 monthly 'subscription' contributions and whoever else hits the donate button in the right-hand column.

I've not done a contribution request for the blog in quite a while, but after travel costs, hotel room, etc., for this trip, Grits' resources for such extras are running a little low. What's more, there are several more events in the near future I'd hoped to attend: In particular, I've been invited by the Senate Transportation and Homeland Security Committee to testify on the Driver Responsibility surcharge at an upcoming hearing in Plano, and there's a conference I'd hoped to attend to develop some specific, blog-related skills.

So if you're a regular Grits reader who thinks what's going on here is valuable - particularly if you want to help support this blog's efforts on the Driver Responsibility surcharge - use the buttons below to make a one-time donation to Grits (Paypal payment) or donate $8 monthly (Paypal subscribe).

Regrettably, Grits is not a non-profit so the system will charge sales tax. Several people in recent months have encouraged me to formally organize the blog as a non-profit to be able to take tax-deductible contributions, and perhaps that needs to happen. But for now, this is what we've got to work with and I'd appreciate any help readers can provide. Thanks a lot, folks.

What if any impact on Texas from extension of Second Amendment by SCOTUS to the states?

Yesterday the US Supreme Court decided that the Second Amendment right to bear arms applies to the states. As Matthew Scarola at SCOTUSBlog put it, "Today’s opinion in McDonald v. City of Chicago means that for the first time, state and local governments’ gun regulations must comport with the Second Amendment’s protection of the right 'to keep and bear Arms.'”

Scarola thinks "McDonald’s extension of the Second Amendment to state and local gun regulation will undoubtedly prompt a flood of firearm-related litigation – especially because the Court did not specify a standard of review." Along those lines, “Justice Stevens lamented, 'today’s decision  . . . could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right . . . under a standard of review we have not even established.'”

Willl Texas see any successful gun rights litigation based on McDonald? We're already a pretty gun friendly state, but there are also stiff penalties for certain gun crimes. I wonder if any Texas statutes - or perhaps ordinances by municipalities - may be implicated by the McDonald decision?

Doug Berman notes that the court held "individual gun rights are 'fundamental,' they help safeguard another 'basic right,' and they must not be treated as 'second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees'."  This raises the question of whether felons can lose their "fundamental" right to bear arms after their sentence is complete; after all, they don't lose their rights to free speech, which is also a "fundamental" and "basic right." Scarola also raised this question, saying "In McDonald, the court left this area of the law in turmoil."

I've neither read the massive opinion nor given the state-level implications much thought, but let me know in the comments what if any implications might result in Texas from the extension of a "basic" federal right to bear arms to the states?

Make crime labs independent from law enforcement

News of serious problems at the Houston PD fingerprint lab prompted attorney Patrick McCann to author a thoughtful column in the Houston Chronicle ("Let's get experts to test evidence," June 26) that advocates making crime labs independent from law enforcement. The article concludes:

We have been subjected to a decade of unfolding scandals at HPD's lab, on everything from DNA, to toxicology, to firearms, to outright falsification of lab results, to failure to even review evidence in capital and other serious cases. Now we discover that their fingerprint "identification" section is not only unworthy of the name, but should be renamed the "mis-identification" section, because their techs are unable to get this right even on a murder case where someone's life could literally be at stake. Do not get me wrong — the other labs run by law enforcement have all had their share of problems. The Department of Public Safety regional system was rocked by its own scandal a few years ago, and is now plagued by tremendous backlogs that result in justice being denied for the innocent and needlessly delayed for the guilty. The DPS actually hired a terminated DNA supervisor whom even HPD found was unsuitable after it was revealed she helped technicians "excel" on their proficiency exams. In some of the surrounding counties, questionable dog-scent evidence is being used to convict people, and some of these defendants are now suing the counties that held them based upon this type of junk science. These mistakes cost the taxpayers millions in case reviews, and retesting and lawyer fees for cases that should have been done right the first time. They have also resulted in grave injustice and false imprisonment, as HPD's own internal disciplinary records have shown.

Enough is enough. Although this is admittedly a difficult budget year, either the state of Texas in the upcoming legislative session or the regional counties and cities should come together and simply remove all handling of forensic evidence from law enforcement once and for all. Our leaders should create a regional crime lab, actually run by scientists, perhaps under a university, and not under any elected sheriff or appointed law enforcement officer, that can run actual, neutral and competent forensic testing untainted by pressure and uncorrupted by malfeasance or negligence. The people accused of crimes are owed that much. We as taxpayers are owed that much.

It is time for us to end this round robin of scandal and put science where it belongs - in the hands of independent scientists whose only goal is the truth.

Out4Life

An op ed column by state Rep. Jerry Madden and the former Virginia Attorney General in the Austin Statesman on Saturday begins with the following analogy regarding reentry:

No rational parent would toss the car keys to a teenager who has never driven before and expect him to drive through traffic without causing casualties. Likewise, pushing prisoners back into our communities without the right preparation and resources and expecting them to stay out of trouble is foolhardy. The results for our peace and security are certainly disastrous.

They're advocating for a prison ministry program focused on reentry called Out4Life that's meeting this week in San Antonio:

Prison Fellowship, the world's largest outreach to prisoners and their families, is partnering with the Texas Department of Criminal Justice to bring the Out4Life movement to Texas. Out4Life is a holistic approach to prisoner re-entry that draws together government agencies and community organizations to help offenders stay on the straight and narrow. Out4Life Texas will hold a kick-off conference Monday through Wednesday in San Antonio. Representatives from government, business and nonprofit organizations will begin the process of building local coalitions across the state. These coalitions will work together, sharing resources and information, to make sure that ex-prisoners re-entering the community have the best opportunity for success.

The Out4Life movement is receiving a warm reception across the country. Conferences already have been held in Louisiana, Arkansas, Tennessee, Georgia, Michigan, Ohio, Minnesota and Arizona. There, coalitions are forming and growing. As Larry Norris, recently retired director of Arkansas' Department of Corrections, said, "Successful prisoner re-entry can only occur when government, business, faith and community leaders work together. The Out4Life conference is focused on developing ways we can all come together to make our communities safer."

Out4Life can bring similar benefit to Texas. By surrounding ex-prisoners with the programs, services and relationships they need, Texas can help keep these men and women on the road to becoming peaceful, contributing members of society.

The politicization of grief at Dallas PD

I've avoided before now discussing a terrible incident in Dallas which occurred last week, where the son of Dallas' brand-spanking new police chief, David Brown, shot and killed two people including a Lancaster police officer following what's being described as a "psychotic breakdown." Other officers then killed Brown, Jr.. When all was done, three fathers died that Father's Day - a tragedy of unspeakable proportions for all involved.

The situation was complicated by the fact that Lancaster police had visited the apartment earlier in response to reported domestic violence and failed to arrest Brown's son, David Jr., who they found threatening his children with a belt for not reading their Bibles. As James Ragland wrote: "The tragedy has thrust the men and women in blue in highly unusual, if not uncharted, territory – mourning the loss of a fallen colleague; sympathizing with the respected and accomplished father of the killer; grieving the death of another innocent victim and father, Jeremy McMillian." 

