Friday Roundup: NIMBYism, Incarceration Incentives, and Len Bias' Fading Ghost

Here are a few quick, end-of-the-week links that didn't make it into full blog posts this week:

The Slow Fade of Len Bias' Ghost
That's the title of a Dallas Morning News column by Mark Osler, who says it's "pathetic" it took 24 years to reduce the crack/powder disparity in federal sentencing

Reentry Housing Inhibited by NIMBYism Run Amok
Most recently in Dallas and Houston. In Dallas short-sighted neighborhood interests succeeded in killing tax credits for four projects for reentry housing, while "without zoning restrictions in Houston there's little anyone can do to block" the project there. The Dallas News said "Tax credits, which can be sold to investors, are a main source of funding for low-income housing construction in Texas," and neighborhood opposition "counts too heavily in the Texas Department of Housing and Community Affairs' scoring process," according to those trying to implement these projects. The House Corrections Committee recently discussed whether all TDHCA's low-income housing credits should come with a stipulation that they not discriminate against ex-offenders.

Crime Lab News
Here's the latest newsletter from the DPS crime lab in Austin.

See You in Court
The City of Austin may be headed to federal court after the Austin City Council, under intense pressure from the local police union, rejected a settlement agreement negotiated by city attorneys over a racially charged police shooting. Debbie Russell from the Austin chapter of the ACLU has a response in the Austin Post to the city's decision.

Another Incarceration Incentive
I try to pay attention to the various institutional, financial incentives promoting mass incarceration, so I'm especially fascinated to read Scripps Howard reporting that under the State Criminal Alien Assistance Program, "communities compete for hundreds of millions of federal dollars by identifying illegal immigrant convicts they’ve jailed. Problem is, some 20 percent of people identified turn out to not be illegal immigrants — and many are actually citizens, according to a White House report."

FBI Agents May Have Cheated in Test on Surveillance Limits
Hundreds of FBI agents allegedly cheated on tests designed to find out if they understood legal limits on electronic surveillance. Says AP, "The inquiry threatens to be another black eye for the FBI as it tightens controls after years of collecting phone records  and e-mails without court approval. The brewing scandal has already upended management at one of the nation's largest field offices."

Does drug treatment for juveniles increase recidivism?

Back in January I reported on the bizarre finding that Texas Youth Commission inmates who went through drug treatment had higher recidivism rates than addicted youth who didn't receive those services, according to a legislatively mandated report (pdf). As mentioned then, the agency's "chemical dependency treatment was a flat-out failure, actually increasing recidivism compared to youth assessed as having chemical dependency who received no treatment." The problem had been going on for years. In 2007, the Dallas News ran a story declaring, "The Texas Youth Commission's drug treatment program produces graduates who are more likely to re-offend after release than addicted inmates who did not participate."

TYC has recently changed the treatment curriculum and it's too soon to analyze results from the new program, but these startling data left me scratching my head.

Then Time magazine ran a feature July 16 asking, "Does teen drug rehab cure addiction or create it?," and now I'm wondering if TYC's treatment curriculum was merely flawed, or if the whole concept of drug treatment for teens should be reconsidered. Reports Time:

Increasingly, substance-abuse experts are finding that teen drug treatment may indeed be doing more harm than good. Many programs throw casual dabblers together with hard-core addicts and foster continuous group interaction. It tends to strengthen dysfunctional behavior by concentrating it, researchers say. "Just putting kids in group therapy actually promotes greater drug use," says Dr. Nora Volkow, director of the National Institute on Drug Abuse (NIDA).

The exposure can be especially dangerous for impressionable youngsters. "I've known kids who have gone into inpatient treatment and met other users. After treatment, they meet up with them and explore new drugs and become more seriously involved in drug use," says Tom Dishion, director of research at the Child and Family Center at the University of Oregon, who has documented such peer influence in scientific studies.

In academic terms, the problem is known as deviancy training, or the negative impact of friends on teen behavior — what parents would simply call a bad influence. In one 2000 study, in which researchers measured how much time teens spent together and how much they encouraged their peers' misbehavior, Dishion found that social exposure to delinquent peers at age 14 accounted for 53% of adolescents' life problems five years later — including criminal convictions, sexual promiscuity, relationship issues and drug use. ...

In addition, researchers find, the harm of many teen drug-treatment programs may come not only from the negative influence of new relationships but also from the degradation of positive bonds with family. In a 2003 paper, Jose Szapocznik, chair of the epidemiology and public-health department at the University of Miami, found that teens who used marijuana but still had healthy relationships with their families saw those relationships deteriorate — and their drug habits increase — when they were assigned to peer-therapy groups. Among these teens, who were in treatment for a minimum of four weeks, 17% reduced their marijuana habit, but 50% ended up smoking more. "In group, the risk of getting worse was much greater than the opportunity for getting better," Szapocznik says, adding that in contrast, 57% of teens who were assigned to family therapy showed a significant decrease in drug use, while 19% used more.

Maybe the problem with TYC's drug treatment program wasn't a bad curriculum. Perhaps, if these assessments are accurate, intensive drug treatment may be a misguided approach for juveniles altogether, however successful the tactic may be for seriously addicted adults.

Arbitrator reinstated cop so lacking in credibility the DA won't use his testimony

Remember the San Marcos cop who an arbitrator reinstated after he was fired for lying and excessive force? Well he's back in uniform, but the Hays County District Attorney says he's no longer a credible witness and shouldn't be assigned to police work. Reports Patrick George at the Austin Statesman:

A San Marcos Police Department terminated for not being truthful on two occasions and a use-of-force violation remains back on the force, but is effectively unable to perform police duties after a decision by Hays County District Attorney Sherri Tibbe.

Officer Paul Stephens was indefinitely suspended last October over an incident where he used a baton against a woman who was not resisting and was not a physical threat, and for later making a false statement about the encounter in his report. However, an independent arbitrator ruled in June that the charges of charges of dishonesty and excessive force could not be substantiated, and Police Chief Howard Williams was bound by law to re-instate him.

But a June memo from Tibbe to Williams says that due to Stephens’ “history for dishonesty,” her office will be unable to call Stephens as a witness in any case and cannot prosecute any case in which he is an investigating officer. Stephens’ credibility problems could endanger cases when they go to trial, Tibbe argued, because her office is bound to disclose his history to defense attorneys.

Williams, who said today that he agrees with Tibbe’s decision, said that this means Stephens will remain on the force but can’t enforce the law or make arrests.

“She can’t put him on the stand,” Williams said. “A defense attorney would tear him up.”

This is the inevitable result when police chiefs are denuded of power to fire bad cops by civil service laws and arbitration requirements. This arbitrator reinstated a cop the District Attorney says so lacks credibility he can't testify in criminal cases any longer.

How much sense does it make for San Marcos to continue to pay a police officer who can't enforce criminal laws? But the arbitrator says he can't be terminated. So what's he supposed to do with his time every day? (A commenter at the Statesman suggested he "should be on permanent assignment to the Hays County animal shelter as the sole individual who cleans out the kennels.") As I wrote earlier about this case, this incident shows how "in Texas civil service cities, in most instances it's nearly impossible to fire bad cops no matter how badly they screw up. This guy's a statewide poster boy for that fact."

TX Supreme Court to review "lawless" leniency for Keller by Judicial Conduct Commission

No favor done for Judge Sharon Keller, apparently, goes unpunished. I described last week how the State Judicial Conduct Commission afforded her special treatment by applying a sanction more lenient than the ones seemingly required under the Texas Constitution. The given reason: If they'd gone with the harsher, constitutional penalty, Keller could not later sit as a visiting judge after she leaves office.

To thank them for that leniency, Keller's lawyer filed a petition with the Texas Supreme Court yesterday, reports the Statesman's Chuck Lindell, alleging "that the commission acted in a 'lawless' manner" by applying the lesser sanction. (See the full petition.) “The order violates the constitution and is void. At the very least, it is a gross abuse of discretion,” wrote Keller's attorney Chip Babcock. Chuck Lindell reported last Sunday:

"I don't think (public warning) is an option they have under the Texas Constitution," said Keller's lawyer, Chip Babcock. "The question is: How do you raise that (challenge), and who do you raise that with? It has got us scratching our heads."

