Appellate court: Drivers with licenses suspended over unpaid surcharges are eligible for occupational licenses

Drivers whose license was suspended because of failure to pay Texas' Driver Responsibility surcharge (the civil fees paid for three years in addition to fines for certain traffic offenses) are eligible to apply for occupational drivers licenses, according to an appellate ruling out of Fort Worth's Second Court of Appeals last week, despite DPS' insistence to the contrary. According to background on the case from the opinion:

Mr. [Barry] Wood is indigent and unable to pay the surcharges to lift the suspension.  The Department of Public Safety (DPS) sent Mr. Wood a letter explaining that DPS would be implementing various programs to reduce or waive surcharges for those who cannot pay them, but none of those programs will be in effect until 2011.  The letter also provided Mr. Wood instructions for applying for an occupational license.

Mr. Wood then petitioned the trial court for an occupational license, claiming that his license was suspended for his failure to pay the surcharges and that he has an essential need for transportation to and from work and other locations as required by his probation plan.  There is no reporter’s record of the hearing, but the clerk’s record shows that DPS submitted a memorandum after the hearing in which it argued that a person suspended for failure to pay the Driver Responsibility Program surcharges is not of the class of people to which an occupational license may be granted.  The court denied Mr. Wood’s petition for an occupational license “for petitioner’s failure to pay surcharges or enter into an installment agreement.”

The appellate court disagreed, however, and said failure to pay DRP surcharges did not under law preclude provision of an occupational license. "Mr. Wood’s license is not suspended for any of the listed reasons which would prohibit him from obtaining an occupational license.  The statutory list is exclusive, and we cannot expand it."

If DPS has been routinely submitting memoranda to courts arguing "that a person suspended for failure to pay the Driver Responsibility Program surcharges is not of the class of people to which an occupational license may be granted," this could open the door for drivers to get occupational licenses if they don't qualify for indigence or amnesty programs the agency will implement in the next few months, certainly within the jurisdiction of the Second Court of Appeals.

Between this ruling and the new DPS rules, a little wiggle room is beginning to open up for the 1.2 million drivers who've lost their licenses in this expensive, self-defeating surcharge cycle to make their way back to becoming legal, licensed and insured. Really, though, best of all would be if the Lege just called the whole thing a failed experiment and passed Rep. Leo Berman's HB 299 to abolish the surcharge altogether.

Odds and ends

Here are several items that deserve Grits readers' attention even if I don't have time to write more about them:

Cool reception for 'DWI-lite'
Senate Criminal Justice Committee Chairman John Whitmire says the idea is unworkable and MADD says it's not part of their agenda.

We got your border security right here
Crime in El Paso dropped more than in any other US metropolitan area since the turn of the century, says the Urban Institute. New York City and its environs ranked second in crime reduction; the McAllen-Edinburg-Mission area saw the sixth largest crime drop.

Grand jury considers Dallas constable allegations
The special prosecutor investigating corruption allegations against Dallas constables took allegations to a grand jury that could result in indictments as early as Wednesday.

'Shock probation' granted in DWI death case
A rare punishment handed out in a sad Harris County case.

Juiced, and other bad police mojo
A reserve deputy constable in El Paso, Horatio Garcia, stands accused of selling steroids after being caught up in a sting by the Sheriff's office. Officials won't say who he was selling to, but it wouldn't surprise me if some of his customers turned out to be others in law enforcement. Notes the El Paso Times, "Garcia is one of several El Paso law enforcement officers who have been arrested recently. Detention officer Derric Vidalez was arrested by sheriff's deputies on suspicion of insurance fraud on Sept. 3, police Sgt. Alberto Madrid was arrested for allegedly stealing a money box while working off-duty at a wedding reception at Bebe's Hall on Oct. 9., and police Officer Mark Munoz was arrested on suspicion that he committed a sexual assault while off-duty in October 2009."

Exposed, in hindsight
Inmates blogging via post at Prison News Exposed: The Texas Prisoner Journal, are taking a hiatus, but left some interesting recent posts on topics including race and homosexuality in prison before departing.

SCOTUS takes on California prison overcrowding
The US Supreme Court today held oral arguments to determine whether California must release tens of thousands of inmates from its overcrowded prisons. See coverage from SCOTUSBlog and listen to podcasts featuring the lead counsel from both sides. Relatedly, according to recent polling, "The only budget cuts that attracted broad support [among Californians] were for the prison system. About 70 percent of those polled said they wanted to spend less on prisons." What would Ronald Reagan do? UPDATE: Here's the transcript from SCOTUS' oral arguments.