I normally don't write about such critical incidents until more information has come out (and the Dallas News Crime Blog is the place to go for breaking details). Judging whether Brown, Jr. should have been arrested earlier, whether he would have been if his father weren't police chief, are questions that require more information than is now available. My heart goes out to everyone involved including Chief Brown, who now finds himself at the center of an almost Shakespearean tragedy, full of anguish and irony. Bob Ray Sanders had an excellent column on the situation.

Even before mourners were finished burying their dead, the calls for Brown's resignation began. Reporter Scott Goldstein first posed the question, and the comment sections of Dallas News stories are increasingly filled with self-identified police officers demanding his resignation.

The police unions smell blood in the water and their leaders are using the situation to undermine the chief's authority. Brown's union critics found their first opportunity to use the situation against the chief after his son's funeral, when a deputy chief impromptu assigned traffic cops to escort the son's funeral procession. Everywhere in response are outraged declarations that police were assigned to accompany a "copkiller" on the way to the grave.

Upon reading these complaints, I immediately wondered to myself if Dallas' most famous copkiller - Lee Harvey Oswald, who murdered Officer J.D. Tippit that fateful day in addition to President Kennedy back in November 1963 - received a police escort? A quick search discovered this video on YouTube of Oswald's funeral, where, sure enough, the first image is of a Dallas Fort Worth police officer walking in front of Oswald's casket on the way to the hearse. There's even a shot of a uniformed officer at the graveside bowing his head as the casket was lowered into the ground.

If Lee Harvey Oswald, murderer of both a US President and a Dallas police officer, received a police escort at his funeral - with an officer leading the casket to the hearse, no less - I don't see a serious beef with what happened here. This is a disingenuous complaint and an opportunistic excuse to undermine the new chief. 

Certainly Brown needn't resign because of any personal culpability. His son was mentally ill and it doesn't matter if you're homeless or a police chief's son, our society has few methods to treat serious mental illness outside the justice system - a situation that IMO greatly contributes to these types of tragedies. It's possible Lancaster police didn't arrest Brown, Jr. that day because he was the chief's son, but it wasn't because Brown intervened - they phoned and left a message saying they'd been at the apartment and his son was "okay," but by all reports Brown never communicated with them about it.

Everyone involved in this tragedy deserves a chance to grieve without facing mean-spirited attacks, including the Chief and his family. There's little left to investigate and nobody left to blame. All that remains is an opportunity to emerge with renewed sympathy for one another.

Saturday Roundup

Here are a few items that caught my attention recently even if I don't have time to focus on each of them:

Don't consent to searches
From Robert Guest: "Don't consent to searches: Not guilty edition."

Criminalizing dissatisfied education consumers
The trend toward criminalizing truancy continues in Gilmer. To me, truant youth are voting with their feet about the quality of their education. If it's irrelevant to their daily lives and seemingly offers no future benefit (for those who won't be attending college), dropping out can be a rational choice. I'd rather see resources directed toward improving the educational product than toward using law enforcement to force an unwanted product on educational consumers. 

Questionable bust leads to massive drug sentence for tiny amount
In Wichita Falls, a traffic stop led to a drug arrest garnering a 50 year sentence for possession of less than 4 grams of cocaine. Talk about wasting scarce incarceration resources! A commenter at the Times-Record News identified as TexasWomen offered this perspective:

I'm glad taxpayers are willing to house this man, pay for medical, pay for dental, along with food and water for the next 50 years over 4 grams of cocaine. And you wonder why the US is having financial problems. 50 years for BP CEO is a headline I would like to read. Where are our priorities? This man gets 50 years for a spec of cocaine and not one person who polluted the entire gulf has been prosecuted.

This case sounds squirrelly to me from the media description. The drugs were found at a traffic stop during a so-called Terry frisk (a search for weapons), but I find it difficult to believe the officer mistook a packet with 3.7 grams of cocaine for a firearm. 

Unnecessary force?
Is slamming a handcuffed suspect onto the hood of a car "unnecessary force"? The Paris (TX) PD chief thought so, but a hearing examiner will decide if the officer's suspension stands.

Alleged official malfeasance
A pair of clerks at the Corpus Christi PD resigned after an investigation was opened into records tampering. News coverage so far has contained few specifics, but I'll be interested in learning what records were being tampered with. Meanwhile, at a Bexar County constable's office, "a high-ranking officer and a civilian employee are accused of conspiring to steal $1,000 from the precinct."

Rocks v. Firearms
A Border Patrol agent in El Paso shot into a crowd of youth on the Mexican side of the Rio Grande who were throwing rocks at him and killed a 15-year old Juarez boy with a history of working with coyotes. Experts told the El Paso Times that Mexico is unlikely to seek extradition, but I wonder if US officials would feel the same way if a Mexican cop shot an American from across the river?

Capital cases confirm shifting vote patterns on CCA

About a week ago I posed the question, "Is Sharon Keller's influence waning on the Texas Court of Criminal Appeals?," focusing on a couple of recent Fourth Amendment cases in which the Presiding Judge was in the minority. Now via the prosecutors' association user forum I notice a related article from the June 16 San Antonio Express-News ("Death penalty winds shifting on high court") identifying a similar trend in capital cases. The story opened:

Seldom do judges on Texas' top criminal court side with death row inmates, but last month they did so twice.

And last week they did it twice again, this time in decisions issued only a day apart.

Sparing a mother who smothered her infant and delaying the executions of three other convicts, including a San Antonio kidnapper, the rulings aroused speculation that something new might be afoot at the Texas Court of Criminal Appeals.

"The last few weeks have been striking," said Jordan Steiker, co-director of the Capital Punishment Center at the University of Texas School of Law.

The court's willingness to reconsider so many death sentences in such a short span is, some believe, a direct response to the exacting scrutiny and repeated criticisms that the U.S. Supreme Court has aimed at Texas' handling of capital cases.

The high court in recent years has overturned several Texas death penalties and, in the term alone, the justices have ruled in favor of three inmates condemned by the state.

It's heartening to see evidence that an emerging majority has decided to stop butting heads with SCOTUS on capital cases and just follow their rulings instead of looking for any possible avenue (think "We close at 5") to sustain an execution. The minority in those cases - Keller, Hervey, Keasler and Meyers - remain essentially defiant toward US Supreme Court rulings on the death penalty.

Williamson County DA John Bradley was quoted in the story attempting to portray this development as a "liberal" shift:

Others worried that the judges had surrendered to political expediency

"One could wonder if they're now trying to err on the side of more liberal rulings to avoid Supreme Court review," said John Bradley, Williamson County district attorney.

That's an ironic, rather silly, and nearly Orwellian way to characterize these rulings. In John Bradley's world, for a judge to follow US Supreme Court dicta is to "err on the side of more liberal rulings." In reality, for a judge, ruling CONTRARY to US Supreme Court decisions is considered errant, the error being failure to follow precedents laid down by federal appellate courts.

To the extent these rulings resulted because five CCA members are trying to avoid the all-too frequent benchslappings they've endured from SCOTUS, that indicates they're now following the law of the land. By contrast, the four activist members in the minority, given their druthers, prefer to flout Supreme Court rulings in deference to their personal political agendas on capital punishment. Judge Cochran told the Express-News, "I follow the law as the Supreme Court gives it ... And I always try to do that when the Supreme Court speaks, no matter who it favors." That's a refreshing change of pace from the CCA; let's hope it can be sustained.

