Thursday morning roundup

As I spend time today on working on projects for which people are actually paying me (and thank heavens for them!), here are a few items that might otherwise deserve more detailed adumbration:

Drugging youth convicts
The site Youth Today has a good feature on the use of psychotropic meds behind bars among juveniles, focusing much of the article on Texas Youth Commission chief Cherie Townsend's efforts to reduce the agency's off-label use of anti-psychotic drugs. When Townsend took charge at TYC, 70% of youth taking atypical anti-psychotics had never been diagnosed with schizophrenia or bipolar disorder, which are the ailments the drugs were created to treat.

Time for a DA's mea culpa
The Corpus Christi Caller Times editorial board says Adan Muñoz, the head of the Texas Commission on Jail Standards, deserves an apology after the Sheriff and Nueces District Attorney tried to pursue him on criminal charges for publicly revealing problems at the county jail.

A plan to redress false convictions
AP reports that the Innocence Project of Texas this week "unveiled a four-point plan designed to ferret out possible wrongful convictions caused by the use of such science: They are offering to assist law enforcement agencies in reviewing cases, file litigation involving such cases, bring appropriate cases to the science commission and offer a reform plan to the Texas Legislature."

We'll get around to it
Understaffing at the Houston PD crime lab is causing trial delays, as well as the processing of a backlog of 2,000 untested rape kits going back to 1994.

The rational choice
DWI offenders in Bell County are choosing jail over probation. "'If I were a defense attorney, I would urge them to do it,' said County Attorney Rick Miller. 'We're not talking about rich people getting picked up for DWIs.'" See related, recent coverage.

Dialogue on de-incarceration
The Texas Tribune published an interview today with Ana Yañez Correa, who is executive director of the Texas Criminal Justice Coalition.

'Texting bans: Scourge of the Roadways!'
Via Radley Balko, "Laws banning texting while driving actually may prompt a slight increase in road crashes, research out today shows." A possible reason: "drivers try to evade police by lowering their phones when texting, increasing the risk by taking their eyes even further from the road and for a longer time."

How to prevent more murdered Mexican journalists?
The more accounts I read of Mexican journalists being murdered, the more I think the US intelligence apparatus should embrace the idea of open-sourced intelligence so reporters aren't massacred for revealing information both the government and the cartels already know.

This will go in your permanent file: Appropriations considers juvie corrections

This morning I attended a joint meeting of the TX House Appropriations Criminal Justice Subcommittee and the House Corrections Committee, on the assumption that with a tight budget season in front of us, it'd be good to get a lay of the land on juvenile justice budgdets and in particular diversion and probation programming which were the main topic of discussion.  Here are a few highlights from my admittedly sketchy notes and a few accumulated documents:

Better decisions by counties
Diversion programs were widely credited - along with a handful of key policy changes like removing 19-20 year-olds and disallowing commitment of misdemeanants - with dramatically reducing the inmate population at Texas youth prisons by more than 2/3 from their maximum just a few scant years ago. This is happening not because the state wholesale released kids, but because counties found other ways to deal with them on the front end, in large part thanks to new grants approved by the Lege beginning in 2007, according to testimony.

By the time they were fully rolled out, statewide commitments to TYC declined 35% from 2008 to 2010, from 1,693 to 1,107, according to materials distributed to the committee by Juvenile Probation Commission chief Vicki Spriggs. The number of youth in secure Youth Commission lockdown facilities has declined to 1,521, said TYC head Cherie Townsend, down from a max of more than 5,500 just a few years ago, all during a period when juvenile crime has significantly declined, following national trends.

There are 18,000 out of 52,000 youth presently on probation in Texas, said Spriggs, who in theory would have been eligible for commitment to TYC (because they committed a felony), but local judges and probation departments are making different decisions now than a few years ago, in large part she said because diversion funds have given courts more options and different incentives than they faced in the past.

The conundrum of reform via 'Riders'
Spriggs raised a legitimate concern that, because of the the Legislature's hodge-podge, "rider"-driven funding process (riders are basically amendments to the budget directing how money should be spent), where new layers of bureaucratic complexity are inevitably tacked onto every new funding stream located, TJPC today distrbutes funding through 18 different grant streams, which multiplies the amount of reporting by agencies pointlessly. Everyone would be better served, she argued, if the money could be distributed through a single funding stream.

However, state Rep. Jerry Madden pointed out that in some cases different federal funding sources required separate accounting. He could have also added that the Lege has used incentive-based grants in recent years in both the adult and juvenile systems to influence local policy on issues - like actually using diversion programs the Lege created - in ways that spurred the beginning of a positive cultural change in Texas juvenile probation departments. That structure shouldn't be dismantled without ensuring similar incentives remain in place in some meaningful form.

Big reduction in Bexar commitments
Bexar County juvenile probation chief David Riley said his department had used $1.5 million in diversion grant funds to reduce by 42% the number of youth they sent to TYC. Juveniles treated under that funding stream cost the state $2,600 per year, he said (compared to $99K for the Texas Youth Commission). Two juvenile probation directors from smaller counties - Guadalupe and Brown - said they outsourced most of the services for kids they would have sent to TYC. James Williams of Brown County said they sent kids who needed drug treatment to Dallas.

How can I miss you if you won't go away?
I'd forgotten until Chairman McReynolds mentioned it that both TYC and TJPC are up for Sunset review again next session, as if there's not enough going on with the budget crunch.

Big Brother for little convicts
Lisa Capers of TJPC explained the new "Juvenile Case Management System," which is almost a Total Information Awareness system for juvenile offenders age 10-17, connecting "legacy" databases from dozens of local juvenile probation departments and potentially many other sources. Rep. Lois Kolkhorst, while acknowledging the potential benefits, rightly warned of potential privacy dangers, asking "Who owns the record?" The county that inputted it, came the unsatisfactory answer. Clearly nobody was saying the youth or their families would have access to records about themselves, nor was there discussed any process of review when the JCMS contains errors, either at the hearing or in the material from TJPC on the database given to legislators.

Currently counties report data monthly, but under the JCMS system data (including any errors) will be uploaded in real time. The state funded this in conjunction with Dallas, Bexar and Tarrant Counties, Don Lee of the Conference of Urban Counties told the subcommittee, so they could offer a "basic" account for free to all counties with a deluxe, data-laden subscription account for those who wanted to pay for it. (Be the first cool kid in your school to get the new gadget, Mr. Probation Director!) Kolkhorst asked what rules would apply to taking data out of the system, expungements, etc., and was told TJPC would comply with current law. The Brenham lawmaker seemed dissatisfied with that answer, and so was I.

Public testimony: Cut smart, spend smart
Public testimony before the committee included moving pleas from mothers of kids with mental illness inside TYC who came to ask legislators to keep their kids safe and provide educational opportunities commensurate with the students' varied abilities. (News-8 Austin spoke with one of the mothers in their coverage of the hearing.) Marc Levin from the Texas Public Policy Foundation provided written testimony (for which I'm hoping he'll soon send a promised link!) detailing strategies from other states the Lege could emulate.

I couldn't resist breaking the fourth wall and putting in a witness form to give public testimony, in part to emphasize Rep. Kolkhorst's point about making sure firm privacy restrictions remain in place on the new statewide juvie information system. When I was in school, I recalled, we used to joke about teachers who would threaten ominously that this or that transgression would become part of our "Permanent File." But now it's no joke, TJPC is actually creating that "Permanent File." I haven't thought through all the implications of TJPC's database, I said, and I agree I can see many upsides to sharing information across jurisdictional boundaries. But there is also a dark side to the idea, and legislators seemingly funded the plan without fully thinking through the implications. Information wants to be free, I reminded them, and once the data exist, many people you never thought of will want it for (all seemingly legitimate) reasons no one has even considered yet.