Even the commission's director, Seana Willing, was caught off guard.

"In my opinion, the constitution requires that they do either a censure or a recommendation for removal, and they didn't do that," said Willing, who did not advise commissioners or sit in on their deliberations because she was, by law, a co-prosecutor in the Keller case.

First warning in 96 judges' proceedings

The unexpected action has left Keller and her prosecutors scrambling to adjust to a new playing field.

Had Keller been censured, her appeal would have been handled by a special three-judge panel that would base its decision on a review of the record, including testimony during last year's four-day hearing, transcripts of depositions and the many documents and motions generated by both sides. Like other appellate courts, the panel would hear oral arguments and issue an opinion at a future date.

But state law defines a public warning as a "sanction" — and sanction appeals are reviewed "de novo," Latin for "anew." A similar three-judge panel would disregard all earlier proceedings, and both sides would have to present their cases all over again — a process that took more than 30 hours at last year's hearing.

Neither side welcomes the prospect of plowing the same ground.

"If the appeal is de novo, it will of course wipe out what the commission has done, but it will also put Judge Keller through the unnecessary expense of a second trial," Babcock said.

Willing, presiding over a small agency with a limited budget for travel and other trial-related expenses, would have preferred censure as well. "It makes sense. We've already tried the case; we just need a record review," she said.

Keller might well be right that the SCJC abused its discretion by not doling out a harsher punishment: Even the director of the agency agrees they acted outside its purview. But I doubt seriously the Supreme Court will "issue a writ of mandamus ordering the commission to expunge the warning from all records and to drop its charges against Keller," as she's requesting. At most, I suspect they might order the SCJC to reconsider its punishment in light of the more limited range of options afforded them by the Constitution, but I'd be surprised (and rather scandalized) if they ordered dismissal in response to this writ. Time will tell.

MORE: From Kuff, the Texas Lawyer Blog, and the Supreme Court of Texas Blog.

DRP amnesty, indigence rules featured at Texas Tribune

I failed to mention that Brandi Grissom at the Texas Tribune this week had a feature on the DPS Driver Responsibility Program, new indigency and amnesty rules for which are due to be published as early as tomorrow in the Texas Register. Yours truly was quoted briefly in the article.

The Future of Juvenile Parole and Re-entry

The Texas Public Policy Foundation has announced a upcoming event that may interest Grits readers:

POLICY PRIMER - The Future of Juvenile Parole and Re-entry
August 12th, 2010

How can Texas enhance its approach to parole and reentry to break the cycle of youth crime so there are fewer victims and taxpayers pay less to re-incarcerate the same youths? Featuring:
 
    * The Honorable Jim McReynolds
    Chairman, House Corrections Committee

    * The Honorable Robert Eckels
    Former Harris County Judge

    * Cheryln Townsend
    Executive Director, Texas Youth Commission

    * David Reilly
    Chief, Bexar County Juvenile Probation Department

    Thursday, August 12, 2010
    11:30am - 1:00pm
    Texas Public Policy Foundation Offices - 900 Congress, Ste 400 - Austin, TX 78701

    Click here to register.

    For direct inquiries email Mike Joyce or call 512-472-2700.

What trick, what device, what starting-hole canst thou now find out?

Rodger Jones at the Dallas News sent Forensic Science Commission Chairman John Bradley a set of written questions - some of them pretty good ones, IMO - to which Bradley responded by saying Jones sounded like a "New York lawyer" and refusing to answer them. While Jones may be rightly faulted for the extra "d" in his name, the New York lawyer charge, he says, is unfounded: "I am neither a lawyer nor from New York. I neither sought nor got help from Barry Scheck's group in formulating my questions." Even so, no dice.

I thought then, since JB wasn't so inclined, I'd take a stab at guessing some of Bradley's likely answers, at least if one were to catch him in a particularly candid mood (Rodger's questions are in italics):

1. Your handling of the Cameron Todd Willingham case has been faulted as heavy-handed and politically motivated. What do you say to your critics?

JB: You say "heavy-handed," I say "dictatorial." But let's not mince words: I'm doing the job the Governor brought me in to do.

2. Draft recommendations to the Texas Forensic Science Commission appear to have reached a foregone conclusion of no negligence by arson investigators in the Willingham case. Will the final report go beyond this finding? 

JB: Yes, I'm pushing the commission to enact a "good intentions" standard where, so long as the expert witness believes the testimony they're giving, it will still be admissible in court even if it contradicts basic scientific tenets. I believe such a change would put this whole arson issue to bed once and for all.

3. The law says the commission's final report on a negligence case must address "corrective action required by the laboratory, facility or entity" involved. Is the commission obligated to assess whether the State Fire Marshal's Office has upgraded standards?

JB: Hahahahahahahahaha!

4. The recommendations clear Willingham investigators of negligence because they used forensic techniques accepted at the time. Yet the commission's paid expert said investigators didn't meet even that standard. How do you square the two?

JB: It's simple, really. When experts say things you don't like, you ignore them and make up findings to say whatever you want. You non-lawyers wouldn't understand but we do it all the time in court.

5. Experts say hundreds of arson defendants have been convicted based on similarly outmoded standards. How should the commission or state fire marshal address that claim?

JB: With smirks, sarcasm and derision. As far as I'm concerned, if they were convicted, they're guilty. Post-conviction exonerations are for pussies.

6. Why did the committee of four commissioners working on the Willingham case meet in private? Shouldn't the public be aware of factors that members weighed in recommending no negligence?

JB: Duh! Because if we meet in secret we can't be held accountable for anything we say or do. Are you new?

7. Will the committee draft the final report in public?

JB: There will be a final report released at some point in the future - an extremely distant point. I intend to provide instructions regarding its release in my last will and testament, and historians can see it after I pass.

8. What is your opinion of the role of Barry Scheck and the Innocence Project of New York in the Willingham case?

JB: Are you kidding? I despise that truculent little gnome. For that matter, I don't think too highly of you, either.

What a friggin disgrace for a public official to refuse to answer questions on the grounds that a reporter from Dallas sounds like a "New York lawyer." Going forward, as he seeks answers directly from the source, perhaps Jones should add one more question to his list, echoing the prince in Shakespeare's Henry IV to inquire, "What trick, what device, what starting-hole canst thou now find out to hide thee from this open and apparent shame?"

* * *

Relatedly, here's a bit more coverage on latest from the FSC:

• Rick Casey, "Of science, witches and arson trials," Houston Chronicle
• Jordan Smith, "Who to blame for faulty fire science," Austin Chronicle

A stolen life: Latest DNA exoneree did 27 years for rape he didn't commit

Several readers emailed to inform me of yet another DNA exoneration out of Harris County. Reports the Houston Chronicle ("DNA clears man 27 years after rape conviction," July 28):

A Houston man prosecutors now say is innocent is expected to be freed this week after serving more than 27 years in prison — the longest time behind bars of any Texan who has been exonerated — for a rape he did not commit.

Michael Anthony Green, 45, is expected to be in court Thursday where his attorney, Bob Wicoff, will ask that he be freed on bail while the case moves forward.

If freed, Green would be the eighth local man let out of prison in recent years, and the second in a week, after serving time for a crime he did not convict.

"He is innocent," Wicoff said. "We've got the bad guys too. We've pegged the bad guys."

Green was sentenced to 75 years in prison for the 1983 rape of a Houston woman based on faulty eyewitness identification, Wicoff said.

Wicoff credited attorneys and investigators in the Post Conviction Review Section of the Harris County District Attorney's office, created by District Attorney Pat Lykos, with finding clothing stored in a warehouse that had been worn by the victim during the crime, then testing it for DNA evidence. The results excluded Green.

The Harris DA's "Post Conviction Review Section" sounds a lot like the Conviction Integrity Unit Craig Watkins set up in Dallas. Lykos clearly is taking the issue of false convictions much more seriously than her predecessor, who tended to fight such claims tooth and nail. Her first assistant made that point:

In a press release, Lykos' First Assistant Jim Leitner appeared to slam prior administrations for the length of time the case stalled.