LBB: Prison population flat for years to come, unless Texas cuts diversion programming

After legislative leaders said possible prison closures depend in part on the Legislative Budget Board's estimate of how many beds will be needed, I've looking forward to the publication of LBB's inmate population projections (pdf) that were released today covering fiscal years 2010-2015. The friend who forwarded the link summarized the results thusly:

• Adult Incarceration: Flat
• Adult Parole: Steady increase
• Adult Felony Community Supervision: Steady increase
• Adult Misdemeanor: Slight decrease
• TYC: Flat
• Juvenile Probation: Flat 

There's more, though, because the LBB estimates potentially preclude several of the larger cuts suggested by the Texas Department of Criminal Justice to treatment and diversion programming. In the methodology described in Appendix A, LBB lets us know that these flatline projections only hold if diversion programming isn't cut, asserting dryly (p. 13) that "The implementation of these initiatives has been incorporated into the simulation model."

These data let us know a) that diversion programs have been effective, b) that inmate numbers would rise without them, and c) that generating substantial savings will require additional policy changes beyond what the Legislature has so far embraced. I've suggested the following ideas for safely cutting the corrections budget as a starting point:

• Finish the 2007 probation reforms
• Ratchet down drug penalties one level
• Ramp up diversion and community supervision funding
• Close older, more expensive units and allow several private contracts to lapse

 If LBB had predicted a steep upward curve regarding inmate numbers, the possibility of closing prisons might well have ended with this report. But with diversion programs working well and inmate numbers flatlining - not to mention LBB's explicit tying of diversion programming to the leveling out of the inmate population - this data may help box in TDCJ so they can't cut treatment and have little choice but to seriously consider cuts to the institutional division that they'd previously been unwilling to countenance.

Remembering Sputnik

I just received word that one of the most eclectic but effective public interest lobbyists in the state - Sputnik, founder and state chair of the Texas Motorcycle Rights Association - passed away at 5:30 am this morning."Please remember his wife, Gwen, their family, friends and the biker community in prayer in the loss of this man who served bikers tirelessly in the fight for our rights and freedoms," said the brief email notice. "Funeral arrangements will be announced."

Sputnik had over the years developed personal access to the most influential people in the capitol, with the ability to garner meetings with the Lt. Governor, Speaker and committee chairs that were frequently the envy of his allies. At the same time, though he knew how to play the insider game consummately, he portrayed himself as virtually an outlaw presence at the capitol, an image enhanced by his trademark mohawk, leather vest, missing appendages, and the word "Free" tattooed across his forehead. Most importantly, his base was large and well-organized, as demonstrated by Biker Day at the Lege when riders converge on Austin from all over the state for a lobby day preceding an annual weekend of partying.

My favorite Sputnik story from my own limited contacts with him over the years came during the push in 2005 to allow Texans to legally carry guns in their personal vehicles, a bill which never resulted in the predicted spike in road-rage deaths that naysayers direly anticipated. Sputnik believed carrying a gun was a constitutional right and that, for example, requiring a concealed carry permit turned that "right" into a "privilege" which could be then be taken away at the government's whim. I'll never forget him telling then-Chairman Terry Keel and the House Criminal Jurisprudence Committee that he'd carried at least one gun wherever he went since he was nine years old, and that if he expected trouble he carried two! Pure genius. What's more, he announced, "I'll do that forever." (See his testimony here beginning at the 6:52:50 mark; FWIW, my own testimony on the bill immediately followed his.)


Sputnik was an unsung Texas hero and an American original. The capitol won't be quite the same without him.

Texas helps lead first decline in number of state prisoners since 1972

Via Sentencing Law and Policy, I'm fascinated to see this new federal report (pdf) documenting that state prison populations declined in 2009 for the first time since 1972. Notably: "About three-fourths (71.7%) of this decrease resulted from declines reported in six states reporting decreases of more than 1,000 prisoners: Michigan (down 3,260), California (down 2,395), New York (down 1,660), Mississippi (down 1,272), Texas (down 1,257), and Maryland (down 1,069).

By contrast, "Offsetting the total decrease of 15,223 state prisoners was a total increase of 12,282 prisoners in the remaining 26 states. Five of these states reported increases of more than 1,000 prisoners and accounted for more than half (60.7%) of the total increase: Pennsylvania (up 2,214), Florida (up 1,527), Louisiana (up 1,399), Alabama (up 1,282), and Arizona (up 1,038)."

I don't know about y'all, but I'm pleased to see Texas on the first list instead of the second, and I'm hopeful legislators will continue to make smart choices during the coming budget crisis to expand on that trend and keep it going.

Demoralizing tales from Houston law enforcement

Coupla stories out of Houston PD bear watching:

First, four officers have been indicted, seven fired, and 12 disciplined after the brutal beating of a handcuffed suspect who'd run from police was captured on videotape.

Second, Moises Mendoza and James Pinkerton continue their excellent reporting on Houston PD's fingerprint lab, describing the results they got back from a recent public information act request. Bottom line: "In the last 10 years, communication broke down between supervisors and ground-level employees. Meanwhile, command staff failed to give employees adequate training, didn't keep pace with technological advances and allowed the lab to physically deteriorate, according to audit reports."

And over at the Harris County Sheriff's Office, a captain demoted by Sheriff Adrian Garcia after he admitted drinking before an off-duty car crash was reinstated to his old job and was awarded back pay by a three-member civil service commission. Look for the same thing to happen with at least some of the fired and/or disciplined officers from HPD in the first incident described above. I say that not because I think the allegations against the officers are unjust but because it's incredibly difficult for law enforcement administrators operating under Texas civil service statutes (which for various historical reasons apply to HCSO but no other Texas Sheriff) to effectively discipline bad cops.

UPDATE: No jail expansion in Houston, for now

Yesterday the Harris County Commissioners Court bypassed the opportunity to put jail bonds on the ballot as Sheriff Adrian Garcia requested, instead criticizing Garcia for his unilateral decision to take prisoners contracted to a Lousiana jail and move them to Texas counties which charge more money.

Commissioner Jerry Eversole said he'd have been indicted if he did the same thing, but I don't think so unless there was some financial or political quid pro quo. It was a fiscally imprudent decision, but probably not a criminal one unless there's some unstated evidence of kickbacks or patronage that hasn't been alleged. In any event, commissioners have figured out it's cheaper in the short to medium run to rent contract beds and focus on expanding diversion programs than to build new jail facilities they can't afford to staff.

RELATED: Push to expand Harris jail ill-conceived.

MORE: Kuff says Commissioners Eversole and Radack have only recently gotten religion regarding jail overcrowding, to which I can only reply, better late than ever.

Casey: Prostitution charges against 13-year old criminalized victimhood

Rick Casey at the Houston Chronicle describes a fascinating appellate case ("When the victim is the 'criminal,'" June 23):

In a decision fought by the Harris County District Attorney's Office, the Texas Supreme Court ruled last week that a 13-year-old girl who had made an offer to an undercover vice cop could not be charged with prostitution.

Why? Because, the high court ruled, a 13-year-old cannot legally consent to sex. And if you can't consent to having sex, you can't consent to selling it.