Bexar County jail struggling to prevent suicides

There has been another jail suicide in Bexar County just months after a consultant said, “It would appear that the jail system has an unexplained tolerance for potentially suicidal behavior." See past, related coverage from the San Antonio Current.

Innocence, compensation, and past crimes: Does parole revocation from a false conviction trigger compensation?

If a parolee is falsely accused and convicted of a heinous crime then later exonerated by DNA, should the state's compensation statute pay them for time served on the original sentence due to the subsequent (later disproven) parole violation? So, for example, if I'm on parole for theft with 8 years to go, am falsely accused of rape and murder, then proven innocent by DNA 25 years later, should I be compensated for 25 or 17 years wrongful incarceration? Your opinion and mine don't matter nearly as much as the nine members of the Supreme Court of Texas, who last week heard oral arguments in a case of first impression and will soon decide the question. See Chuck Lindell's excellent coverage in the Austin Statesman from over the weekend.

We'll see what the SCOT says, but I was under the impression this question was settled after the compensation decisions surrounding the Tulia episode, which were debated at oral argument, reports Lindell:

Complicating the comptroller's case is an attorney general's opinion related to the 1999 Tulia drug sweep, a botched affair that prompted Gov. Rick Perry to pardon 35 people whose convictions were tainted by misconduct by a prosecutor and an unsupervised undercover investigator.

One of those pardoned ended up serving concurrent prison sentences when his probation on an unrelated drug charge was revoked. Asked in 2007 whether the man could still receive state compensation for wrongful imprisonment, Abbott's office said yes.

During oral arguments, several Supreme Court justices asked about the apparent discrepancy between giving state money to somebody who was on probation but not somebody on parole.

"Both probation and parole are forms of conditional release, that is true, but it is not proper to say the two are the same," Lionberger responded.

"When someone receives a probated sentence, they don't actually serve a sentence. (The sentence) is probated; it is postponed," he said. "If you complete your probation, you will not have ever suffered a criminal sentence."

Parole, however, is offered to people who are serving a prison sentence, Lionberger said. Their sentences continue even after they're freed, he said, with custody simply transferring from the institutional division to the parole division of the Texas Department of Criminal Justice.

A round of skeptical questions followed.

Lindell also included this tidbit on the number of exonerees who've received compensation under the new statute passed last session:

Texas has paid $42.4 million* to 16 exonerated inmates since state law changed Sept. 1, 2009, to increase compensation for wrongful convictions.

Compensation was cut a total of $4.16 million* for five of those inmates because of prior convictions.

*Includes a lump-sum payment and a matching annuity.

Source: Texas comptroller's office

Since the $42.4 million figure includes future annuities, the state has really so far only paid out a little over half that sum.

Indigent defense remains underfunded

A story in the Fort Worth Star-Telegram published on Thanksgiving Day by Martha Deller lamented a systemic underfunding of indigent defense across the state in the face of growing demand. The article opened:

A shortage of qualified criminal defense attorneys has delayed felony trials in some parts of Texas and resulted in some low-income people accused of misdemeanor offenses going without counsel, according to the Texas Task Force on Indigent Defense.

Counties are also struggling to pay for indigent defense, the task force says. Last year, counties paid $186 million to serve 471,000 defendants. But the state funded only $29 million of that in grants administered by the task force, said Wesley Shackleford, deputy director of the task force.

To help address the problems, the task force is calling on the Legislature to make it easier for counties to establish public defender's offices or to manage programs that assign attorneys to represent criminal defendants who cannot afford their own counsel.

Task force officials also want legislators to budget more money to pay for indigent defense.

The recommendations come at a time that the percentage of indigent defendants keeps going up: 65 percent of felony cases and 35 percent of misdemeanor cases last year, Shackleford said. The percentages are even higher in large counties, Shackleford said.

In most counties, including Tarrant, judges use a computer-based rotation system to appoint private attorneys to represent indigent criminal defendants.

Many smaller Texas counties, however, lack enough qualified attorneys to meet the increasing demand, Shackleford said. That means that judges in small counties must sometimes recruit attorneys from 50 to 100 miles away to represent people accused of serious felonies such as murder and robbery. That can delay trials, he said.

Facing a massive budget shortfall, the chances that the Legislature will pony up more money for indigent defense at the county level seem pretty slim. And I don't know what can be done about small, rural counties without enough lawyers to take cases. That strikes me as similar to the problem retaining doctors in rural areas, and possibly is an argument for creating (possibly multi-county) public defender systems in those smaller jurisdictions.

RELATED: County indigent defense costs far outpacing inflation.