Mainly, though, I lamented that mental health services and other supports for troubled youth were delivered almost exclusively through the criminal justice system. Providing them more liberally on the front end, I argued - particularly regarding early childhood education and mental health services - would likely prevent crime and help kids before they became antisocial or disruptive. To get the most crime-fighting bang for the buck, prisons aren't nearly as good an investment as targeting services for kids with incarcerated parents, hopefully equipping them and their caregivers with extra tools to help them succeed despite the harsh setbacks life has dealt them, at least making the effort to break generational cycles of crime.

Shifting gears, I turned to a theme raised repeatedly on Grits: That the state's recent experience with TYC - slashing the number of inmates while preserving public safety by beefing up community based programming - provided exactly the model budgetmakers should be looking at to cut Texas' adult corrections budget. Close 6-8 prisons, even more if the right policy changes are adopted, and spend a portion of the savings to expand community corrections' budgets to handle the extra load. Legislators have already seen it work on the juvenile front, and to the extent they've tentatively stepped down that road on the adult side, they've seen nothing but widespread success. In the face of a yawning budget gap, it's time to think about the unthinkable.

Here's a link to the full hearing, for those interested, and initial coverage from the Texas Tribune, the Dallas News and News-8 Austin.

Be careful what you ask for

It's a good thing Harris County Sheriff Adrian Garcia failed to get his wish for constructing more jail space since the commissioners court won't approve full staffing for the facilities he runs now. Over the Sheriff's objections, they're also forcing the process of choosing jails to outsource inmates to go through a competitive bidding process.

You can tell it's election season ...

You can tell it's election season when politicians begin launching demagogic proposals to get "tough" on sex offenders, as Gov. Rick Perry was doing in Houston this week in this speech. Commenters at the Texas Tribune following the story pretty universally viewed this as a transparent campaign ploy and counterproductive to actually managing sex offenders, but who know how such tactics resonate with the average voter?

It's not as though sex offender laws don't need revamping. Some lawmakers, with support from law enforcement, would like to pare back the sex offender registration list to focus supervision on serious, violent offenders so that there's some actual benefit from the expensive, time-consuming program which problematically soaks up local police and probation resources. Jordan Smith at the Austin Chronicle recently wrote an excellent story detailing the various ways the registration system has ballooned with less serious offenders until it's taxing law enforcement's ability to effectively oversee anyone. Perry's press hit, however, portrays everyone on the registration list as "predatory, high-risk sex offenders" and simply suggests spending more money for arrest and enforcement.

It's ironic that his complaint comes just as Stephen Brodie, the deaf man who was this week exonerated for a 1990 rape he didn't commit, was released from prison for violating the conditions of his sex-offender registration (because he never committed the underlying crime and so shouldn't have been registered).

Many more on the list committed much less serious offenses - often Romeo and Juliet style romances (I've met sex offenders who are married to their "victim") - which is a problem because a) many don't deserve the extra punishment and b) they divert scarce resources from more intensively supervising the most serious, violent offenders. In that sense, the public furor surrounding the registry, mostly promoted by self-interested politicians and lazy journalists, promotes false threats and ill-conceived hype that damage the community more than it protects it.

In political campaigns, the public expects politicians to debate the issues that concern them (even if Gov. Perry has decided it's not in his interest to debate at all), so it's regrettable that election season has become the one time when such important subjects are least likely to be discussed thoughtfully or productively.

Willingham, Cacy arson inquiries up ante on junk science debate

Travis County District Judge Charlie Baird, who presided over Timothy Cole's posthumous exoneration, has agreed to take up the Cameron Todd Willingham case upon request of Barry Scheck and the national Innocence Project out of New York. See coverage from the Fort Worth Star Telegram, the Houston Chronicle, and the Austin Statesman for the broad outlines of the story. Dave Montgomery from the Startlegram solicited this unbiased view from Williamson County DA John Bradley:

"Judge Baird has been handpicked as a liberal judge who is willing to accept a case over which he has no jurisdiction to provide a well-timed political statement for anti-death penalty advocates," Bradley said in an e-mail. "This move by a liberal New York lawyer is consistent with his disregard for the rule of law and the disrespect he has shown for the rulings of numerous state and federal courts that have already reviewed the case and upheld the guilt of Willingham."

Gee Marty, tell us how your really feel!

This will be the second "court of inquiry" in Baird's court aimed at clearing someone's name posthumously. Despite Bradley's protestations about jurisdiciton, the statute governing the process allows the motion to be filed in any Texas District Court. Scheck was also one of the attorneys on the Timothy Cole case, along with Innocence Project of Texas legal director Jeff Blackburn. At Timothy Cole's court of inquiry, the prosecution chose not to participate, which turned the event into more or less a one-sided shadow boxing match. But since Willingham was executed and there are death penalty (and potentially even electoral) politics involved, there may be a lot more pressure on the Navarro County DA to oppose Scheck and Co., for which reason I'd be surprised if there isn't a lot more drama in the courtroom this time around. Definitely one to watch.

Relatedly, in my Inbox this morning I received notice from the communications director for the Innocence Project of Texas declaring:

Recently, the Cameron Todd Willingham case has raised serious questions about the Texas criminal justice system.  To many, the issue is whether Texas executed an innocent man.  To the Innocence Project of Texas, the questions raised by this case are much bigger.  To us, the real issue brought up by the Willingham case is the ongoing use of junk science to falsely convict the innocent.
 
One of the most telling instances of an innocent Texan being convicted on the basis of junk science is the case of Sonia Cacy.  Sonia was wrongfully convicted of murder in Fort Stockton, Texas.  The state alleged that she doused her uncle in gasoline and set him on fire.  In order to prove their case, they used evidence provided by the Bexar County Forensic Lab indicating that gasoline was detected on the deceased’s clothing.  Since that time, however, a number of experts have examined the results of the Bexar County lab’s testing and have all unanimously concluded that there is no indication of gasoline on the evaluated evidence.  Based on this development and other evidence of innocence in Sonia’s case, it is clear that Sonia Cacy was convicted of a “crime” that never occurred.  Despite that, she continues to live on parole but hopes to one day prove her innocence and officially clear her name.

These aren't the only murder convictions based on faulty arson forensics in Texas, but they're iconic ones. I still think it's a shame the debate over arson science has become so wrapped up in death penalty demagoguery on all sides, but cases like Sonia Cacy may help steer the conversation back toward faulty arson science and away from arguing how many angels can dance on the head of a pin. In the bigger picture, though, there still needs to be a mechanism created by somebody - the best candidate is the AG, perhaps directed by legislation, or not - to go back through and vet older cases whenever disproven forensic methods may have convicted innocent people, as with older arson cases and dog scent lineups. If not, it will still happen piecemeal, as with these cases, but that leaves a lot of innocent folks waiting around, sometimes in prison, for someone to right an injustice.

MORE: On the Cacy case from the Texas Tribune. AND MORE: A commenter points out this story in the Corsicana Sun which informs us that the jailhouse snitch in Willingham's case, who is presently incarcerated in the local jail on forgery and marijuana charges, will likely testify at the court of inquiry.