Makes sense to me. See the rest of Casey's story for the sad details of the case. Bottom line: Should criminal law treat a 13-year old prostitute as a criminal or a victim? The Texas Supreme Court said she's a victim. But how about a 14 or 15 year old prostitute? The high court's logic would allow them to be prosecuted, but what are the costs of ignoring her victim status to focus on criminal prosecution? Indeed, the courts are not alone in rethinking the status of prostitutes. One of the lessons from the Prostitution Diversion Initiative out of Dallas is that even adults in the business often may be categorized as victims as readily as offenders.

The opinion's logic almost bears resemblance to writings over the years from the Law & Economics movement, burnishing the consensual nature of economic exchange to undermine the precepts of criminal law. Because they usually handle civil cases, justices on the Supreme Court of Texas perhaps are more versed in and amenable to Richard Posner-style "Law and Economics" logic, which I've always suspected could unleash a great deal of mischief along these lines if ever applied wholesale toward criminal law and particularly vice crimes.

Interestingly, this case was decided by the SCOT because crimes by juveniles are handled in family court. That takes them out of the jurisdiction of Texas' Court of Criminal Appeals, where it's hard to imagine a majority of judges denuding prosecutorial power so overtly.

See more discussion from the Supreme Court of Texas Blog.

Cutting police costs? 'Verified response' for alarms gets more benefit from same number of officers

The City of Austin has put up a page asking citizens to prioritize budget reductions, and reducing overtime and police pay were the top suggestions for the police department. Via their feedback mechanism, I replied:

If you're talking about cutting officers or eliminating overtime, here's a suggestion to put more officers on the street essentially for free: Implement verified response for burglar alarms. About 98-99% of residential burglar alarm callas are false alarms and nearly all the rest of the time the suspect is long gone when officers arrive. Implementing verified response would be like expanding the police force by 10% or more, allowing officers to focus on more important tasks. The reason this suggestion is free to the city, incidentally, is that it essentially eliminates a special-interest subsidy to the private alarm industry that's unjustified based on any cost-benefit analysis. It also would create jobs because the alarm companies must hire staff to verify alarms.

Salt Lake City's verified response program provides one of the best examples of this strategic redeployment of scarce officer resources: "Average private guard response times to alarm activations has been much faster than the previous average police response times. Average police response time to other high priority calls for service dropped from five to three minutes." Before Salt Lake implemented verified response, "False alarm calls were draining patrol resources and often created a significant backlog of calls."

I've not seen comparable data for Austin, but in many cities including Plano and Richardson, false alarms are the single most common category of police calls, more frequent than things like 911 calls or traffic accidents. Freed from reacting to unverified alarms, police could focus more on crime fighting, plus local employment gets a boost from alarm companies hiring more staff.

There will inevitably be citizens reacting out of fear who claim that nothing but police reacting to their burglar alarm will do, even if private security would get there sooner. Indeed, as soon as verified response is proposed, you can expect private alarm companies to engage in all sorts of fear mongering communcations with their customers urging them to oppose the idea. In reality, only a tiny number of arrests result from many thousands of residential burglar alarm calls, the false-positive rate is off the charts, and private homeowners are safer with private security getting their quicker, focusing police responses on verified emergencies.

If budget cuts reach so deep that police overtime, eliminating a cadet class, etc, are on the table, Austin should simultaneously seek ways to maximize bang for the buck from the officers we can afford. For jurisdictions which can muster the political courage to make policy based on data instead of the irrational expectations of burglary alarm customers, implementing verified response is the cheapest, most straightforward way to boost police coverage without increasing costs.

Indigent Defense Roundup

I don't have time to analyze each of them, but several different items related to indigent defense and public defender offices caught my attention recently:

• Justice Lite: Harris County should beef up its pilot public defender program, Houston Chronicle, editorial, June 20
• Congress must rewrite the law governing lawyers for poor death row inmates, Washington Post, June 21
• Harris County's request for public defender grant in trouble, Houston Chronicle, June 9
• Chief hired for state capital defender office, Houston Chronicle, June 22
• Report: Representing the mentally ill offender: An evaluation of advocacy alternatives, Task Force on Indigent Defense/Office of Court Administration, April 2010
• June newsletter, Texas Task Force on Indigent Defense
• See a video describing the work of the Travis County mental health public defender
• See recent remarks by US Attorney General Eric Holder arguing to expand the role of public defenders.

Three options in Keller case for Judicial Conduct Commission

Austin Statesman courts reporter Chuck Lindell emails with a correction regarding possible options for the Sharon Keller Commission on Judicial Conduct proceedings:

So you know, the SCJC chairman misspoke during the hearing about their options.

He said they could issue a censure, reprimand, warning or admonition ... but that's a regular case.

After these "formal proceedings," they can only issue a CENSURE, dismiss or recommend removal.

(verified by Seana Willing, who also said the rules are wrong ... not updated ... when they say 6 votes needed to remove. It's 7, like McKetta told the commish.)

Of the three options - censure, dismissal, or recommending removal - let me know in the comments which you think the commission will choose.

Vampire cops train on mentally ill TDCJ inmates

The UT Medical Branch at Galveston, which provides health care at most Texas prison units, has been in the news recently for making a little money on the side. First it was a UTMB doc sanctioned for allegedly prescribing drugs to addicts outside his prison practice. Now we learn of UTMB's participation in a contract to train police officers to take blood following DWI stops by practicing on mentally ill inmates. KHOU published this statement from the medical school:

UTMB’s Correctional Managed Care program has an agreement with Lone Star College involving its Law Enforcement Phlebotomy Program. The participating Houston police officers at the units were there as part of the Lone Star College course they were taking. Having blood drawn is part of the standard intake process at TDCJ and offenders were given the option of having a police officer or a staff phlebotomist perform the procedure. All of the offenders involved chose to allow the police officers to do the procedure.

No, really. UTMB, presumably with TDCJ's approval and cooperation, asked mentally ill inmates upon intake whether they'd consent to a novice practicing on them to draw blood. Is anyone surprised that "All of the offenders involved chose to allow the police officers to do the procedure"? Mark Bennett's satirical response pretty much says it all. Why couldn't UTMB operate a "Kidney farm," he asks, "And retina farm. And plasma farm. And bone marrow farm. (The last two are renewable resources, which the "offenders" will hardly miss.)" (See the rest of his hysterical post.)

How much was UTMB paid for this training, one wonders? For what petty profit did the doctors involved sell out their ethics? Or given recent layoffs, perhaps a better question is, were any doctors or nurses involved in making that ethical decision at all?

Push for expanded jail by Harris Sheriff ill-conceived

Harris County Sheriff Adrian Garcia wants to reframe the debate over jail bulding - hoping to succeed where his GOP predecessor failed - by portraying an expanded booking center and extra beds as providing services for the mentally ill. However, Marc Levin and Ana Yañez Correa rightly suggested to the Houston Chronicle that "The costs of running a new building - utilities, staffing, maintenance - will compete for tight budget dollars with reforms that would divert more mentally ill arrestees into treatment instead of cells."

Designating 1,200 beds for the mentally ill may sound like do-gooder public policy, but in the corrections context that simply frees up 1,200 spaces for other new prisoners because there are always more than 1,200 mentally ill offenders in the jail at any give time. If he wants to focus staff and services on these mentally ill offenders, the Sheriff can do so already at far lower cost. While a new wing could conceivably improve the provision of mental health services, it would only do so with the addition of significant new staff - including medical staff and trained mental health professionals as well as guards.