"The evidence in this case had been sitting in the District Clerk's Office for 27 years, and no one had taken the initiative to do anything with it in the past," Leitner said. "The difference now is that you've got the Post Conviction Review Section looking into it — and that made all the difference in the case of Mr. Green."

Good for Pat Lykos. But even more to the point, good for Mr. Green! Imagine going to prison for a crime you didn't commit at 18 and being exonerated at 45! Unfathomable. I also feel terrible for the poor gal whose testimony put Green behind bars. First she was a crime victim, then her confused error inadvertently helped victimize someone else in a profound and dreadful way. Anybody would feel awful at learning of such a mistake.

Two quick takeaways from this story: 1) Police departments need to update their eyewitness ID procedures, pronto, to keep this from happening again, and 2) it doesn't make a DA weak to admit past mistakes, it enhances her credibility.

'Harris County sweetens public defender proposal'

The title of this post is the headline to a Houston Chronicle article published yesterday bringing news that Harris County has altered its proposal for a public defender office to include more courts after the Task Force on Indigent Defense balked at funding a more limited plan:

Seeking to strengthen its bid for state funding to open a public defender office, Harris County has changed its application to ask for less money and to propose public defenders in more courtrooms.

If the state Task Force on Indigent Defense approves the county's request for $4.1 million on Aug. 25, the county will launch a hybrid system of a public defender and court-appointed attorneys in February. The county's indigent defendants currently are represented by court-appointed attorneys selected from a pool of private practitioners.

Today, Commissioners Court will consider reducing the amount of grant money sought from $4.4 million to $4.1 million in response to concerns from the Task Force that the county was not covering enough of the administrative costs of running an office. It also will consider authorizing the county's purchasing agent to start looking for a chief public defender to run the office.

The county's previous version of the application received criticism from academics, local ministers, defense advocacy groups and the local state senator who authored the law authorizing the creation of public defender offices in Texas counties. Among the criticisms were that not enough judges planned to participate, that the office would not serve high-level felony defendants and that the office was subject to control by the judiciary and Commissioners Court.

Originally, 11 of 22 district court judges had volunteered to use a public defender on felony trial cases and only three agreed to the new office's use on appellate cases. Now, 20 judges have bought in on felony trials and 18 on appeals.

US House votes to reduce crack/powder disparity

I just finished watching the US House floor debate on S1789 reducing the crack/powder disparity in federal sentencing guidelines from 100-1 to 18-1 and am pleased to see the bill is now headed to the President in a rare bipartisan moment for Washington. I'd prefer they equalize it - the issue is the quantity of drugs required to trigger federal mandatory minimum sentences - but this is a substantial improvement. The bill raises from 5-28 grams the amount needed to trigger mandatory minimums.

During the debate, Texas Congressman Ron Paul quipped that instead of the "Fair Sentencing Act" the bill should be called the "Slightly Fairer Sentencing Act" because they didn't reduce it to 1:1, calling to repeal the entire war on drugs. Houston Congresswoman Sheila Jackson Lee made some strong comments in favor of the legislation, and even authors of the original 1986 legislation said they couldn't justify the 100-1 disparity.

Texas Congressman Lamar Smith opposed the bill, saying Congress shouldn't reduce penalties for any drug crimes. The bill "sends the wrong message to drug dealers," he said, warning that the law would wreak havoc, using bombastic language about crack "ravaging" communities. It turned out not to matter; the legislation passed on a voice vote.

FWIW, in an era when everyone says Congress spends too much and never cuts the budget, the Congressional Budget Office says "S. 1789 would lead to reduced spending for the federal prison system totaling $42 million over the 2011-2015 period," likely much more in the out years.

President Obama has said he'll sign this landmark legislation if it reaches his desk, so congrats to everyone who worked on it for what appears to be a substantial, if decidedly incremental victory.

MORE: Via press release from Families Against Mandatory Minimums:

While S. 1789 will not eliminate the mandatory minimum for trafficking crack cocaine, it will substantially reduce racial disparity in cocaine sentencing.  The infamous 100-to-1 sentencing ratio will be reduced to 18 to 1.  Moving forward, 28 grams of crack cocaine will trigger a five-year prison sentence and 280 grams of crack will trigger a 10-year sentence.   Once enacted, the law could affect an estimated 3,000 cases annually, reducing sentences by an average of about two years and saving an estimated $42 million over five years. The bill does not provide any relief for people in prison serving crack cocaine sentences because it does not provide for retroactivity. The bill also provides for enhanced sentences for drug offenses involving vulnerable victims, violence and other aggravating factors.

For more detailed information about the history of the federal crack disparity and the changes that will result for S. 1789, click here. 

The bill passed out of committee 16-9. See additional commentary from Sentencing Law and Policy, the Sentencing Project, AP, Stop the Drug War, and Huffington Post.

Civil litigation over completely corrupt jail on OK border

An array of civil litigation has arisen related to the outrageous scandal at the Montague County jail last year, where the Sheriff and other leos allegedly took a cut from drug dealing and coerced sex from inmates. Reports the Wichita Falls Times Record News ("Four women file suit in sheriff scandal," July 28):

As a long list of criminal complaints related to the Montague County Jail scandal works out of the courts, a spate of civil cases related to the scandal are working their way in.

Four women have filed suit in federal court in Wichita Falls in July. Shelley Wrea Lemon, Lashana Dykes and Dawnita Knight filed suit jointly on Thursday. Dee Ann Green filed suit July 15.

Lemon claims former Sheriff Bill Keating came to her home in July 2008 requesting sexual favors in exchange for keeping her invalid husband out of the jail on probation violation warrants. She claims Keating told her he had a lot of power and “could be her best friend or her worst nightmare,” and if she made the wrong decision, he would “bust her entire family.” Lemon claims she had to move away from Montague County to get away from Keating.

Dykes claims within an hour of being arrested on warrants in 2008, Keating drove her to a remote location in his patrol car and suggested she perform oral sex on him. She says he told her he would make her life “a living hell” if she did not cooperate. Dykes claims she was routinely required to go to Keating’s office and display her breasts for him and on one occasion was handcuffed while Keating attempted to rape her. She said a jailer knocked on the door and interrupted the assault.

Knight claimed that while she was incarcerated, she was required to perform massages on the sheriff and view pornographic photos on his office computer. She claims on two occasions she was required to have sex with a male jailer.

In her separate suit, Green claims during her incarceration in 2008, Keating demanded she perform oral sex in exchange for medications she required and that Keating tried to persuade her to have sex with another inmate.

The July lawsuits follow a suit filed in January by former jail inmate Luke Bolton, who claims that in summer 2007 he was required by jail guard Darlene Walker to have sex with her in a shower stall. He also claims Walker sometimes recorded their sexual activities on videotape. Bolton’s suit claims sexual predation of inmates was a common custom and done with jail administrators’ knowledge and that Keating “followed a custom of sexual congress with prisoners.” His suit also describes drug dealing within the jail from which the sheriff was paid a percentage. He claims he was required to become an “enforcer” and perform “hits” on other inmates with whom Keating was dissatisfied.

In all of the civil lawsuits, the plaintiffs ask for unspecified monetary damages from Montague County.

See related Grits posts:

• Montague jail flooded with contraband, closed after FBI raid
• More border sheriff criminality, this time on the Red River
• Questions regarding a completely corrupt jail
• Inmate used as enforcer by corrupt Montague Sheriff
• When did rape become just a civil rights violation?

ACLUTX on truancy, youth rights

The ACLU of Texas filed a lawsuit in Hidalgo County related to how truancy cases are handled in Hidalgo County, according to Valleycentral.com:

The American Civil Liberties Union has filed a class action lawsuit against all nine justices of the peace regarding the way they handle truancy cases.

The lawsuit against the JPs, Sheriff Lupe Treviño and Hidalgo County was filed in McAllen federal court late Monday afternoon.

The ACLU asserts that teens, who were over the age of 17 and cited in truancy cases, had to spend up to a week with adults in the Hidalgo County Jail.

The civil rights group claims many of the teens were ticketed for truancy and other school-related offense before their 17th birtndays.

The ACLU claims Hidalgo County has created a "school to prison pipeline" burdening teens from poor families with heavy fines that they can't pay resulting in jail time.