Irrationality: Creating incentives for defendants to choose incarceration

“To be quite honest, it’s a very rational decision” to choose incarceration over probation for many misdemeanor offenses, the director of the Bell/Lampassas County probation department told the Texas Tribune in a story titled "Many choosing jail time over probation," a subject we've discussed here on Grits for many years. Reports Brandi Grissom:

Across Texas, defendants ... who are charged with misdemeanor offenses are choosing to spend time in the local lockup rather than endure months on probation. They don’t want to deal with the hassle of probation conditions, and they can’t afford the thousands of dollars in fees that probation requires. People on both sides of the criminal justice system agree the trend is troubling: It means more people with criminal records and overcrowded local jails — and worse, it means that people charged with crimes like driving while intoxicated, possession of small amounts of drugs, and family violence are not getting the treatment they would receive on probation. 

The Texas Court of Criminal Appeals ruled last year that judges may insist on probation sentences instead of jail time, Grissom reports, but that can result in absurd outcomes since the only available consequence for intentional non-compliance with probation is jail time. Bottom line: Probation conditions are frequently too onerous and fees for misdemeanor probation in particular simply too high, creating a situation where the "rational" decision for a defendant leads to an outcome that's worse for public safety. In such instances, a better result would be for the system to offer more reasonable choices than to expect - against all logic and reason - that defendants will fail to make choices even those running the system believe are "rational" under the circumstances.

This is another example why it'd be folly for TDCJ to slash funding for community supervision while refusing to close its most expensive, older, outdated prison units: Putting the costs of probation on (often indigent) defendants is only viable up to a certain point, and probation conditions in Texas have long ago become so onerous that they're frequently counterproductive. Probation is so much cheaper than incarceration - and so much more likely to lead to rehabilitation when it includes evidence-based programming - that even if the state must pay for programming, it's better for both public safety and the state's bottom line to make community supervision work than to spend ever-more on prisons and jails.

Latest exoneration highlights problem of false confessions

The latest exoneration out of Dallas involved a deaf man who spent 17 years behind bars on a rape charge thanks to a false confession in which he also confessed to a crime police had made up. According to the Dallas News, Stephen Matthew Brodie:

originally pleaded guilty in 1993 to the abduction and assault of a 5-year-old girl in exchange for a five-year sentence. He had come to investigators' attention when he was arrested and confessed to breaking into a soft drink machine not far from the girl's home.

During Monday's three-hour hearing, Levario heard from prosecution and defense witnesses about problems with the investigation.

Evidence showed that shortly after Brodie's plea, police matched a fingerprint found on a window screen at the girl's house to a suspected serial rapist, Robert Warterfield, who was convicted of a similar crime. Also, Brodie's attorney was not told that a hair found on the girl's blanket did not match Brodie or anyone in the girl's family.

It is unclear whether Dallas County prosecutors knew about the hair and did not tell Brodie's attorney as required by law. Richardson police said they turned over all evidence to prosecutors. Meg Brooks, the original prosecutor in the case who is now a prosecutor in Travis County, could not be reached for comment.

Retired Richardson police Officer Kevin Hughes, who reviewed the case after the fingerprint match was found, said he had "reservations" in the 1990s about Brodie's guilt. Hughes said questions he raised with his superiors about the fingerprint and whether Brodie's confession was real were dismissed. His bosses also refused to allow him to send the window screen to the FBI.

Brodie also confessed to a crime that Dallas police made up when they were questioning him about other cases, a point that would raise doubts about whether his confession to an actual crime was legitimate. Testimony at Monday's hearing showed that an American Sign Language interpreter was not always present during Brodie's 18 hours of interrogation by police over eight days.

There were other problems with the investigation as well, including evidence that police told Brodie the time of day the crime happened, details of how the attacker got into the girl's home and what the attacker did. But even so, Brodie incorrectly described the crime to police. Only two of the 45 details Brodie provided were correct, according to testimony.

For Monday's hearing, Dallas County prosecutors Mike Ware and Terri Moore and Brodie's attorney, Michelle Moore, subpoenaed Warterfield, the man whose print was found on the window. He invoked his constitutional right not to testify.

Jim Hammond, an investigator with the district attorney's office, said that when he met with Warterfield at his Stephenville home, Warterfield said "he had been expecting us." Hammond testified that he told Warterfield that he was trying to figure out the truth of what had happened.

"He said it wouldn't be in his best interest," Hammond said.

Warterfield has not been charged, but authorities say they plan to continue their investigation.

One wonders what was going on during the 18 hours of interrogation when a sign language interpreter wasn't present? This is a situation crying out for a rule that custodial interrogations be recorded, without which we'll never know for sure what happened in that room or how Brodie came to confess to crimes he didn't commit.

Also, I recently learned that under the Uniform Code of Military Justice, any confession must be corroborated, which is similar to Texas' law for jailhouse snitches and informants in undercover drug stings. That shouldn't be too great a burden for prosecutors, since an accurate confession would supply information that in most instances should easily lead to corroboration. Perhaps such a requirement would have prevented this travesty. About a quarter of DNA exonerees plead guilty or at some point falsely confessed to the crime. Certainly a requirement to record interrogations would have given evidence that might have helped exonerate Brodie long before now. This is an area where the Legislature could/should step in next spring to make it more difficult to secure convictions for serious crimes based solely only on confessions absent any other evidence.

See related Grits posts:

• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Tribune: Podcast on possible criminal justice budget cuts

From Ben Philpott, here.

As graffiti mainstreams, will government create processes to sanction permission?

I've been advocating for quite a while on Grits that government begin to identify blank, under-utilized portions of the city landscape - underpasses, concrete drainage areas, even the backside of street signs - and allow street art there on a permission-based basis. Private property owners who wanted to commission free murals on outward-facing walls as a prophylactic against graffiti could also participate. Ideally, in this writer's opinion, the practice should be widespread, with available 'canvases' across every city and content only limited by obscenity laws and disallowing hate speech and known criminal street gang references.

We're beginning to see such a model develop in other countries, as in Brisbane, Australia where local officials are creating a database of commissioned street art so it won't be buffed along with illegal tags. By the time that city develops criteria and processes for getting street art on the list, they'll be halfway to implementing a version of the idea I'm suggesting, Necessity as always being the Mother of Invention.

A prototypical Texan example of this idea may now be found under I-30 in the Deep Ellum District in Dallas, perhaps suggesting a tentative model and certainly some great publicity for the idea of invited graff in public spaces. Called the Deep Ellum Pillar Park, according to the Pegasus News Wire,

The objective of this project is to add artwork to 30 of the TxDOT highway columns under I-75 along Good Latimer Expressway, Canton Street, and Commerce Street. The mural images on the columns will be 11 feet high and will represent the unique work of local mural artists. All of the proposed mural images are free from representations of hate, sex, and violence. The artwork will incorporate images that display the musical, industrial, historical, artistic, and futuristic elements of Deep Ellum, as well as a special mural by the Dallas Police Department painted by a Dallas Police Officer. ...

The artists are: Frank Campagna, Tyson Summers, Dan Colcer (ed note: whose art is depicted upper left), Judith Lea Perkins, Clint Scism, Issac Davies, Jerod Davies, Richard Ross, Jose Sparks Ramirez, Amber Campagna, and Dallas Police Officer Cat Lafitte.

A charity, the Deep Ellum Foundation, sponsored the project, and since TXDOT approved it they must have worked out some mechanism for granting such permission: This is welcome news, and I hope they do it much more often. The Dallas News picked up the story because of the last contributor listed above, Police Officer Cat Lafitte, who received this glowing profile in the paper. Laffiite said she requested and was given permission to join the artists selected to put murals on pylons, wrote Nancy Visser at the News, because though she is only 31:

she longs for the 1950s, when the nostalgic public image of law enforcement was the friendly neighborhood patrol officer. It's different now, she said. People spit or glare when she and her partner pass in a patrol car.