Presently, Harris County doesn't have enough guards to staff the jail cells it operates, and any additional capacity would either require new hires or paying staff costs entirely out of overtime. Harris County Commissioners need only look to Los Angeles - where a $74 million jail sits empty thanks to staffing shortfalls  - to see where these misplaced spending priorities will lead them. (Thanks to a reader for pointing that story out to me.) Before even considering a vote on this proposal, Commissioners should require a detailed staffing plan that demonstrates how Garcia intends to overcome existing staffing shortfalls and staff additional services that will supposedly be provided to the mentally ill. Really, though, the county's immediate priority should be to divert mentally ill offenders to alternative, community-based treatment programs where they can get the care and supervision they need, not endlessly building jail beds in which to warehouse them.

My position on jail building is simple: It's only justified after the most obvious ways to reduce jail populations have been tried, and in Harris County they have not. For starters, Sheriff Garcia chooses to participate in an optional immigration program that needlessly sops up scarce jail beds. Regarding the proposed, 1,000-inmate booking center, in particular, Garcia has failed to enact policies within his authority to reduce unnecessary bookings, like allowing issuance of citations instead of arrests for certain Class B misdemeanors. Instead he'd have the county build space so Houston PD can arrest minor traffic violators.

In that context, it's hard in particular to take seriously complaints that booking facilities are overwhelmed. Garcia could reduce the pressure on intake if he wanted to, and could encourage Houston PD to do the same. Instead he just asks for more beds.

MORE: Chronicle reporter Chris Moran added some detail on the paper's Houston Politics blog that didn't fit into the story.

No one could ever be convicted based on false eyewitness testimony in Lubbock, except for those who are

The Lubbock Police Department thinks cases like Timothy Cole's false identification that led to his wrongful conviction and death in prison don't imply the department needs to change their policies, reports the Lubbock Avalanche Journal ("Experts question LPD's new eyewitness process," June 20):

The department resisted what a spokesman called "knee-jerk reactions" to exonerations and new research that changed laws in three states and eyewitness procedures in at least five major departments including Dallas.

Capt. Greg Stevens said in a recent interview current procedures would make impossible a repeat of the series of errors that produced cases such as that of Tim Cole, Texas' first posthumous pardon recipient, who died innocent in prison serving a Lubbock sentence based heavily on the misidentification of a rape victim ...

"Not ever would that one piece of evidence be used to even, even substantiate a case against somebody," Stevens said. "It would have to be corroborated with more evidence, more information."

But a life sentence reversed by the Seventh Court of Appeals of Texas in 2008 - more than 20 years after the Cole investigation and several years after changes Stevens described - indicated eyewitness identification could make up the bulk of a case.

See the rest of the lengthy article by Elliot Blackburn for details of the overturned conviction. It's hard to find credible LPD's claims that eyewitness testimony would never be used by itself to convict. After all, the law doesn't require corroboration, regrettably, and neither did Lubbock police and prosecutors as recently as 2008. In reality, unless and until the law corroboration for eyewitnesses (at least, for those who previously didn't know the suspect), neither will law enforcement. And clearly departments like Lubbock won't change their policies until they're forced to do so, either. It's rather silly to expect anyone to believe otherwise. Until then, according to eyewitness ID expert Gary Wells:

"LPD's procedures are woefully out of date and do not at all look like those of a police department that has taken this problem seriously," Wells wrote in an e-mailed response to questions. "They have seemingly ignored the science on this as well as the recommendations of the Department of Justice and virtually every task force in the country that has delved into this issue."

Regular readers know that legislation to require updated eyewitness ID policies appeared to be on the fast track for passage in 2009 then died in the end-of-session meltdown over Voter ID. Since then, most Texas departments have failed to change policies on their own steam, so expect this subject to come up again in 2011 at the Lege, whether Lubbock PD is ready to change or not.

Fingerprint mismatch led to false homicide accusation

Here's a remarkable story casting light both on a) the power of fingerprint evidence and b) its higher-than-expected error rate, from the Houston Chronicle ("Fingerprint error led to 4 months in jail," June 19):

Authorities on Friday identified an ironworker with no criminal record as the suspect held in jail for four months in 1996 after the Houston Police Department's troubled fingerprint analysis unit wrongly tied his fingerprint to a homicide, records show.

In July that year, two Houston fingerprint analysts identified Manuel Quinta Guerra's fingerprint on a bloody fork found at the scene of a slaying in southwest Houston. The next day he was arrested, booked into the Harris County Jail and held on $20,000 bail. Guerra wasn't released until December, when the FBI confirmed the print belonged to someone else, according to the Harris County District Attorney's Office, which discussed the case Friday. The killing is still unsolved.

HPD leaders were not aware of the misidentification until the Houston Chronicle brought it to their attention this week.

The discovery raises questions about whether there could have been more misidentifications by the unit in the 1990s, although police say they don't know of any.

It also focuses attention on whether the department's review of fingerprint evidence spanning 2004-2009 should be expanded. It was launched after an audit last year found lab employees were missing viable fingerprints on evidence. Police say they know of no misidentifications except for Guerra's, although they have identified vast technical errors in the unit's analysis of fingerprints.

Fingerprint analyst Rafael Saldivar, one of the people responsible for the 1996 misidentification, received a reprimand this spring for destroying notes. He was also reprimanded in writing in 1997 for his role in the misidentification.

Police will not say whether they'll expand the review of fingerprint evidence and declined comment Friday on Guerra, saying they were reviewing the case.

Perhaps most telling about the whole episode: The guy responsible for the misidentification 14 years ago is still with the department and still the source of problems.

See related Grits posts:

• Houston fingerprint lab plagued with errors, two-year backlog
• Fallible fingerprints: The dustup over cognitive bias 
• Fingerprint examiner: 'They put pressure on you shamelessly'

Is Sharon Keller's influence waning on CCA?

Having been focused on Judge Sharon Keller's removal proceedings yesterday, it's worth taking a moment to point out that the Texas Court of Criminal Appeals appears to be in a period of transition, with the hardline faction led by Keller and Barbara Hervey more frequently finding itself on the losing side of cases where they'd probably have prevailed handily a few years ago. The Texas Court of Criminal Appeals blog identifies two examples of this phenomenon from published opinions released in March:

PD-0307-09, Ronald Lee Wilson v. State: The CCA held that a police officer’s use of a fabricated fingerprint report in violation of §37.09 of the Penal Code to persuade a defendant to confess requires the suppression of a suspect’s confession under the Texas exclusionary rule found in Article 38.23. Judge Meyers dissented because he did not think the officer violated §37.09 because the defendant’s confession to the offense meant the report was not really fabricated. Bless his heart. Judge Keasler, joined by Judge Hervey and Presiding Judge Keller, dissented because the Wilson had failed to argue a violation of §37.09 at the trial court, so the error was not properly preserved. Finally, Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, dissented because the officer’s violation of §37.09 did not violate any of Wilson’s personal rights so he had no standing to complain. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.

PD-1780-08, Pamela Shareka Langham v. State: The CCA held that admission of hearsay statements from a confidential informant that a police officer used to get a search warrant violated the Confrontation Clause. Presiding Judge Keller, joined by Judges Keasler and Hervey, dissented because she did not believe the statements provided great, incriminating detail and that the CCA should have performed the harm analysis itself rather than remand the case. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, also dissented because the out-of-court statements were not “testimonial” because they referred to conduct for which the defendant was never charged. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.