See their press release and additional background on the case. MORE: From the McAllen Monitor and the Houston Press.

Relatedly, ACLUTX will be holding a one-day conference this weekend in Austin titled "Youth Rights in Texas: Sensible School Discipline" in conjunction with the group's annual meeting.

Cuts to state mental health treatment would shift costs to local jails

As we approach an 82nd Texas Legislature that will be dominated by big-picture budget decisions, arguably cuts to mental health spending may be the biggest looming crisis for the justice system at all levels. Lillian Aguirre Ortiz of Mental Health America of Greater Houston recently outlined the effects of proposed cuts to mental health services in a column in the Houston Chronicle:

While legislators are expected to face a difficult financial situation during the 82nd Texas Legislature, our state's leadership needs to fully understand and consider the ramifications of the proposed $134 million in cuts. Untreated mental illnesses lead many individuals to cycle in and out of homelessness as well as our emergency rooms, jails and prisons. Lack of treatment also leads to an increase in the utilization of police man-hours since law enforcement personnel are often called in to deal with individuals experiencing a mental health crisis. Any further erosion of the limited services currently provided to the state's most vulnerable mental health patients will exacerbate what should already be considered a serious public health and public safety issue.

The proposed cuts include $80 million that would be taken from the state's 39 publicly supported community mental health centers, which provide psychiatric care for poor or uninsured people. The cuts would also eliminate services to 11,000 adults and 2,000 children across Texas. As it is, more than 900 adults are on a waiting list each day for mental health services from the Mental Health Mental Retardation Authority of Harris County (MHMRA), our area's public mental health center, for treatment of schizophrenia, bipolar disorder and severe depression. The approximately 400,000 adults in our area with other mental illnesses have to try and find services elsewhere regardless of their ability to pay for treatment.

In addition to the adults waiting for care, 75 percent of our community's children in need of help from the public mental health system do not receive treatment services. Perhaps this is why half of the children in the Harris County Juvenile Probation Department have a diagnosable mental illness and 55 percent have been diagnosed with a substance abuse and/or chemical dependence problem.

An additional $44 million in proposed cuts would eliminate 183 beds, or 12 percent of their total capacity, from five state psychiatric hospitals. These facilities are already unable to take many of the state's sickest individuals due to a lack of available beds. As a result, the Harris County Jail houses an estimated 80 inmates each day who are simply waiting for one of these beds, a scenario repeated throughout the state. Eliminating the 183 beds, which have the potential to serve thousands of individuals, will further contribute to the fact that the Harris County Jail is now the largest provider of mental health services in Texas.

To make matters worse, a $10 million reduction to psychiatric crisis services, which would cut care to 6,000 people statewide, is also included in the proposal. An overall lack of community based mental health services, which help keep people stabilized and out of expensive crisis care, has led Texas to rely heavily on its mental health crisis system. Cutting this safety net for the sickest individuals is not only irresponsible, it's inhumane.

Such cuts would inevitably, inexorably create further crises down the line: For example, cutting the number of state hospital beds will increase the backlog of mentally ill people warehoused in county jails awaiting competency restoration. Indeed, county jails are already packed with mentally ill inmates due to a lack of community based services. The FOX station in El Paso reports that 4 in 10 jail inmates there have been diagnosed with a mental illness. Not only does cutting state mental health funding shift costs to locals, dealing with them at the jail is a lot more expensive than community-based mental health treatment, so such cuts would be a de facto decision to treat these offenders in a more expensive, less therapeutic fashion, and then only after they've harmed the community enough to warrant incarceration. That's just not smart policy.

In addition to cuts at the Department of State Health Services, the Department of Criminal Justice has suggested that if it's required to make deep spending cuts it will slash mental health spending, drug treatment and diversion programming first. All told, mental health funding appears to be a likely first choice for the chopping block across the board.

On the corrections budget, I'm reasonably confident it's possible to cut costs safely if the state closes prisons and sustains or preferably doubles down on diversion and community supervision funding. However I'm not nearly so sanguine it would be safe to dramatically slash mental health spending, and my suspicion is that doing so would radically increase costs in other areas, particularly local jails and courts.

For those concerned that state budget cuts next year might harm public safety, don't worry about closing prisons. Worry about the consequences of reduced access to mental health treatment.

RELATED: See "Closing the Barn Doors" from Murray at Life at the Harris County Criminal Justice Center.

Preoccupying food question requires reader input

I have an off-topic food-related question I'm going to throw out to readers just on the off chance somebody has special insight, even though doing so requires me to apologize for self-indulgently straying far from the usual subjects covered on this blog.

My query concerns what to do with fresh peaches. There's a peach tree in my front yard that's about 10 years old, and which is fruiting spectacularly for the first time this year thanks to all the extra rain we're getting. Over the last decade during the drought, its fruit would never quite ripen and squirrels would pick off any promising candidates prematurely, often taking one bite then throwing the peach on the ground. This year our tree has been overloaded to an amazing, ridiculous degree. We've probably harvested more than 200 peaches so far (and likely lost a similar amount to squirrels, bugs and neglect), and even so the limbs are still sagging under the weight of those that remain - the next few days promise a whole bunch more, though we seem to be on the downward slope of the cycle. They taste spectacular and it's really been a wonderful, summer surprise from a tree that we'd resigned ourselves would provide more shade than edibles. There are also two fig trees in the back yard that have produced far more figs than we've remotely known what to do with.

My question: I've got a decent cobbler recipe, but what else besides fruit salad am I supposed to do with this overwhelming quantity of peaches? We've eaten them at every meal, given away a boatload and still have multiple bags of sliced, fresh peaches completely filling up a large freezer, with more coming every day. I'm the house cook so it falls on me to figure this one out. Send via email or post in the comments any recipes or suggestions along these lines. Ditto for figs, which I've tried relatively sparingly but only because I simply know few techniques to use them, (though they're quite plump, wonderful, and delicious just consumed raw). The dilemma stems from the quantity - I need more options to use them up without making the same couple of dishes over and over.

The wish list, an empty, overbuilt jail, and the irony of short-sighted NIMBYism

A few blogworthy odds and ends:

Law enforcement wish list
Law enforcement interests gathered in North Texas this week to hash out their collective legislative wish list.

Jail pitched as paying for itself losing contracts
Add Dickens County to the list of places that overbuilt their local jails aiming to lease extra space for a profit, only to find taxpayers saddled with sizable debt for a mostly empty facility now that demand for beds is dropping.

Can someone please audit metal detectors at juvie detention centers?
A teenager somehow got a gun through intake at the juvenile detention facility in Tyler and opened fire on a juvenile detention officer (who thankfully escaped uninjured), an incident reminiscent of the one last year in Harris County where a juvenile got a gun through a metal detector and strip search at the juvenile detention facility there. Once may be a quirk; twice is a pattern and I'm guessing these may not be the only examples of lax security procedures at juvie detention intake.

NIMBYism short-sighted, counterproductive
NIMBYism, this time in Dallas, remains the biggest obstacle to creating much-needed supportive housing for the mentally ill. Poor, mostly minority neighborhoods complain the facilities shouldn't be predominantly located in their area, but the irony is, if they're not built, ex-offenders will predominantly return to their neighborhoods, anyway - they'll just be more likely to be homeless and desperate.

Ex-TYC staffer charged with sexual assault
Another (former) TYC employee, this time from the Evins Unit in South Texas (he was fired last year in 2003 over separate allegations that he tried to attack one of his detainees), faces allegations of sexual assault against three teenagers. I normally wouldn't mention the case at this stage if TYC hadn't had such a tumultuous recent episode requiring sexual abuse of youth under its care, but in that light perhaps it's worth keeping the case on our radar screen.

Official Voyeurism: Open record exemptions leave only voluntary disclosure of camera abuses

A Dallas area TV station last week reported:

A Dallas County Sheriff's Lieutenant is out of a job after the department says he used jail cameras to watch female inmates in the shower.

Lt. Steven Gentry, an 18-year veteran of the department, violated departmental policy, according to Sheriff's spokesman Kim Leach.

An internal affairs investigation found his conduct unbecoming.

Gentry was fired Monday.