So when Lafitte spotted artists painting pillars under the freeway at Deep Ellum, she asked for her own pillar to paint the portrait of a police officer with the message "Dallas Police Department Welcomes You to Deep Ellum."

"I know the law-abiding people don't hate us, but just dealing with the criminal element, we get a lot of hate," she said. "If I could plant one little seed in someone's head that the police are the good guys, I would consider myself to be successful in this deal."

Lafitte, who was an art/science major in college, intends her artwork to be a positive gesture but plans to cover it with an anti-graffiti clear coat to make it easier to wash off any vandalism. She hopes that won't be necessary.

Motorists passing through the intersection at Good-Latimer Expressway and Canton Street, where she was working last week, honked and gave her the thumbs-up.

The Fraternal Order of Police paid for most of the materials for the mural, which includes the advice, "Hug your Mama cuz I guarantee you were a turd when you were 2." According to the News, "Lafitte's request to paint was approved by her supervisors pending review of the final image. The painting is complete except for the words 'Dallas Police Department' and any detail that identifies the person as a Dallas officer." (Photos of Cat Lafitte's art from Jim Mahoney of the Dallas News.)

In a weird way, graff writers' interests are slowly but surely improved whenever the art form is embraced by official (or corporate) messengers or politically-correct messages, and not only because positive press and possibly even official police approval for the project could encourage TXDOT administrators and others to follow suit. It's part of a slow but steady trend of street art pushing its way into the mainstream in ways that even the most powerful politicians must acknowledge, even as they bad-mouth tagging in general.

A good example was jingoistic graffiti painted on the side of a California highway: The Governator himself wound up apologizing when it was buffed by state highway crews. Two days later, Grits mentioned at the time, two men "repainted the flag and released their names to the press. Bizarrely, the news report I read said that the flag's repainting proved 'that good, old-fashioned American ingenuity and the can-do spirit are not dead.' Of course, isn't the same true of every tagger who revisits a crime scene after authorities buff it?" But bottom line, if the state is going to allow art with pro-government and pro-police messages, the First Amendment will arguably, ultimately require them to allow images with an array of messages. Once the allure of the medium becomes mainstreamed, changes in the laws governing it cannot be far behind.

These days, internationally known artists who began their careers (and made their names) illegally writing on walls are now celebrated in prominent museums and galleries. Cities are hiring artists to decorate areas with street art that elsewhere was put up illegally. What's more, America's over-reliance on the automobile and the need for urban utility infrastructure and drainage control has left us with thousands of gray concrete walls across the nation just begging some one to paint them. And all the while we're wasting officers' time tracking down a handful of the most prolific taggers, at least some of whom might be diverted to permitted venues if they include good, high-visibility locations and the incentive that their work won't be soon buffed out of existence (Rapid cleanup is a much more effective deterrent than arrests, which in practice occur so infrequently they don't provide meaningful incentive, no matter how harsh the punishment.)

On my recent trip in Europe, some of the street art we saw was of exceptionally high quality, particularly in Barcelona and Berlin, while we also saw plenty of more workaday tags. Some street art is excellent, more frequently it's mediocre or poor; just like not every singer is Jackie Evancho, every tagger isn't Banksy. Indeed, Officer Lafitte's aphorisms (see below) aren't exactly high-end philosophy. OTOH, what's so great about a gray concrete pillar?

SCOTUS Fourth Amendment interpretations ignore history, reasonableness, to undermine rights

Recently I quipped that I considered celebration of the Fourth Amendment "rather like wearing a Kurt Cobain t-shirt, commemorating something that's dead and anachronistic, however laudable or memorable for those of a certain age who could still recall when it was relevant." Clearly I'm not the only one who thinks the bar on unreasonable searches and seizures been inappropriately and unnecessarily downgraded.

Via CrimProf Blog, I discover that Prof. Arnold Loewy of Texas Tech has published this essay on the Supreme Court's failure to accurately interpret history when applying the Fourth Amendment prohibition on unreasonable arrests, searches and seizures without a warrant - particularly the historical context within which the Founding Fathers first articulated the principle. The abstract to his talk declares:

In this article, Professor Loewy introduces the Fourth Amendment topics debated in the 2010 Texas Tech Criminal Law Symposium. Part I of this article begins with a critical overview of the Supreme Court’s use of history in resolving Fourth Amendment questions. Part II analyzes the values that the Fourth Amendment protects, emphasizing the concept of “reasonableness.” Part III evaluates the use of the exclusionary rule to enforce Fourth Amendment values. Professor Loewy concludes by recognizing his article’s overall unfavorable appraisal of the Supreme Court and inviting the symposium’s other speakers to share their opinions.

Here's a notable excerpt from Loewy's talk:

Frankly, I would rate the Supreme Court’s use of history as spotty and inconsistent. Let’s compare, for example, Watson v. United States and Tennessee v. Garner. In Watson, the Court examined the history of the right to arrest without a warrant for a felony which the police officer has probable cause to believe was committed by the arrestee. The Court concluded correctly that at common law arrests for a previously committed felony without a warrant were permitted. Substantially, but not exclusively, because of this history, the Court upheld the right to make a warrantless arrest for a previously-committed felony.

So far so good, but there is one major question that the Court did not ask, despite the urging of Justice Marshall’s concurrence: That question is whether the concept of felony meant the same today as it did at common law when the “no need for a warrant” rule developed. The answer seems to be pretty clearly “no.” At common law, all felonies were both violent and capital. Consequently when a police officer saw a felon at large, it was likely a violent individual, who, if he escaped, would escape the hangman.

Watson, on the other hand, was a non-violent credit card defrauder, who in modern times, is a felon. Well, does history demand that this type of felon be treated the same way as the violent felons for which the common law did not require a warrant? My answer would be either “no,” or at least “not necessarily.” Surely the common law rule calling for the arrest of violent, capital felons tells us little about whether the same rule applies to non-violent defrauders, such as Watson.

Loewy also finds unreasonable the Supreme Court's ruling in a Texas case, Atwater vs. City of Lago Vista, which held that police can arrest people for offenses where the punishment is only a monetary fine - in this case a seat belt violation. (The Texas Legislature in 2001 passed legislation that would have trumped the SCOTUS ruling for Texas, but Gov. Rick Perry vetoed it.) Writes Loewy:

The operative word in ... the Fourth Amendment ... is “reasonable.” Indeed, in case after case, the Court has emphasized that the overarching principle of the Fourth Amendment is reasonableness. Most of the time when the Court cites “reasonableness” as the overarching principle, it does so to uphold a search; e.g. There is no need for a warrant here because the search comports with the overarching principle of reasonableness. Without regard to the correctness of those decisions, one would have thought that the same principle (if indeed it is a principle) would have applied in Atwater. But it did not. The Court conceded that as applied to Atwater herself, the arrest was clearly unreasonable. As the Court so starkly put it: “Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.”

So, one might have thought that the finding of individual unreasonableness would have ended the case, but it did not. Rather, the Court continued: “But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.”

Yet just five years earlier, in Ohio v. Robinette, the Court had said: “We have long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ Reasonableness in turn is measured in objective terms by examining the totality of the circumstances. In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact specific nature of the inquiry.”