No one would have been surprised if the court had ruled the other way in both cases and declared both instances "harmless error." But hard-liners on the court today hold less sway than they did five years ago, even though the personnel hasn't changed. Judge Keller has received a lot of attention for her actions (and just as much, her inaction) on September 25, 2007, but the public typically pays less attention to her day to day role, along with Judge Hervey, as the intellectual leader of a wing of the court that reflexively sides with prosecutors at every step and whose leadership has made the CCA a national laughingstock. Other judges on the court (all conservative Republicans) have episodically begun to resist, however, and these decisions reflect a recent trend of Keller's colleagues starting to push her aside and correct course.

I don't imagine Democrat Keith Hampton, who couldn't even win an election among criminal defense lawyers, has much of a chance this fall against Michael Keasler, a charter member of Keller and Hervey's extremist faction on the court. But in 2012 Keller and Hervey are both up for reelection in a year when high turnout from the presidential election could make them vulnerable.

Incidentally, Texas is lucky to have two blogs, one each from the prosecution and defense perspectives, covering the Court of Criminal Appeals and Texas criminal appellate law: the Texas Court of Criminal Appeals Blog is written from a prosecutorial perspective, and Liberty and Justice for Y'all, which typically views things more form a defense point of view. Both are a great way to keep up with CCA rulings. There's also, just to have mentioned it, the fine Supreme Court of Texas Blog covering the state's highest civil court.

MORE: From Jeff Gamso.

Oral arguments in Sharon Keller removal proceedings this morning

I'm headed up to the State Commission on Judicial Conduct this morning to hear oral arguments in Texas Court of Criminal Appeals Presiding Judge Sharon Keller's removal proceedings. Go here for all the filings in the case. See also AP's preview that's in several papers around the state this morning.

UPDATE: Back from the event, which lasted a little more than five hours en toto. I was somewhat surprised there wasn't a bigger crowd there. The room was perhaps a little more than 2/3 full at its height and any protesters remained outside. Media coverage was also lighter than I'd expected. The usual suspects among reporters were there, but just four TV cameras and no noticeable national news presence. The Commission will likely take a vote today, but the results won't be released publicly until sometime in the future. Keller, for her part, wore an emotionless mask throughout the hearing.

Keller's attorney Chip Babcock spent the majority of his time (80% by one commissioner's estimate) criticizing the Texas Defender Service and particularly attorney David Dow for mendacity and seeking to railroad Judge Keller out of office. He also criticized the Texas Civil Rights Project for relying on inaccurate media reports in drafting its complaint to the SCJC. These charges had taken an "almost unspeakable toll" on Keller "personally, professionally, and financially," he said, adding that all the allegations against her are a "pack of lies." The entire proceeding, he opined, was a "calculated strategy by some people to take a popularly elected judge and drive her from the bench." He also emphasized that Special Master David Berchelmann found Keller had violated no "unwritten rule," distinguishing such (as did the fact finder) from an unwritten, longstanding protocol at the CCA that Judge Keller said in a deposition she knew about and was considered mandatory.

Examiner Mike McKetta, by contrast, portrayed following that "mandatory protocol" as a "judicial duty" whose violation breached judicial canons. He observed that Judge Berchelmann, the fact finder, failed to issue findings on most of the questions about which the examiner asked him to rule, so McKetta asked the Commission to make those findings in his stead. Cleverly, in a power point presentation he proved up the main elements of the alleged offenses almost entirely from Judge Keller's own testimony - her admissions about what she knew and when she knew it, etc. - arguing she engaged in "gross carelessness." He also emphasized the Judge's defiant insistence that she'd do again today what she did back in 2007. Keller, he said, "persists in the belief that mandatory rules are not applicable to her." TDS' role is irrelevant, McKetta argued, since Judge Keller at the time she made the decision in Richard's case didn't know who was the defendant or who represented him. In perhaps the strongest statement in his presentation, McKetta said this is "not the right person or attitude" for the Presiding Judge on the state's highest criminal court.

Both attorneys were on their A games, but Babcock suffered in a couple of key moments from what they call "bad facts," particularly when he claimed Keller didn't really mean she would do the same thing again, that she isn't a "recidivist," but Justice Jan Patterson read back to him Keller's exact words from the testimony transcript to show he'd mischaracterized the Q&A and the examiner's interpretation was accurate.

Even so, it's exceedingly difficult to handicap results based on reactions from commissioners. I honestly can't begin to guess how they'll rule. One of the public, non-attorney members observed that there seemed to be a "shocking amount of dysfunction in the court," and a couple of others posed harsh questions - particularly a judge on the panel who called Babcock on the carpet for over-the-top comparisons in recent briefs of commission proceedings against Keller to Soviet show trials. Two other commissioners, though, seemed eager to cast aspersions on TDS and David Dow, and one of Judge Berchelmann's colleagues from San Antonio wondered if Keller's behavior must be overtly malicious to be "willful." Trying to interpret such questions to predict votes amounts to little more than tea leaf reading. I'd guess it won't be a unanimous vote, but I'm hard-pressed to say which way they'll go. And even if a majority of commissioners do hold against her, then the question becomes: What is the sanction?

See initial MSM coverage from the Austin Statesman, the Fort Worth Star Telegram, the Dallas News, Texas Lawyer, and AP.

MORE: Here's a link to the Examiner Mike McKetta's power point presentation. AND MORE: The Texas Tribune has audio excerpts from Keller's attorney.

New trials in Mineola Swingers Club cases

Judge Jack Skeen out of Tyler received a sharp-tongued benchslapping from the 14th Court of Appeals out of Houston, ordering new trials in two of the Mineola Swingers Club cases. Here's how Michael Hall from Texas Monthly described the ruling:

the court ultimately based its decision on the “numerous evidentiary errors” it found were committed by trial judge Jack Skeen. For example, Skeen refused to allow any testimony about allegations that John Cantrell, the kids’ foster father, may have abused other kids. Skeen also permitted Kelly’s prosecutors to tell the jury that Mayo and Pittman had already been convicted of running the child-sex ring that Kelly was on trial for. Kelly’s attorney Thad Davidson repeatedly objected to statements made by investigators and CPS workers about what the kids had said during their investigations on the grounds that this testimony was hearsay, but Skeen repeatedly overruled the attorney. In doing so, the appeals court wrote, “The trial court clearly abused its discretion.” In the end, the court concluded, “The record is rife with error … the trial court adopted ad hoc evidentiary rules that operated to assist the State in proving its case, while impeding appellant’s ability to defend himself.”

A/C bills one more reason to close Dawson state jail

There are quite a few reasons to close the Dawson State Jail in Dallas. One we haven't discussed is to reduce TDCJ's A/C bill. A drawback of having a prison in an urban highrise instead of a more traditional design is that it requires A/C, which otherwise is mostly only available at a handful of medical units. Air conditioning went out recently at Dawson and repairs are reportedly underway - bad for the prisoners, certainly, but also for employees. We're talking about a 10-story high-rise situated in the Trinity River bottoms. What's more, the building is standing in the way of a proposed redevelopment project being pushed by the Dallas City Council, which wants the facility removed. Dawson is a private facility operated by Corrections Corporation of America housing more than 2,000 Texas state jail inmates.