Back in May, he was an instructor for a class called "Ethics in a Correctional Setting" at the sheriff's training academy.

The ubiquity of modern surveillance apparatus raise this question wherever anyone might get undressed, be it the changing room at the mall or the local swimming pool, but particularly in correctional environments. As Grits lamented recently, the Legislature after 9/11 eliminated all requirements for transparency and open records regarding all types of government camera surveillance, completely deregulating camera use and leaving the details to individual state and local agencies. In the case of the Dallas jail, at least there are apparently policies in place forbidding misuse of cameras, and some willingness by the Sheriff to enforce them. That's not universally true, though, and thanks to a near-complete exemption under the Public Information Act, there's no way (besides this kind of laudable self-disclosure) for the public to investigate when or how government surveillance cameras are abused. Sheriff Valdez deserves credit, to be sure, but especially because if she'd decided to cover up the incident, there's no way anyone would ever know.

Authors explore stories of Texas exonerees

This press release (pdf) notifies us of the upcoming publication of a new book telling the stories of a dozen Texas exonerees.

 Reverend Dorothy Budd rejoiced at the recent announcement that deaf inmate Stephen Brodie may become the latest Texas prisoner to win his freedom after being wrongfully convicted.

Budd, a former child-sex-crimes prosecutor for the Dallas County District Attorney’s office, wants the voice of Brodie, along with men who have already been exonerated in Dallas County, to be heard. She and her daughter Peyton share the men’s experiences in the upcoming book Tested: How Twelve Wrongfully Imprisoned Men Held onto Hope, to be published this October by Brown Books Publishing Group.

In 2009, the Budds became interested in the plight of these wrongly convicted men and requested a meeting with Dallas County DA Craig Watkins where they learned that of the cases his office selected with DNA viable for testing, about half of the tests went on to prove the men’s innocence. Dorothy and Peyton became convinced that their stories must be told. With DA Watkins’ assistance, the Budds interviewed the men and from these conversations Peyton wrote their stories and the book Tested was born.

“Every one of these men has lost something that can never be restored,” said Dorothy Budd. “We hope that the powerful stories in Tested cause readers to reexamine and reevaluate prejudices and preconceptions.”

By allowing each of the men to tell his story in his own words, Tested runs the emotional gamut from deep despair to final vindication. Along the way, the authors discovered how the men kept their faith and hope during their years of incarceration.

“When you get convicted for something you didn’t do, and hear that gavel hit along with the words ‘we find this man guilty,’ and you do time,” says exoneree Billy Smith. “Whether it’s a day, a week, a year, or twenty years…that takes something. It takes a bite out of you.”

Dallas leads the nation in exonerations of wrongfully convicted men. To date, more than twenty men have been released. These men were not just “released” but freed from prison with their convictions expunged, with a pardon from the governor and an apology from the DA.

For more information and to schedule an interview with the authors, please contact Cathy Williams, Brown Books Publishing Group at 972.381.0009 or via email cathy(dot)williams(at)brownbooks(dot)com. Additional information can be found at www.testedthebook.com. 

Relatedly, the Lubbock Avalanche Journal brings word of a new book on Timothy Cole's posthumous exoneration: Fred McKinley's “A Plea For Justice: The Timothy Cole Story.” From the Avalanche Journal:

Cole's brother Cory Session said the book should be required reading for law officials to prevent similar situations from occurring in the future.

"This book was put out because it's a blueprint for wrongful convictions," he said.

Ruby Session, Cole's mother, said the book is an accurate portrayal of the situation that occurred to her son and provides readers with an opportunity to see how all of the events unfolded from the beginning.

"I hope the average person knows it could happen to them," Ruby Session said. "We don't want this to happen anymore."

One should never underestimate the impact of storytelling, and these stories supply a powerful counternarrative to the typical Law & Order-style portrayal of prosecutors in white hats and criminal defendants as scum seeking to somehow wiggle out of justice. The Kafkaesque nightmare endured by Cole and the other exonerees can't be adequately described using the terms and means of the policy wonk, so these stories fill an important gap in the debate. It's impossible to fix a problem if one never examines in detail what went wrong.

States seek to fix broken probation systems

Looking outside Texas' borders for just a moment, let me point out a couple of notable stories from other states on the usually sleepy subject of community supervision.

An investigative report from the Boston Globe on the Massachusetts probation department found cronyism in hiring, dramatically inflated caseloads aimed at boosting state allocations, and a GPS monitoring program that was expensive and failed at most of its fundamental goals. Their risk assessment instrument labels 2/3 of defendants as "maximum" threats, far above the rates found elsewhere. An independent counsel has been appointed to investigate a situation that sounds like a complete clusterf&%k..

Meanwhile, AP has a story, "Study finds Ohio probation system fragmented," citing a study by the Council of State Government Justice Center which found that "offenders who commit minor drug and property crimes are often supervised for years, while inmates who pose a high risk to public safety are released from prison without supervision." Says AP:

California is trying to slow the so-called "churning" of inmates by better managing minor parole violators in hopes of reducing the prison population by 6,500. In Texas, parole and probation violators are sent to detention facilities outside the prison system rather than re-imprison them.

The Ohio study, to be unveiled at a daylong symposium, found that four of every 10 inmates serving short sentences have a low risk of re-offending. Two of every three committed property crimes or were drug offenders, and have two or fewer prior convictions. 

The issue of estimating risk for low-level drug and property offenders is a recurring theme in both these stories, which reminds me I still need to read (and then post on) Marc Levin's latest report (pdf) on the use of risk-assessment tools in community supervision. For such a technical subject, it's a particularly important one.

"Never in the civilised world have so many been locked up for so little"

I should reference this notable Economist piece on US incarceration policies, "Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little," which touches on many themes common to this blog. Here's a taste:

Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them. 

Definitely read the rest. I agree with most of what's written here, and most of it goes double for Texas, where one adult in 22, as opposed to one in 31, is under the control of the criminal justice system. An excellent macro-analysis; the comments were interesting as well.

'Punishment at jail for families, too?' Might web video solve visitation access?

The part of the title in quotes is the headline of a San Antonio Express-News story yesterday about Bexar County Jail visitation that opens thusly:

Some days Sylvia Gomez thinks it is harder for her to get inside the Bexar County Jail to visit her son than it would be for him to break out and come to her.

It's not the strict dress code, invasive security measures or even the agitated and sometimes unruly residents of the imposing red-brick fortress.

For Gomez, 62, and thousands of other visitors, the obstacle is far more mundane: marathon waits in long lines in the summer sun.

Apparently there's a dispute regarding whether all the visitors possible are let inside to wait for visitation hours:

A lobby with a seating capacity for 80 people is just inside the jail entrance, but most days guards allow a fraction of that number inside at a time — often as few as 20 people, agreed numerous visitors interviewed over several weeks.

“They treat us worse than the criminals. It's degrading,” said Connie Torres, 62, who is diabetic and suffers from a joint condition called fibromyalgia, which makes it difficult for her to sit or stand for long periods.

Jail officials say they let 80 people at a time wait in the lobby. Tomasini said that policy has been in place for months. “Elderly and handicapped are given priority,” she said.

Visitors flatly deny it, saying guards only began allowing that number as recently as a week ago, when a reporter was there.

This story made me think: Some jails are switching to video visitation, though in most cases families must still come down to the jail to use it. That seems unnecessary, inviting this kind of problem to fester. Once video visitation becomes common, I wonder if there's a need in the era of cheapo webcams for families who won't get contact visits to come down to the jail at all? Certainly that would help resolve this situation, and could also boost inmates' connections to family and others in their lives trying to help them. (It might be an even more appropriate suggestion for TDCJ, where many families face long drives for visitation.) It should be possible to create user accounts to access the system that could monitor record conversations just like they do now. I've thought for a long time jails and prisons should make it easier for folks to visit; maybe that's the way to do it? OTOH, perhaps there's some intangible extra benefit from an in-person visit, particularly for kids, that justifies lamenting a shift to video.