I suppose that a cynic could say that it all depends on whose ox is gored. If the police win with a bright-line rule (as in Atwater) then bright-line rules are good. But if a citizen wins by employing a bright-line rule (as in Robinette) that is bad. I am inclined to favor flexibility (so that Atwater would have won, and frankly so would Robinette, if flexibility had been applied properly). But, however one might resolve that question, we can surely expect more consistency (and more reasonableness) from the Court than we saw in Atwater.

What in the world is Craig Watkins thinking?

I'm disappointed in Dallas District Attorney Craig Watkins over what I consider an outright sleazy, false attack on his GOP opponent Danny Clancy. Gromer Jeffers, Jr., a Dallas News columnist whose writing about this race has frequently read like excerpts from Watkins' campaign material, reported that the Watkins campaign sent out a mailer attacking Clancy in a manner that IMO amounts to outright demagoguery:

The mailer reads: "Danny Clancy. Wrong side of the verdict. Wrong side of the law. Wrong for Dallas County D.A."

The campaign mailer also shows a picture of Reyes above the words: "He raped a young woman and set her on fire. Danny Clancy as [sic] 'proud to represent him.'"

Watkins, a Democrat, is planning to refer to the Reyes case when the candidates meet Thursday for the first of two major debates. The forum is scheduled for noon at the Belo Mansion.

Eric Celeste, a spokesman for Watkins, says the Reyes case will be used to compare and contrast the candidates for the remaining weeks of the campaign.

"Craig Watkins is a district attorney who has been smart on fighting crime," Celeste said. "Clancy has proven he is just a sleazy defense lawyer."

Clancy is a former prosecutor and judge while Watkins' own, personal experience as a prosecutor and a working trial attorney (as opposed to an administrator and bail bondsman) pales in comparison, so such allegations ring false from the get-go. But the tactic of blaming a defense lawyer for the crimes of their clients goes beyond disingenuity to approach the level of bad faith. If Watkins truly believes what's in that mailer, then his understanding of the justice system and the constitutionally mandated right to counsel appear intolerably weak and ill-informed. If, on the other hand, as I suspect (because I respect Watkins too much as a person to believe he actually holds such ill-informed, dangerous and delusional views), this was simply a cynical campaign ploy, then there's no other way to characterize this mailer or Celeste's statements except as the words of a demagogue.

For many years I worked as a professional campaign consultant performing opposition research and rapid-response for a total of 69 campaigns and I've seen similar attacks backfire more often than they succeed. In Watkins case, the attack is likely to weaken support among his base and turn off independents who might have otherwise been impressed with Watkins' post-conviction work to identify and free innocent people who were falsely convicted. Watkins deserves tremendous credit for that work, but not so much that it's possible to overlook this kind of inflammatory propaganda.

Indeed, I have to wonder if part of the reason the DA has resorted to such disreputable tactics may be the paucity of professional campaign staff advising him. How else can one explain the unstatesmanlike demeanor and personal attacks which characterized his recent debate with Clancy? Watkins' key campaign consultants are all family members - who are prone to be yes-men and women - and a reporter with little or no campaign experience hired away from D Magazine, Eric Celeste, whose egregious comments above follow on the heels of embarrassing overstatements in which he exaggerated his boss' record regarding DNA exonerations. Watkins also appears to be getting poor advice in his feud with county commissioners over budget cutting, where he's resorted to personal attacks and bullying to (unsuccessfully) preserve his budget when other county departments were forced to endure much more significant cuts.

Just judging by the topline numbers, an incumbent Democrat running countywide in Dallas should easily coast to reelection in 2010, but I wouldn't be surprised if this increasingly long list of self-inflicted wounds combined with a more motivated GOP electorate make the race a lot closer in November than anyone would have expected just a year or so ago.

I like Craig Watkins personally and respect the nationally acclaimed work by his office on innocence matters, but some of these recent, bone-headed moves at a minimum call into question his judgment, and could swing independent voters and even some Democrats away from his camp as the race approaches the homestretch.

Misconduct Roundup

Several recent stories related to official misconduct and police discipline caught my eye this morning and deserve Grits readers' attention:

• USA Today: Prosecutors misconduct can tip justice scales
• Houston Chronicle: Judge indicted in sex favor case (Sam Kent redux?)
• Houston Chronicle: Conroe cop under investigation for firing weapon at innocent person
• AP: Two South Texas policemen charged with pot smuggling
• Dallas News Crime Blog: Deputy who ogled women in showers was earlier suspended for viewing porn on the job
• Dallas Observer: Female cop files suit against DPD alleging sexual harassment, retaliation
• Dallas News: Dallas Chief fires six more officers, bringing recent total to 13
• Dallas News: 3 dozen deputy constables hired despite troubling job histories
• San Antonio Express-News: Record tampering charges urged for Bexar Sheriff's deputy
• CBS11-TV: Arlington grandmother angry at cop who pulled gun on child
• Texas Prison Bidness: Court hearing for private prison guard accused of groping immigration detainee
• Texas Prison Bidness: Human Rights Watch report details sexual assaults at ICE-contracted detention centers
• KDFM-TV: Beaumont city council to discuss creating police review boad
• Southeast Texas Record: Man sues over Taser use in Lufkin
• KYTX-TV: Beaumont officer found guilty of official oppression
• Austin Statesman: Controversial shooter in Nathaniel Sanders case fired for drunk driving, seeks reinstatement
• Galveston Daily News: Civil service, unions 'nightmare' in cost cutting
• St. Louis Today: Mexico targets corrupt federal officers, fires 3,200
• Kansas City.com: Army confronts epidemic of misbehavior, drug abuse
• Injustice Everywhere: Finally, Check out this jaw-dropping graphic from the National Police Misconduct Statistics and Reporting Project:

Budget shortfall will frame discussion at next week's Appropriations hearing

Just fyi: A hearing next Wednesday (Sept. 29) of the Criminal Justice Subcommittee of House Appropriations will discuss two interim charges that may interest Grits readers:

Interim Charge #1: Monitor the performance of state agencies and institutions, including operating budgets, plans to carry out legislative initiatives, caseload projections, performance measure attainment, implementation of all rider provisions, and any other matter affecting the fiscal condition of the agencies and the state.

Interim Charge #11: Examine implementation of the diversion pilot programs, juvenile case management system, and other policy and funding initiatives to determine whether the Texas Juvenile Probation Commission and the Texas Youth Commission have adhered to legislative directive in implementing these programs, and the impact of these programs on commitments at the Texas Youth Commission.  (Joint Interim Charge with House Committee on Corrections)

With the latest estimates suggesting the state may be $21 billion short next biennium, these discussions may turn out to be more substantive than the usual pre-session gabfests over corrections budgets.

Baseball stadium to be constructed near Central Unit in Sugar Land: Will state close the facility?

The city of Sugar Land will build a minor league baseball stadium at the intersection of state highways 90 and 6 near the Department of Criminal Justice's Central Unit, which the city has asked the state to close. Earlier this year, the facility was in the news because trustees were leaving the facility seemingly at will to go shopping at a nearby Walmart. Maybe now some will go attend baseball games!

State Sen. John Whitmire and others (including your correspondent here on Grits) have identified the Central Unit as one of the most obvious units to target for potential closure in the face of declining inmate numbers and a massive budget shortfall, but TDCJ failed to suggest closing a single facility among its 112 units in its recent Legislative Appropriations Request. Perhaps this decision will help spur the Lege to close the facility, which was built in 1909 and has among the highest per-inmate costs in the state, letting the city put the property to higher, better uses.