Dawson isn't air conditioned because anybody's soft on state jail inmates there, it's because its placement was political, putting an inappropriately designed and located facility in South Dallas on the misguided premise that prisons were going to bring jobs to rural communities and South Dallas could use jobs, too. Just a few years later, the prison has become an impediment to job creation. Its contract is up for renewal in January.

An overt case of profiling

I'm flattered that Matthew Stewart at the blog LoneStarters chose to publish a profile of Grits for Breakfast, declaring "this blog hits some of the more controversial topics you’ll see from an Austin-based blog ... combining tough analysis with eminently readable prose," adding " if you haven’t yet given Grits a look, you should for the writing alone." And I'm especially pleased to learn that Grits "is one of the blogs that inspired me to write more frequently for this blog." Thanks, Matthew, for those very kind words. He also included a few responses to questions sent via email, including this observation on the motives for blogging:

Outside of diarists or as a storehouse for family portraits, to me there’s only one good reason to start a blog. If you have something to say and the gaping hole in public discourse from nobody saying it is driving you batshit crazy. Otherwise, nobody’s paying you and there are far more pleasant, constructive ways to spend your time.

As always, thanks for reading, folks.

Can UTMB provide constitutional levels of healthcare after prison staffing cuts?

KUT ran a report this week (audio here) focused on recent layoffs at UTMB's Correctional Managed Care program titled "Paying for Healthcare in Texas Prisons," in which yours truly was quoted declaring “In some ways, it’s a game of chicken because the feds can always come in and do what they did in California and say, you know you can’t scale back that much.”

I find it hard to understand how the agency could let go so many nurses, dentists, and other on the ground personnel and still provide constitutional levels of care. If they do not, I further doubt the Justice Department under Obama/Holder will be nearly as reticent to intervene in Texas as was DOJ under Bush/Gonzales (that is, if the Administration would ever nominate any US Attorneys for Texas).

Slashing medical personnel at prisons forces UTMB to rely even more on telemedicine, but UTMB also laid off thousands of healthcare workers in Galveston after Hurricane Ike, including 124 professors whose firings this week earned them censure from the American Association of University Professors. Those post-Ike layoffs left UTMB overall financially in the black, despite losing money on prison healthcare, but I've never heard anyone adequately explain how UTMB's telemedicine program could still operate after losing so many docs and specialists on the main campus.

It's an open question whether UTMB's scaled back staffing actually meets the terms of their contract with TDCJ, much less surpasses the minimum threshold for providing constitutional levels of care under existing federal court precedents. Rumor has it prison administrators aren't happy with UTMB over the cutbacks, but TDCJ doesn't appear to have a lot of leverage. That said, UTMB's threats to pull out of the contract also ring false. They're a state institution. If the Legislature commands them to perform the services, by God they're going to do it.

So there's a sense in which both sides in the contract dispute can make only empty threats. Unless the feds intervene before then, the ball is basically in the Legislature's court, and I wouldn't expect them to weigh in until their 82nd session next year.

No greater returns from counties jailing deadbeat dads

A feature from the San Antonio Express-News ("Don't pay child support, go directly to jail," June 15) offered data from Texas' largest counties regarding jailing for non-payment of child support. The story focused on Bexar County jailing more frequently in aggregate than other counties, but as a percentage of total cases in 2008, Travis County roughly doubled Bexar County's rate. In San Antonio, deadbeat dads were jailed at a rate of one for every 115 open cases that year; in Travis County the rate was one for every 60 cases, extrapolating from data provided in this chart accompanying the story:

(I assume the last column is mislabeled and should be 2009 - it happens to the best of us - but to be on the safe side I've used 2008 data for all calculations.)

By comparison to Travis and Bexar, other large counties rates jail deadbeat dads at substantially lower rates. In Houston, deadbeat dads are jailed at a rate of one for every 1,476 open cases. By contrast, Harris County's average amount disbursed per open case in 2008 ($2,592) was higher than Bexar ($2,437) or Travis ($2,158). So there's no obvious reason to believe these tactics generate more income for dependents.

Reports the Express-News: "The vast discrepancy reflects a tougher-than-average philosophy in Bexar County in which parents who owe child support more often are summoned to court, judicial officials said. Usually, they’ll stay in jail for a few days or weeks to teach them a lesson or until they come up with some money." That said,

Not everyone, however, agrees.

“It’s counterproductive to me, and it just doesn’t make a lot of sense,” County Judge Nelson Wolff said.

It costs the county $60 a day to house a prisoner in Bexar County Jail, which often is overcrowded, he said. That equates to $2.7 million taxpayers must pay each year to incarcerate the parents, he estimated.

Hand in hand with the cost is the problem of jail overcrowding.

“I think there has to be a better way to do it,” Wolff said.

He added that:

with a child support collection rate on par with Dallas County, Bexar County’s judicial philosophy doesn’t make sense, Wolff said. Once a person is in jail, he’ll lose his job or can’t look for work.

“It just doesn’t add up,” he said. “Obviously, all of the other counties have come to the same conclusion except for us. ..... You’re putting them in there with the criminal element. ..... Jail should be for the protection of the public.”

Wolff said he has been critical of the incarceration rate for most of his political career with the county. But it’s the elected district court judges who hire the child support court judges, and so his griping has had little effect, he lamented.

Keep griping, Judge Wolff. You're exactly right on this one.

Ruh Roh: Posthumous DNA testing could exonerate already executed convict

From Matt Kelley at Change.org's Criminal Justice blog:

Did Texas execute an innocent man 10 years ago? We may be about to find out.

A state judge has granted a go-ahead for DNA testing on a strand of hair from the case of Claude Jones, who was executed in Texas in 2000 for allegedly shooting a liquor store clerk in (no joke) Point Blank, Texas.

The hair was collected from the store counter, and a forensic analyst testified at Jones' trial that it "matched" his head hair — a scientifically impossible finding. Based on this and the testimony of a snitch (who later recanted), Jones was convicted and sentenced to death.

The Innocence Project, together with the Texas Observer and two Texas-based innocence organizations, filed motions in court seeking to preserve the hair so testing could move forward. However, they've been opposed by San Jacinto County's district attorney, who fought to destroy the evidence, saying "once the defendant has been executed, I can do nothing more in the case." (Time Magazine ran a feature on the case at the end of May.)

Jones was the 152nd prisoner — and the last — who was executed during George W. Bush's tenure as Governor of Texas. A last-minute petition for clemency so DNA testing could be conducted was denied by his office. But thanks to this new ruling in support of a DNA test, ten years after Jones's death, we may learn soon if Bush allowed an innocent man to be executed.

More TDCJ employees injured by unsafe conditions than aggressive inmate behavior

TDCJ publishes topline monthly "risk management" data on its website regarding employee and offender injuries from which I compiled this chart:


* "Aggressive behavior" includes all physical attacks by offenders as well as "self mutilation" and assaults by other employees.

Clearly the greatest risk of injury for TDCJ employees come from "unsafe acts," which TDCJ defines as any "Behavioral departure from an accepted, normal, or correct procedure or practice which, in the past, has produced injury or property damage or which has the potential for doing so in the future, conduct that reduces the degree of safety normally present in an activity." It's also notable that more employee injuries are typically caused by unsafe working conditions than from aggressive behavior by inmates. Inmates are most likely to be injured on the job.