I don't yet have an opinion on replacing in-person visitation with video, though it's commonly part of new jail construction these days and appears to have become the wave of the future without really much stakeholder debate. At the state level, if UTMB can deliver medical care via video, TDCJ could probably do the same for visitation if the Lege directed it. But is it a good idea? What do folks who participate in such visits think of the video option? What are the benefits and drawbacks? And are there good arguments for requiring video visitors to come to the jail, or might it be possible to provide secure online access?

Corpus police won't chase traffic violators or non-DWI misdemeanants

The Corpus Christi PD implemented a new high-speed chase policy this week, reports the Caller-Times ("Corpus Christi police update pursuit policy," July 24): "It is now the department’s official policy not to pursue motorists for traffic violations or misdemeanors other than driving under the influence, Cmdr. Steve Mylett said." The chief explained the reasoning behind the change:

“We can’t get into a situation where we’re endangering the public more than the individual, if left on the streets, would endanger the public,” Police Chief Troy Riggs said. “The first thing is to protect human life.”

Last year, the department’s officers were involved in 76 high speed chases, Riggs said. About 80 percent of those were with traffic violators who didn’t necessarily need to be pursued at speeds of 80 to 100 mph, he said.

Further:

Before changing the policy, officials talked to other departments that had increased their requirements to start or continue a pursuit. They were told that the number of people fleeing from officers did not increase and that most of the people who did were caught eventually, Mylett said.

 With the number of on-the-job officer deaths up so far this year, this is a wise move to protect both officers and the public. About 2/3 of on-the-job police deaths occur during traffic accidents, many during high-speed pursuits.

See related Grits posts:

• Dozen Dallas officers disciplined for high-speed chase violations
• Officer death contradicts Houston PD claims that all its cops wear seat belts
• Accidents mount in face of Dallas sheriff, constables' outdated pursuit policies
• Houston PD high-speed chase policy injures dozens every year
• A suggestion for reducing life threatening risks to police officers
• Texas leads nation in 2007 officer deaths
• Blogversation on high-speed police pursuits

If arson science in Willingham case was 'flawed,' what about other, similar cases?

Two pieces of news from yesterday's Forensic Science Commission meeting in Houston stand out: 1) John Bradley's new, unilateral legal interpretation declaring the FSC couldn't investigate the Todd Willingham case was unanimously rejected, and 2) a committee examining the case said in an interim finding that "flawed science" was presented  in the Willingham case, but no negligence or misconduct by investigators occurred. Kuff doesn't mince words about his opinion of the proceedings.

The bombshell here is the finding that the Willingham case was based on "flawed science." As for whether there was negligence or misconduct by investigators, Jeff Gamso gets it right: "Excuse me, but who cares about that?  I mean, sure, we don't want negligent or dishonest investigations.  But this isn't about placing blame.  It's about figuring out what went wrong and how to do better." Reported AP:

Patricia Cox, Willingham's cousin, told commission members she appreciates the group's acknowledgment the forensic evidence used to convict her loved one was flawed.

"Even though there may not have been any malice or intent by fire investigators about not being informed on current standards, that doesn't excuse the fact that based on this misinformation, Cameron Todd Willingham was executed and that can't be corrected," said a tearful Cox.

If the fire science used to convict Willingham was flawed, it hardly matters whether the error was intentional; it sets off major alarm bells: The same fire science was used in hundreds if not thousands of other arson convictions across Texas. CNN quoted state Sen. Rodney Ellis making that point:

On Friday, he said he was "happy" to hear the investigation would continue, but concerned that the investigation was looking for misconduct and negligence in the wrong place.

"Unfortunately, the commission is off-track in terms of what it should be investigating," he said in a statement. "It was painfully apparent that many FSC members believe that flawed science was used in the Willingham conviction, but the FSC does not seem interested in looking at the bigger picture: When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?"

The idea that potentially hundreds of others were falsely convicted of arson based on the same junk science has yet to be widely discussed, but it's almost certain there are many other, similar cases out there, including some people still in prison, some on parole, and some entirely off paper. All deserve to have their names cleared.

In Willingham's case in particular, perhaps it was perhaps excusable not to know back in 1992 that the testimony concluding he committed arson was wrong. But it was inexcusable for the courts and the Governor's office to allow the man's execution to go forward based on junk science in 2004, when the standards for arson investigation had (supposedly) long since formally changed.

Of course, that's precisely the conclusion the Governor was hoping the Commission would formally put off until after the November election when he appointed its new, obstructionist chairman and gave him his marching orders (or more accurately, his stalling orders). It's a tribute to the fact that Mr. Bradley is receiving pushback from his fellow commissioners that even this tepid, interim conclusion was publicly released.

Latest exoneration out of Houston based on false eyewitness ID

Allen Porter walked free an innocent man in Houston yesterday after DNA and fingerprint evidence convinced Harris County DA Pat Lykos to reopen the case after 19 years. Allan Turner at the Houston Chronicle described the emotional scene in court:

Dabbing at her teary eyes, state District Judge Joan Campbell said Thursday she will recommend that authorities free a Houston man who has served 19 years — almost half his life - in prison for a sexual assault he did not commit.

As members of his family jumped from their seats in tearful ecstasy at the judge's decision, the prisoner, Allen Wayne Porter, 39, first shed tears, then smiled broadly.

Campbell advised lawyers to return to her court today to explore ways Porter can be released on bond pending a final decision in the case by the Texas Court of Criminal Appeals.

"Good news!" said Porter's court-appointed lawyer, Casey Garrett, at the end of the day-long hearing. "I am confident the CCA will agree with Judge Campbell. … It is really hard to wrap your mind around the fact that someone spent 20 years in prison for a crime he didn't commit."

This morning Campbell set Porter's bond at $30,000. His lawyer said Porter could be released later today.

If the court accepts her recommendation, it will order a new trial. Bob Loper, the special prosecutor, said today that he would move to dismiss the case, so he would not be retried.

According to the Chronicle, "Porter was arrested at the courthouse while attending [his nephew's] trial with other family members after one of the rape victims identified him as her attacker." Can you imagine! I wish Mr. Porter luck: Congrats to him and to everybody involved on this belated victory.

Tulia documentary nominated for Emmy

Following news that the "Tulia law" requiring corroboration for informants in undercover drug stings is still working as intended to prevent drug convictions without adequate evidence, I'm pleased to learn from Rev. Alan Bean at Friends of Justice (a group founded in 1999 to fight the Tulia raids) that the documentary film "Tulia, Texas" has been nominated for an Emmy. He writes:

Kelly Whalen and Cassandra Herrman invested years of their lives making “Tulia, Texas” and their dedication is being recognized.  The piece they created for the PBS program Independent Lens was recently nominated for an Emmy.

According to the folks at Independent Lens, “TULIA, TEXAS shows how America’s war on drugs and its over-zealous law enforcement, combined with racial divisions, have exposed deep-seated animosities and even starker injustices.”

But Whalen and Herrman dealt with a painful subject in a compassionate and understated way.   The Independent Lens website now features a “Tulia talks back” section with comments from folks on both sides of the drug sting controversy.  The program comes in for some criticism from those who didn’t like seeing their community branded as uniquely racist; but the comments are generally appreciative, even laudatory.

Page Lacey Heisser, a woman who grew up in Tulia, left this comment.  “One of the strengths of the film is its plain explanation of how rural economics, politics and small town justice converge to influence decent citizens of a town towards making such bad decisions. I think Tulia—like other small towns—is made up of women and men who are focused on their families, their jobs, local sports, church events and keeping their heads above water.”

Page wishes “Tulia, Texas” was a mandatory part of the school curriculum in her home town.

I was pleased to meet and dine with Whalen and Herrman after their film premiered at SXSW, and I join Alan in wishing them luck on their Emmy quest. It's amazing how reverberations from that episode more than a decade later continue to influence drug policy debates and, increasingly, American culture.

Reversed and aquitted: 80-year drug sentence overturned based on 'Tulia law'

Liberty and Justice for Y'all brings word of a case out of the 11th Court of Appeals where the appellate court overturned a guilty verdict and an 80 year sentence over 3.7 grams of cocaine, ordering acquittal because an informant's testimony in a drug case wasn't corroborated. (See the opinion.)