Dog scent lineups discredited at TX Court of Criminal Appeals

Outstanding news for those concerned about the use of shoddy forensics in criminal courtrooms: As of today, dog-scent lineups are no longer adequate to secure a criminal conviction in Texas.

In a move that long-time court-watchers may find shocking, the Texas Court of Criminal Appeals today reversed a murder conviction which had resulted in a 75-year sentence and ordered the defendants acquittal based on the unreliability of dog-scent lineups by Deputy Keith Pikett from Fort Bend County, whose bizarre and unreliable practices are well-known to long-time readers of this blog. (See initial coverage from AP and the Austin Statesman) Richard Winfrey, Sr. was was represented on appeal by Dallas attorney Shirley Baccus-Lobel (who in the interest of full disclosure happens to be a boardmember at one of my former employers, the Innocence Project of Texas). The ruling was unanimous, with the exception of Judge Meyers who did not participate in deliberations.

The entire case against Winfrey was based on two pieces of particularly shoddy evidence: A dog-scent lineup and a jailhouse snitch. (See the court's opinion, authored by Judge Barbara Hervey.) However the attorney at trial had not challenged the scent lineups, Baccus-Lobel emphasized when I spoke to her this afternoon, so the CCA could only rule on the legal sufficiency of the evidence, which they found inadequate. Here's how Judge Hervey described the case:

In August 2004, Murray Wayne Burr was found murdered in his home. Evidence at trial indicated that the victim had been stabbed twenty-eight times and had received multiple blunt-force injuries, including a broken right-eye orbit and a broken jaw. There was no evidence of forced entry into the victim's home. The evidence indicated that the victim was dragged from his living room to his bedroom where his body was found. Family members reported that the only item missing from the victim's home was a Bible.

Investigators collected a variety of forensic evidence from the crime scene including: a partial bloody fingerprint, a bloody shoe print, and several hair samples. Neither the prints nor the hair samples matched appellant. Investigators were able to obtain a DNA profile from evidence at the crime scene, however, the profile excluded appellant and his family members. (1) Appellant's children, Megan (then 16 years of age) and Richard Winfrey Jr. (then 17 years of age), became persons of interest in the murder investigation. Texas Rangers interviewed appellant approximately two weeks after the murder. Appellant was not considered a suspect at this time.

Then in 2006 a jailhouse informant came forward to claim Winfrey, Sr. had told him information he had "heard" about the murder, most of which turned out to be false. The informant said Winfrey Sr. told him a gun and knife collection had been stolen (the victim's family said only a Bible was missing) and that Burr's penis had been mutilated (untrue). At this point:

To assist in the investigation, Texas Ranger Grover Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriff's office. Deputy Pikett testified about a "scent lineup" that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds, Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were "pre-scented" on the scent samples obtained from the victim's clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant's scent sample.

Based on this, Deputy Pikett concluded that appellant's scent was on the victim's clothing.

That was enough for the jury, who convicted Winfrey and sentenced him to 75 years. Winfrey's son, Richard Jr., was also accused but was acquitted at trial. However, Winfrey's daughter, Megan, who was 16-years old when the murder occurred and knew the victim, who worked at the school she attended, was certified to stand trial as an adult and convicted of capital murder and conspiracy to commit murder based on essentially similar evidence. She received a life sentence on the capital murder and 45 years on the conspiracy charge. Her direct appeal is presently pending, according to her lawyer Scott Pawgan, who told me he plans to file a supplemental brief in the wake of her father's acquittal. So it's possible this may not be the last reversed conviction stemming from this case before all is said and done.

Deputy Pikett, whose magic dogs provided the main testimony (Woof woof!) against Winfrey, retired earlier this year after the Innocence Project of Texas published a highly critical report (pdf) about his dog-scent lineup practices, revealing among other things that he'd exaggerated his professional credentials in the precedent-setting court case that established his dogs' testimony as admissible forensics. Judge Cathy Cochran wrote a short concurrence emphasizing that the Court could not consider the admissibility of the dogs' testimony because it hadn't been challenged at trial, but this ruling sets the stage for them to do so in the future when the appropriate case finally reaches them. Judge Hervey's ruling already will substantially limit scent-lineups use in the future, as evidenced in this notable excerpt:

We note, however, that the science underlying canine-scent lineups has been questioned; thus, we think it proper to briefly address the issue. Law-enforcement personnel have long utilized canines in crime management. For example, dogs have been employed for detecting narcotics and explosives, for tracking trails, in search-and-rescue operations, for locating cadavers, and for discriminating between scents for identification purposes. In thousands of cases, canines and their handlers have performed with distinction. Despite this success, we acknowledge the invariable truth espoused by Justice Souter that "[t]he infallible dog, however, is a creature of legal fiction."

This case pertains to canines used to discriminate among human scents in order to identify a specific person in a lineup. This process is often referred to as human-scent discrimination. Some courts, including the Fourteenth Court of Appeals, have determined that for purposes of admissibility, "there is little distinction between a scent lineup and a situation where a dog is required to track an individual's scent over an area traversed by multiple persons." Other courts, such as the Supreme Court of Florida, have distinguished scent lineups from dog tracking. ("[I]t is important to recognize that using a dog to track a human or to detect the presence of drugs or explosives is distinctive from using a dog to directly identify a specific human from items in a lineup.").

Cases involving the use of dogs, usually bloodhounds, to track humans are abundant and the law is well settled in regards to admissibility of such evidence with only a minority of courts outright rejecting bloodhound evidence. Fewer courts have addressed the question of whether dog evidence is sufficient to sustain a conviction when it is the only evidence. However, as early as 1913, our colleagues at the Supreme Court of Mississippi held that dog tracking evidence, alone and unsupported, to be insufficient to affirm a conviction. And as recently as 1983, the Supreme Court of Washington agreed. In fact, our research suggests the courts that have passed on this issue have concluded that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction.

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. "Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups." Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L.J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar scents). The FBI agrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Allison M. Curran, et al., Analysis of the Uniqueness and Persistence of Human Scent, 7 Forensic Sci. Comm. 2 (2005). Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that "[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence." To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpatory evidence is obtained from a dog-scent lineup, its role in the court room is merely supportive. (Legal citations omitted.)

IPOT's Chief Staff Attorney Natalie Roetzel wrote this afternoon in an email, "Needless to say, we are very excited about this development today.  We have a good handful of dog-scent lineup cases in the hopper, and we are optimistic that there may be some more exoneration stories in the works."

Congrats to Baccus-Lobel and Mr. Winfrey, and for that matter to the Court of Criminal Appeals for taking what's for them a highly unusual step. Now what's needed is for somebody, somehow, by some means, to vet other old cases involving Deputy Dawg Pikett's so-called forensics. It's a virtual certainty these aren't the only cases where Pikett offered the main or only evidence on which Texas prosecutors obtained convictions.