Bilking Crimestoppers, the Invisible Informant, Constables Gone Wild, and Book 'em Horns

A few disparate items that deserve Grits readers attention:

'Forgiving My Daughter's Killer'
From the Washington Post, see "Forgiving My Daughter's Killer," which offers praise for a victim-offender mediation program at TDCJ based on restorative justice principles.

Dallas: Budget shortfall = Fewer cops
Dallas PD may shrink its police force through attrition to avoid cutting officer pay during a time of budget crisis. I still believe smarter policies can increase police coverage without adding more officers to the force, but it would require more political courage than Dallas city leaders have demonstrated in the past.

Bilking Crimestoppers
In Dallas, the head of the CrimeStoppers program was allegedly engaged in an elaborate fraud scheme in which she would feed an accomplice information allowing them to collect (and presumably split) reward money to which they weren't entitled. I wonder how often (and how well) these funds are audited? It seems like, with payouts going to anonymous tipsters, there is an inherent risk of fraud from several potential angles.

The Invisible Informant
Following his high-profile extradition, Osiel Cardenas has gone from Gulf Cartel drug kingpin to the Invisible Man, and there are no records in the courts or the federal prison system saying where he is or what happened to him. Said one observer, "He has clearly become a useful informant and is being treated as such." Meanwhile, 2,200 people were recently arrested, including more than 400 last week, in a crackdown on cartel distribution networks. I wonder a) if the two stories are connected and b) whether even 2,200 arrests will make a dent in US drug distribution? UPDATE: A small-town South Texas police chief was among those arrested in the sweep.

Constables Gone Wild
A constable in San Angelo was indicted for writing a traffic ticket under false pretenses. In Dallas, a deputy constable accused of sexual assault is out on bond. A constable in Midland is under fire because two deputy constables weren't licensed earlier this year and all the cases they'd worked on (mostly traffic tickets) had to be dismissed.

Minor drug cases don't trigger deportation
The US Supreme Court ruled in a Texas case that minor drug violations don't automatically trigger deportation for immigrants.

Book 'Em Horns
UT football legend and Tennessee Titans quarterback Vince Young was charged with a Class C misdemeanor assault for an altercation at a Dallas strip club with a man who taunted him with an upside-down Hook 'em Horns sign. I suggest Young offer the same defense as the great Billy Joe Shaver when he was put on trial earlier this year for shooting a man in the face during a fight outside a bar. Asked by the prosecuting attorney why he didn't leave upon realizing the argument was escalating, Shaver replied, "Ma'am, I'm from Texas. If I were chickenshit, I would have left, but I'm not." The jury acquitted .

Living in the 'Age of Prohibitions'

Today I watched a short talk on YouTube from Lawrence Lessig, and agreed particularly with this observation from the end of his discussion:

[Our kids] are different from us ... We made mixed tapes, they remix music. We watched TV, they make TV. It is technology that made them different. And as we see what this technology can do, we need to recognize you can't kill the instinct the technology produces we can only criminalize it. We can't stop our kids from using it we can only drive it underground. We can't make our kids passive again, we can only make them "pirates." And is that good? We live in this weird time. It's kind of an age of prohibitions, where many areas of our life we live life constantly against the law. Ordinary people live life against the law, and that's what we are doing to our kids. They live life knowing they live it against the law. That realization is extraordinarily corrosive, extraordinarily corrupting, and in a democracy we ought to be able to do better.

He was talking about copyright law but the observation about living in an age of prohibitions applies much more broadly than just to music mashups.

Prohibition of drugs, prostitution and other consensual commercial activity driven into black markets are the big, hot-button culture war issues that come to mind when one thinks about living in an "age of prohibitions," but really the situation is much more pervasive than that. I've complained frequently on this blog that government attempts to solve nearly every social problem with prohibitions and criminal sanctions when often that's the least effective tool available. A great example is criminalizing truancy or using police and courts to handle juvenile misbehavior that in years past would have been dealt with through internal school discipline. Laws regulating teen "sexting" as porn raise similar emerging issues. But there are hundreds of other, even more mundane instances.

As laws proliferate, so do the number of violators. I've joked about Texas having 2,383 separate felonies on the books, including 11 involving oysters. And it's true. (There are also additional, oyster-related misdemeanors.) But the reason is that specific laws were passed to protect and/or regulate various industries or interest groups. And that's in part because the arms of government tasked with regulating industry are weak and atrophied from disuse, while over the last three decades the criminal-justice wing of government has grown increasingly powerful. So there was no financial regulator capable of stopping a Bernie Madoff, for example, but the feds are happy to give him a 150 year sentence when he's finally caught. Investors, however, would be better off if his activities were prevented on the front end, as they should have and would have been under a more robust regulatory structure. In that sense, de-regulation helps spawn overcriminalization, as does the decline of civil liability (via tort reform, etc.) as viable options for redress of grievances.

Even more than that, though, there's a pervasive, bipartisan mindset among the governing class which encourages the view that criminalizing undesirable behavior is the best or even only way for government to influence it. Outside of tax cuts aimed at job creation, there's very little discussion of creating incentives instead of (or even in addition to) punishments - few carrots to go with the stick. As such, Lessig's observation reminds those in government of a lesson learned by every parent: that punishment may inspire fear, but it may also generate defiance when it's seen as unfair or hypocritical. I suspect the professor is right we should be worried that a new generation of American youth has grown up with the knowledge that many of their everyday activities have been criminalized - not just online but everything from playing hooky to scribbling their sweetheart's name on their desk at school. And I wonder with him, what are the societal consequences when that situation becomes the status quo and most people come to view obedience to the law as a situational obligation?

Texas sees solitary confinment numbers decline

Reporter Kevin Johnson at USA Today has a story titled "States start reducing solitary confinement to help budgets," June 13) which opens:

State prison officials are reducing the number of offenders in solitary confinement — once among the fastest-growing conditions of detention — as budget pressures, legal challenges and concerns about the punishment's effectiveness mount.

States such as Mississippi, Texas and Illinois have decreased the number of inmates in solitary confinement, a dramatic acknowledgement, analysts say, that states can no longer sustain the costs of hard-line criminal justice policies. ...

The number of prisoners in solitary confinement — typically locked away for 23 hours a day — grew 40% from 1995 to 2000 when there were 80,870 segregated inmates, a study by The Commission on Safety and Abuse in America's Prisons found. The overall prison population increased 28% during that time. Isolating prisoners, the private study found, is often "twice as costly."

Texas' inclusion on the list surprised me, but here's the explanation: "Texas: A plan for 6,000 drug rehabilitation beds designed to divert offenders from prison had a side benefit, Republican state Rep. Jerry Madden said: a reduction in the solitary confinement population, from 9,343 in 2007 to 8,627 this year." A 7.7% decline may not seem like much, but when compared to the seemingly inexorable rise in isolation beds that preceded it, the trend is remarkable.

Particularly interesting to me is that the number of offenders in isolation declined more or less organically when Texas diverted relatively low-level offenders from the system. To my knowledge there was no concerted effort to reduce it.

See Johnson's prior coverage of solitary confinement issues for USA Today.