The snitch in the case had "agreed to buy drugs in exchange for an agreement that, if he made three cases, he would not be prosecuted for his offense," said the court. But in the instant case, even though there was a recording of the supposed drug deal, only the confidential informant could independently identify who was speaking or what they were talking about. The court ruled the evidence presented did not independently corroborate the informant's testimony.

I mentioned in the comments at LJ4Y that I was deeply involved in the inception of then state-Rep and now-state Sen. Juan "Chuy" Hinojosa's "Tulia" legislation back in 2001 (along with many, many others, notably including frequent Grits commenter Rev. Charles Kiker), so it's good to see it actually still has some teeth so many years after implementation. You don't see appellate courts reverse jury verdicts to acquit defendants too frequently in Texas criminal cases.

MORE:  Just for kicks, or perhaps more out of nostalgia, I pulled this somewhat notorious flyer out of my files which was distributed at the Texas Lege back in 2001 among religious conservatives, in support of the Tulia legislation. (There was also a more mainstream flyer that most legislators received.) Though it seems quirky on its face, the religous angle turned out to be a far more effective approach than we could have anticipated. The headline announced, "The Bible and the ACLU Agree: Require Corroboration for Drug Sting Testimony!," and it went on to quote Moses, Jesus, and Rev. Charles Kiker in support of the legislation. (The Apostle Paul, FWIW, also backed requiring corroboration for any witness to support a criminal allegation - pretty good company for Rev. Kiker.) State Rep. John Shields from San Antonio read the Bible quotes aloud from the flyer on the House floor, and his support sealed a lot of other Republican members' votes who held similar views. WWJD, baby!

Education vs. Prisons

A construction I've seen quite frequently recently during budget debates at all levels of government has been how to relatively prioritize jails and prisons vs. schools. KLTV out of Tyler has a story titled "New jails vs. new schools an ongoing battle" (7/22), in which members of the commissioners court declared one reason they don't want to take jail bonds to voters is the likelihood that Tyler ISD will put additional bonds on the November ballot and voters would choose schools over a jail.

The, seemingly age-old Smith County battle could wage on again come election time: new schools versus new jail.

Battle lines are already being drawn... ...and early... ...from the bench...

"If TISD puts on a bond election at the same time, then I see the jail failing," said Precinct 4 Commissioner JoAnn Hampton.

"Those cute little rosy-cheeked kids, or a bunch of people in our jail house? I know who they're going to vote for and so do you," said Precinct 2 Commissioner Bill McGinnis.

"They're going to win every time," said voter, Charles Smart. "They have so far."

Smart says if the last $60,000,000 jail plan was not up against Tyler ISD's nearly $125,000,000 plan, it may have passed.

The idea of another ballot face-off is weighing heavy.

Meanwhile, Newsweek had a recent story focused on California and other states struggling to balance prison spending and higher education ("Classrooms or prison cells," June 28). According to Newsweek the issue is being raised by (among others) a prominent transplanted Texan:

It may seem odd that state funding for college kids often competes with money for prisoners, but if you track spending in California over the past 30 years, you’ll see evidence of a long-standing tug of war between these two very different constituencies. Over much of the past decade, funding for corrections has gone steadily up, while spending on state colleges has tumbled. “The state seems to be saying we have more of a future in prisons than in universities,” University of California president Mark Yudof said in a recent speech.

Newsweek included this extraordinary graphic outlining the near-explicit tradeoff in California:

It would be quite a chore to compile the data, but given the expansion of Texas prisons in the past 30 years, plus the fact that Texas universities have become so much more tuition-reliant, I would be surprised if a comparable chart for Texas failed to display essentially similar trends.

Education, particularly higher ed, is an economic investment in human capital, while prisons remove workers and money from the economy and reduce overall consumption and production. So the question arises, when money is tight, where should the state prioritize its spending? Mass incarceration is a rich nation's game. When money is scarce and the tradeoff becomes explicit, investing in education over prisons makes a lot more sense.

Special treatment for Keller may create "bad law" around judicial misconduct

Reacting to the State Commission on Judicial Conduct's "public warning" regarding Judge Sharon Keller, I said on Wednesday that " I don't understand how the "warning" option jibes with earlier reports that the only options available were removal, censure, or exoneration." Now, Mary Alice Robbins at Texas Lawyer has an extended piece exploring that question ("Judicial Conduct Commission Examiner Questions Basis for Public Warning in Keller Case," June 22). She reports that:

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

The Commission's rules haven't been updated to reflect conflicting constitutional changes, Robbins reports, and the Commission has publicized in its own materials that there are just three options if a case goes to a public trial - dismissal, censure, or removal. Thus it's possible that if the commission changed up the verdict, the argument goes, one might not have given:

fair notice to a judge of what sanctions he or she could face. Houston solo Lillian Hardwick, a judicial conduct expert, says the commission’s annual reports before and after the adoption of Rule 10(m) — including the 2009 report posted on the commission’s website — feature charts showing that the options after the commission opens formal proceedings are to dismiss the charges, issue an order of public censure, or recommend the removal or retirement of the judge.

“I don’t see how it’s giving notice to judges of anything other than that, including a public warning,” Hardwick says.

Willing also thinks the ruling will impact the commission's future ability to bargain with judges: "Willing believes the commission’s public warning in Keller could result in bad law. She says judges have resigned in lieu of discipline after the commission began formal proceedings against them. But now, judges might not agree to accept resignation if they are facing a lesser sanction."

Further, the confused outcome may be confusing whether Judge Keller has a right to appeal the commission's ruling as she's said she will do:

When the commission issues a public warning to a judge in informal proceedings, that judge has the right to ask the state Supreme Court to appoint three appellate justices to a special court of review to hear the appeal. Willing says in an interview that in such appeals, the three-justice panel reviews the evidence de novo, amounting to a new trial.

But because the commission initiated formal proceedings against Keller, Keller already has had a trial — before the special master. Willing says a new trial would be a waste of resources. She is concerned about Keller getting what amounts to a second trial on the taxpayer’s dime.

“This is taxpayers’ resources being expended for a second trial,” Willing says. “I have a problem with that.”

Willing says that even though the commission does not pay Graves Dougherty legal fees for [attorney Mike] McKetta’s work as special counsel, it had to pay for the firm’s expenses in Keller, which totaled about $20,000 so far. “Are we going to have to do that again?” Willing asks.

What a fascinating development. I claim no insight on the merits of the dispute over what punishments should be allowed, but pretty clearly the commission went out of its way to handle Judge Keller with kid gloves. Now the question becomes, was that special treatment just a one-off or will it set more lenient precedents ("bad law," in Willing's terminology) for future judges accused by the Commission of misconduct?

Orwellian-named immigration policy massively subsidizes private prisons in Texas

Bob Libal at Texas Prison Bidness has authored a "green paper" (pdf) on behalf of the group Grassroots Leadership critiquing the Orwellian-named "Operation Streamline," which is the Bush-initiated practice of layering criminal charges for illegal entry on top of civil detention prior to deportation. Libal says:

The result has been a mess.  In Texas alone, 135,000 immigrants now have criminal records and many have done real prison time under the Streamline before being deported (far from streamlining the process, the policy adds another layer of incarceration on top of the existing civil detention system). 

While most researchers believe that the program hasn't deterred unauthorized immigration, the program has affected the judicial system in serious ways.  The federal court system is horrendously over-booked.  54% of 2009's federal prosecutions across the country were for immigration violations.  In the Southern District of Texas, a district that includes Houston, a full 84% of April prosecutions were for two immigration violations - unauthorized entry (1325) and unauthorized re-entry (1326).  With a mandated focus on prosecution of immigration violations, diligence to other prosecutions has fallen off dramatically. 

Grits has described previously the dropoff in white-collar and drug prosecutions resulting from Operation Streamline, but Libal adds to that critique the observation that the policy amounts to a massive subsidy of the private prison industry. Says the report:

Operation Streamline has funneled more than $1.2 billion into the largely for-profit detention system in Texas, driving the expansion of private prisons along the border. Operation Streamline has significantly increased the caseload of public defenders and federal judges while radically increasing the number of individuals incarcerated for petty immigration violations in for-profit private prisons and county jails throughout Texas.

The paper also documents the growth in US Marshalls and federal Bureau of Prison's leased detention beds in Texas, which together expanded by 17,249 between 2000 and 2009, according to an appendix.