See prior, related Grits posts:

• Texas needs process to vet cases based on forensic hokum
• Deputy famous for dog-scent lineups to retire
• More detail on scent-lineup case headed to Texas CCA
• Texas Court of Criminal Appeals will hear arguments on dog scent evidence
• More litigation, disapprobation for dog-scent lineups
• 'Scent lineup' evidence may be used in Anthony Graves capital case
• CNN profiles cop wrongly accused by dog scent lineup
• A 'scent lineup'? Rover in the witness box
• DNA exoneration indicts Rover in the witness box
• 'Scent lineups stink to critics'
• 3 false convictions relied on dog-based scent lineups in Florida
• Scent lineups by dogs don't pass the smell test
• Texas Innocence Project vetting dog scent lineup cases
• Evidence mounts against dog handler, scent lineups
• Texas Innocence Project report discredits dog 'scent lineups'
• More innocent people accused by dog 'scent lineups,' but FBI now using technique

Hump-Day Roundup

Here are several items that deserve Grits readers attention:

Michigan may axe Driver Responsibility Program
While I was away, the public comment period ended for the new Driver Responsibility Program rules at the Texas Department of Public Safety. The rules could come to the Public Safety Commission for a vote as soon as next month. Meanwhile, it's notable that the Michigan House of Representatives recently voted to eliminate their driver responsibility program entirely, despite persistent budget shortfalls, because of essentially similar complaints as those lodged against Texas' program, which even DPS chief Steve McCraw admits provides no tangible public safety benefit.

Dallas constable traffic slots on chopping block
Dallas County formally eliminated 80 positions in constable traffic divisions thanks to a massive revenue shortfall.

Anthony Graves story picking up steam
The Anthony Graves case recently covered by Pam Colloff at Texas Monthly has been picked up by other media outlets, including this column by nationally syndicated columnist Leonard Pitts of the Miami Herald, and is also the subject of this video produced by Texas Monthly. See also this interview with Colloff about the story, which is the longest ever published in Texas Monthly.

Peerwani: Review old arson cases for bad science
At the Forensic Science Commission, reports the Fort Worth Star-Telegram, "Most commissioners, including Tarrant County Medical Examiner Nizam Peerwani, say there should be a review of other arson cases in the state to see if bad science played a role in the charges and convictions. The Dallas News declared that "The public should be exasperated with [Williamson County DA John] Bradley," who chairs the commission. The PBS show Frontline will air an hour-long show on the Todd Willingham case, around which much of the drama surrounding the FSC has centered, on October 19.

Grandpa as rookie trooper 
The Department of Public Safety has eliminated maximum age requirements to become a DPS trooper, accepting applicants into their academy who are over 50 years old.

'Gypsy Cop' problem still not fixed
The Dallas News published an excellent investigative report explaining why many smaller, peripheral law enforcement agencies like constables fail to perform adequate background checks on job applicants, perpetuating the practice of "gypsy cops" floating from one agency to another after engaging in misconduct.

Photography is not a crime, but cops may lie and say it is
Via the blog Photography Is Not A Crime, here's a video from the CATO Institute regarding members of the public photographing police while they go about their job and the cops' sometimes extreme dislike of the practice:

A distracting debate over police accidents

In recent years we've witnessed a great deal of demagoguery over "distracted driving" and a push for new, punitive traffic laws to reduce it. Longtime readers know I've found much of this rhetoric unconvincing: "Distracted" driving caused problems long before cell phones or texting, and I see no significant difference between talking on the phone while driving and putting on makeup, eating fast food from a drive-in, fiddling with the GPS, singing along with the radio, disciplining kids in the backseat, thinking about problems at work, or any number of the myriad other distractions drivers face. Plus, the introduction of cell phones and texting has corresponded with an overall national decline in traffic injuries while the population has risen, which doesn't seem to jibe with claims that expanded cell phone use or texting pose a significantly greater risk than all the other distractions out there.

Critics trumpet studies that speaking on the phone is as dangerous as driving with .08 blood alcohol content, but the same studies say hands-free devices are just as dangerous, which means even having a conversation with a passenger in the car would be just as distracting as driving drunk! (The dirty little secret is that driving at .08 isn't all that dangerous - most people who do it never have an accident, and most DWI deaths involve drivers with much higher BACs.)

My personal view is that the blame for human beings being distracted generally lies not with whatever specific thing they're momentarily distracted by but the simple fact that humans, by nature, are distractable and those prone to be distracted - more often young people and inexperienced drivers - will find something to be distracted by because of a general lack of  maturity and mental focus.

That said, what's good for the goose is good for the gander, and if cities like Austin are going to impose texting bans, one thing that's never made sense to me is the bold hypocrisy of putting friggin' laptops in police cars which are far more distracting than any of the things just mentioned. According to Austin's KVUE-TV:

[Austin police] officers were involved in 741 crashes between July 1, 2007 and June 30, 2010.  Officers were found at-fault in nearly half of those crashes.  Nearly 20 percent of the officer-involved crashes were caused by distracted driving.  Officers were using their in-car computers in more than a third of the distracted driving crashes.

So somewhere around 50 of the 741 crashes over a three-year span were caused by "distracted driving" by police, as was the case of this officer who had two distracted driving crashes at the same intersection in a matter of months, both times while fiddling with gadgetry in her car. Fifty over three years' time seems like a small number to me, but in the scheme of things so does the number of accidents caused by texting in the car. So what is the agency doing about the problem? Again from KVUE:

Lt. Cochran says Senior Police Officer Ryan Huling and others in APD’s Tech Unit are making on-screen display changes to make it easier for officers like Dunn to see their computer screens without taking their eyes off the road.  Changes include bigger, bolder font and quick keys.

“To run a plate you had to push two buttons,” Lt. Cochran says.  “Now you only have to push one button, which sounds a lot, doesn't sound like much of a change but it is a big change when you're trying to do that.”

Officers are discouraged from typing while driving. Other changes include an ergonomically correct, swing-out mount that keeps officers from having to lean over to use their computers. 

A couple of things stand out to me from those statements. First, police are "discouraged" from typing while driving, but for the rest of us in Austin even using a Blackberry while waiting at a stoplight or while stuck in traffic is verboten - banned by law and subject to criminal penalties. So the gander receives finger wagging "discouragement" while the goose is cooked.

Moreover, it's absurd to crow that having to push one button instead of two is some sort of "big change." In fact, it's a lie. Officers must push at least seven buttons, because they must enter the license plate number in order to run a plate. One more keystroke makes little difference - the biggest distraction is having the laptop in the vehicle in the first place and rigging it so police can use it while the vehicle is in motion. The solution isn't more rules or "bigger, bolder fonts" but a simple technological fix: The computer simply shouldn't operate unless the gearshift is in the "park" position if "distracted driving" is such a great concern.

Even more ironic, reports KVUE, "Despite all of the technological and ergonomic changes, they say many officers seem most excited about a new addition to their patrol cars: cup holders." But there's little doubt eating and drinking while driving is at least as distracting as their in-car gadgetry, so they're introducing new distractions while making an insignificant change to reduce in-car distractions already identified. Instead of installing cup holders, why not simply make a rule disallowing officers from eating and drinking while the car is in motion? Wouldn't that also reduce distractions?

Again, I think too much is being made of the risks from "distracted driving" and I'm not of the view that a massive new wave of criminal laws is needed. But if police are going to enforce municipal texting bans or give tickets for talking on a cell phone in a school zone, it's disingenuous for them to have a laptop installed in their car that they're freely allowed to operate while the vehicle is in motion. It's not the danger that bothers me so much, it's the hypocrisy.

Vote for me: My work doesn't suck as much as it used to

In an endorsement of Democrat Keith Hampton, the Dallas News says Texas Court of Criminal Appeals Judge Michael "Keasler concedes that the court has a poor reputation, but he says the quality of its work has improved drastically in recent years, bringing it into 'the mainstream' nationally." Keasler's been on the court since 1999, so that's basically an admission that for much of that time the court's quality of work has been shoddy. And of course, to the extent the quality of the court's work has "improved drastically," it's mostly because Keasler has more frequently been in the minority.

Blog interviews with Whitmire, Ellis

Charles Kuffner at Off the Kuff recently posted interviews (audio only) with Texas Senate Criminal Justice Committee Chairman John Whitmire and state Sen. Rodney Ellis, two Democratic leaders on criminal justice topics. Interested readers may want to give them a listen.

Whitmire's interview was particularly notable for identifying three prison units he thought should be closed: the Central Unit in Sugarland, the Dawson State Jail in Dallas, and a privately run pre-parole facility in Mineral Wells. The one in Sugarland, he said, is probably a "goner." His comments focused more on institutional issues, while Ellis' interview digressed more onto innocence-related topics.

Thanks to Chuck for letting me know about the interviews, which he conducted during my absence.

TDCJ budget cut suggestions set agency up to fail

The state budget folk who estimate such things now say Texas' budget shortfall may be a jaw-dropping $21 billion next biennium, exacerbated by the fact that last session legislators only balanced the budget using $14 million in stimulus funding.

Which brings us to the Texas Department of Criminal Justice's Legislative Appropriations Request (large pdf), which was finalized while I was on vacation. TDCJ by far costs taxpayers more than any other criminal justice agency, so obviously they should be subject to the lion's share of cuts. However, the "Administrator's Statement" warns of all sorts of dire consequences if TDCJ's budget is cut by just 5%, which is the level anticipated by their LAR. Upon closer inspection, though, that's because the agency's suggested budget cuts seem designed to exacerbate rather than avoid bad consequences. Indeed, I have little doubt the agency's budget could be safely cut while avoiding many of the problems described.

For starters, TDCJ fails to suggest closing a single prison unit or policy recommendations to reduce incarceration levels, even though the agency claims a 5% budget cut would necessitate the "elimination of approximately 1,700 correctional and unit-based positions." Such a cut, they say, would have a "profound effect on our ability to securely and safely house, feed, clothe, and provide health care to those offenders incarcerated in TDCJ," but that's only true if they don't scale back the number of units to safely staff the facilities they continue to operate. Nowhere is there a hint of at the obvious truth that if the state chose to incarcerate fewer people, most of the terrible problems they prognosticate could be avoided.

For example, the agency suggests cutting $37.5 million per year for healthcare at its state-operated units compared to 2009 levels, which is an absurd proposal unless the agency also reduces the total number of incarcerated inmates. Healthcare costs are increasing faster than inflation and UTMB, which provides healthcare for 80% of TDCJ inmates, has said it can't operate on its current budget, much less with tens of millions less.

Another odd one: TDCJ suggests cutting food costs by $18.7 million per year compared to 2009 levels, but how can this be done when a) they don't suggest reducing the number of inmates and b) food costs are rising?

TDCJ says a 5% cut would "hinder the agency's ability to provide institutional substance abuse treatment and continuing aftercare (both residential and outpatient counseling)," but that's because they chose to target cuts in those areas instead of prioritizing money for programs that reduce recidivism. Ditto for reentry, rehabilitation programs and mental health spending. These suggested cuts seem expressly designed to drive up recidivism and boost the prison population instead of proposing a more sustainable way to get by on less money.

Similarly, the LAR says that "Reductions in the probation function would reduce the resources that are available to judges and probation officials in managing offenders within the community. Residential programs, treatment programs, probation caseload ratios and the number of specialized caseloads would be impacted. With fewer resources and options aimed at diverting offenders from prison, the incarcerated offender population could grow larger." That's true, as far as it goes, but again only if the Lege accepts the agency's ill-conceived recommendation to slash probation. This writer has repeatedly argued that the only way to safely cut the corrections budget is to increase funding for community supervision and make the big cuts in TDCJ's institutional division, which has more than 34,000 employees and accounts for more than 80% of the agency's budget.

Indeed, TDCJ clearly thinks they should not only keep open all their existing facilities, but pay to repair and upgrade units that in some cases are old and outdated, declaring that: "Continued repair and rehabilitation funding is necessary to maintain our existing physical plant, numbering over 100 correctional facilities statewide. Many of these facilities are over 75 years old. The size, scope and complexity of our physical plant requires substantial ongoing preventive repair and renovation." Regular Grits readers know that Texas' older facilities cost more per inmate to operate; the agency should close at least some of them instead of seek more money to repair them all.

TDCJ also suggests continuing all contracts with private facilities, though several end this year and seem like prime targets for cutting. Some private vendors provide halfway houses and drug treatment services that need to be retained because closing them might reduce parole rates, but those simply warehousing inmates ought to be at the top of the list for the chopping block.

One silver lining: For the first time in years (if ever), TDCJ suggests zeroing out its budget for new facility construction. The state's experience since deciding to triple prison capacity back during Ann Richards' administration has been "if you build it, they will come," so at least the budget crisis may put an end to that ignominious trend.

Virtually all of TDCJ's funding - around $3 billion per year - comes from state General Revenue funds, as opposed to programs like Medicaid where federal matching funds mean the state loses more money than it saves from cuts. So to cut state spending overall, it'll be difficult bordering on impossible to avoid cuts at TDCJ. Indeed, polls show prison spending is one of the few areas where the public supports budget cuts.

Bottom line: It's folly to suggest across the board cuts instead of targeting them in the institutional division, where most of the agency's budget is spent. IMO TDCJ officials actually know better but are suggesting cuts that would cause so many problems they hope legislators will be too scared to make them. This is a typical bureaucratic maneuver but inherently bad public policy. Let's hope legislators see through it and propose sufficient policy changes so that cutting the prison budget can actually be done safely.

County indigent defense costs far outpacing inflation

While I was away, most Texas counties approved their annual budgets and one of the big criminal justice growth areas in recent years for many of them has been rising indigent defense costs - a function of increased state regulation and the fact that the number of new cases has continued to rise (inexplicably) despite crime declining across the state.

In 2009, Texas counties spent a total of $186,307,540 on indigent defense, more than a 109% increase from 2001 when counties spent $91,426,518, according to public data on the website of the Task Force on Indigent Defense. According to the Inflation Calculator, overall inflation increased just 21% over the same period, meaning the costs in many jurisdictions are soaring compared to other expenses. Here are the data for a few selected counties:

Increased county spending on indigent defense: 2001-2009

Bexar: 146.23%
Cameron: 187.59%
Dallas: 39.41%
Denton: 89.38%
El Paso: 111.09%
Fort Bend: 333.84%
Galveston: 122.20%
Harris: 135.19%     
Hood: 178.25%
Hunt: 245.44%
McLennan: 110.30%
Montgomery: 205.77%
Nacogdoches: 190.10%
Potter: 28.13%
Randall: 94.33%
Smith: 74.64%
Tarrant: 135.83%
Travis: 89.34%
Val Verde: 303.88%
Victoria: 186.61%
Webb: 115.33%
Wichita: 95.61%
Williamson: 204.76%

The state regulations were installed in response to federal courts' determinations that Texas' indigent defense systems were inadequate and aren't likely to change any time soon. But there are things counties can do to rein in these expenses, specifically establishing public defender offices and simply prosecuting fewer people. For example, Dallas is the only large county on this list that has had a public defender office for all of the last decade, and their costs grew at a dramatically lower rate than other large jurisdictions.

The Lege could help with this by downgrading certain Class B misdemeanors to Class Cs - marijuana arrests in particular are a big one, but they could also consider downgrading some of the other offenses for which police have been authorized to give a summons instead of making arrests. Courts must supply indigent defendants with lawyers for Class B misdemeanors on up, but Class Cs carry only fines as punishments and don't trigger counties' indigent defense responsibilities.