Two takeaways from this paper: 1) Larding criminal prosecution onto deportation proceedings makes us less safe by reducing federal prosecutors' focus on more serious crimes, especially in Texas' Southern and Western Districts. And 2) If the feds were to rescind that policy, which seems not just wise but necessary, the bottom will drop out of the private prison market in Texas. When that happens, all the counties who overbuilt their jails imagining they'd fill them with immigrants are going to find themselves SOL.

Driver responsibility program up for debate in House, not Senate

I neglected to mention that new Texas Senate Transportation and Homeland Security Chairman Tommy Williams canceled the August 3 hearing that would have included discussion of the Driver Responsibility Program, though I understand the DRP had nothing to do with the cancellation. Disappointing, but it saves me a drive to Plano

Meanwhile, on August 10 the "House Public Safety Committee will hold an interim hearing on August 10, 2010 to discuss charge #3 relating to the drivers responsibility program," I'm informed via email."The hearing will take place in E2.014 at 10:00 a.m. and the public is invited to come testify," says the notice. "We do ask that testimony be kept to under five (5) minutes. If you have any questions please do not hesitate to contact the committee at 512-463-0133."

Harris DA Pat Lykos describes detox center idea

In response to a query from Grits, Harris County DA Pat Lykos emailed me today with a little more detail on the idea she proposed at the House Corrections Committee hearing last month to create detox centers where police could take intoxicated people instead of jail. She writes:

Detoxification Centers:  
When a person is intoxicated in public, that individual is vulnerable and endangered and can be a danger to others; it is also a quality of life issue in our neighborhoods.  The offense is under 49.02 PC.  Currently, such individuals are subject to arrest and jail.  This consumes enormous resources in arresting, transporting, booking, jailing and releasing them.  Officer time out of service leaves our communities unprotected.  Leaving such person on the streets where they can come to harm often engenders ambulance calls and emergency room treatment.
 
I propose a center, where an officer can transport such individuals, where EMTs monitor them until they are sober and free of symptoms.   Personnel can work with those with  more serious problems and assist in moving them into recovery and treatment programs or facilities.  
 
This is a cost-effective, humane remedy that will increase public safety and health, and perhaps transform lives in a positive way.
 
Please be advised that the persons described above are not operating a motor vehicle.  DWIs are specifically excluded. 

It'd be interesting to get a count of how many such offenders are presently arrested and taken to jail each day, but I'll bet on Saturday night in Houston it's a not insignificant number. (In my mind's eye, I think they should call it the Otis Campbell Detox Center - giving Mayberry's town drunk a safe place to dry out seems to be sort of the model.) It's a good idea, keeping petty cases out of the courts and giving officers an option to take folks someplace besides jail that won't result in their prosecution.

I wonder: What besides funding are the barriers to such an idea? Clearly the commissioners court would be required to pay for such a center and related health services, though that'd likely be cheaper than adding a new jail wing. Are there any legal barriers to police taking someone into custody if they're not arrested pending adjudication? I don't know the answer to that, though at the hearing Chairman Jim McReynolds told Lykos the Corrections Committee would work her on the suggestion.

I'd link to other press coverage on this, but besides earlier Grits posts here and here, there hasn't been any. The idea deserves wider discussion.

Parking case study: Promoting obedience to law through less enforcement, greater facility

A story by Marty Toohey in the Austin Statesman ("Parking pay stations bring in more cash for Austin," July 22) shows how the goals of law enforcement may sometimes be better met by facilitating legal behavior than simply punishing the illegal. The article opens:

A year after Austin started replacing its worn-out parking meters with new pay stations, the city says it is issuing significantly fewer tickets while collecting more money.

The pay stations — solar-powered yellow-and-gray machines that spit out receipts for drivers to stick to their windshields — were responsible for a 26 percent increase in parking-meter revenue, according to the city, which is planning to replace the rest of its old meters during the next year.

The new pay stations break down less often than the old meters did. They also take credit card payments, so people do not have to have change handy or buy prepaid meter cards.

End result: The city is issuing about 36 percent fewer tickets since it started installing the pay stations.

"What we've seen is that people have been willing to pay if we make it easier for them, as opposed to taking their chances with a ticket," said Rob Spillar , the city's transportation director.

It fascinates me that people were more willing to comply with the law than you'd have guessed by the number of parking tickets given out in years past. It's an example of how, in an era of over-enforcement - where politicians aim to solve seemingly every social problem through criminal laws or new rules forbidding unwanted behavior - there's frequently a lot more utilitarian bang for the buck from facilitating and incentivizing obedience to the law than from larding on more and more penalties.

The same observation can be made of high surcharges in Texas' Driver Responsibility Program, which has boosted the number of unlicensed, uninsured Texans in the state by more than a million people thanks to large civil surcharges in addition to criminal penalties, though its proponents said the opposite would happen. Sure, there are scofflaws who just won't pay, but the program's greatest failure is that it makes it too difficult for those who want to do the right thing to comply with the law. (Hopefully the proposed Amnesty and Indigency rules will in part assuage that problem.)

The lesson applies most especially to economic "crimes" committed by average people. In the case of parking tickets, "offenders" turned out to be willing to pay more if the city made it easier for them. (I can say from personal experience I'm more likely to add enough time on the meter using a credit card than I am using whatever random amount of change happens to be in my pocket.)

Another good example is criminalizing failure to carry auto liability insurance. I've suggested a "pay at the pump" scheme mostly because I think you'll never get every driver to individually purchase insurance, no matter how much you punish them. It's just not practical to force that many individuals against their will to enter into private commercial transactions, which is why after years of increasingly harsh enforcement tactics, the statewide uninsured motorist rate still hovers around 22%. Pay at the pump would make it not just easy for drivers to comply but impossible not to, using "coercion" that's more subtle than a cop with a gun and a badge.

Enforcement has its place, it's just often not the only or always the most effective solution. I chatted briefly the other day with Chief Art Acevedo of the Austin PD about graffiti and he readily agreed with me that rapid cleanup is far more effective as a deterrent than the threat of arrest, which in practice for most graff writers is relatively small. However, I also think it's worth exploring other non-enforcement approaches to diverting graff writers into productive and even economically beneficial pursuits.

The theme here: When criminal law is inadequate to solve a problem, or when it's being asked to solve social problems that should be beyond its purview, solutions should be more frequently sought outside the comfortable paradigm of criminalizing and punishing unwanted behavior. And such solutions will work better if they focus on aligning themselves with how people actually behave (e.g., allowing credit-card use for parking) than maximally punishing them for failing to comply with unreasonable demands by the state (requiring coinage in an age when they're becoming anachronisms).

Commissioners sending a message on Smith County Jail

Judging from statements in this KLTV-Tyler story, you can already count 3 of 5 votes on the Smith County Commissioners Court who are sold on bypassing voters to expand the county jail. "Commissioners say after four defeats, the jail's need for growth is so important, they are considering certificates of obligation," reported the TV station.

We already knew Smith County Judge Joel Baker is for building a jail by hook or by crook, and it was Commissioner Jeff Warr who proposed using "certificates of obligation" instead of voter approved debt. KLTV quotes a third commissioner agreeing up front that voters need only be informed, but their permission need not be requested: "'Really and truly, if it came down to issuing CO's, I would vote with Co's in a minute, but I would still make sure the public knew what was going on,' said Precinct 4 Commissioner JoAnn Hampton."

Earlier this week, Smith County released its "Comprehensive Plan to Alleviate Jail Overcrowding" (pdf) which amounts to nothing but a $33 million jail expansion. That's not a "comprehensive" plan at all: It focuses only on capacity and not reducing inmate numbers. This smaller jail expansion is surely more appropriate than the massive "Taj Majal" versions proposed in the past. But it's pointless if not coupled with measures to reduce the county's astronomical incarceration rate, which is by far the highest among Texas counties with more than 150,000 population. And it flies in the face of repeated refusals by voters to issue new debt for the jail.

I hear politicians yammering all the time that their legislation "sends a message." So what message does it send if, when voters continually deny them permission to build a jail, commissioners just quit asking and do it anyway?