Consultant: Dallas jail understaffed, lacking accountability

Kevin Krause at the Dallas News has the backstory of how a consultant costing taxpayers more than half a million dollars is trying to help the Dallas County Jail pass inspection for the first time in 8 years ("Consultants brought in to help Dallas County jail finally pass inspection," Nov. 28). Here are a couple of notable excerpts:

The jail population has grown by about 1,000 inmates this year despite falling crime rates and fewer people being booked into the jails. The consultants say the county's criminal justice system is prosecuting inmates much slower than it was only a year earlier.

When the jails failed inspection in March 2009, it came as a blow to county commissioners. They had authorized more than $170 million in improvements, including a new jail tower, in an attempt to fix inadequate staffing, poor sanitation and maintenance, and faulty fire-safety systems.

Two months later, the commissioners sought outside help. They signed a contract with Griffith, who served as Jefferson County's sheriff for eight years and its county judge for a decade. The firm has been paid $537,494 through August 2010, records show.

One of the firm's first assessments was that the Sheriff's Department did not hold employees responsible for problems that persisted. Some inside the agency agreed.

Krause reports that consultants found initial resistance to their recommendations and

could not get the data they needed fast enough.

"They don't seem to have the same sense of urgency that we like to operate with," [consultant Richard] Kirkland wrote. 

[Sheriff Lupe] Valdez said there is always initial resistance whenever an outside agency is brought in to study an organization's operations. She said it was "quickly resolved with open communication and teamwork."

The state requires one guard to supervise every 48 inmates. Despite spending millions in overtime, the sheriff could not keep up. As a result, the county was spending too much money on overtime and contributing to burnout among officers, the consultants concluded.

They quickly discovered the problem: The jails were fully staffed on paper, but the sheriff had problems filling shifts because of unplanned absences.

"Our review of the Sheriff's Office indicates a stressed and overworked agency that does not appear to have the time or the 'system' to address these issues," the consultants wrote in a status report.

Griffith devised a more accurate staffing plan and then recommended more jail guard positions to help plug the holes, which commissioners approved. Valdez said that her agency had already identified the need for more officers and that Griffith "validated our findings."

I sent an email to the media relations person at the Dallas Sheriff asking for the various status reports from this consultant and may have more to say on this subject after I've seen the primary documents.

Capitol security theater: Insert phallic joke about 'wanding' here

I visited the Texas capitol yesterday and, as has happened every single time I've gone in since they installed metal detectors at the doors, the detector went off even after I'd emptied my pockets and I had to be independently "wanded," which is now apparently a verb, and not in a cool, Harry Potter sense. I don't wear any jewelry and was about as de-metaled as I could be without disrobing or perhaps removing the fillings from my teeth. It strikes me that once the massive volume of people that comes with session hits those entrances, if that happens to everybody, lines are going to be backed up six ways from Sunday.

It's hard to see how a security system that requires doublechecking every visitor is really feasible given high capitol traffic during the legislative session. The metal detectors were put in because an angry constituent fired off a gun outside the building on the capitol grounds, but all the new "security" has done is ensure that, if that happens again during the height of the legislative session, there will be large gaggles of civilian human targets available for the shooter at every capitol entrance. To me, this is pure security theater that actually exacerbates the threat to which it's responding.

I will say this: The DPS troopers at the entrances seem to be lightening up a bit (or maybe I just caught somebody in a good mood). I've been in the capitol maybe a dozen times since the metal detectors went in, and the demeanor of troopers before yesterday had ranged from professional and polite to kind of jerkish. Once a trooper at the capitol entrance began asking where I was coming from, etc., as though he were questioning a driver at a traffic stop. "Outside," I told him curtly, gathering my belongings and heading off to wherever I was going that day.

Yesterday, though, even the screeners couldn't help but engage in dark humor regarding their task. When the metal detector inevitably went off, the fellow with the wand announced, half-giggling with a knowing look to his partner, "Raise your arms, I need to check you for guns, grenades, rocket launchers ... you never know." Submitting to his perfunctory sweep, I laughed and replied that, knowing they'd yet to install TSA-style full body scanners, I'd come prepared and brought naked pictures of myself if the troopers would like to see them, reaching theatrically into my jacket pocket as though rummaging for the photographs. This brought big belly laughs, and the trooper with the wand told me that wouldn't be necessary "at this time."

Municipal court revenue plummets as Houston police skip morning traffic court sessions

Here's an example how relatively trivial cost cutting at the municipal level can create much greater expenses elsewhere in the system. Click2Houston has a story explaining why "simple traffic court cases are dragging out for years" in Harris County. "'If you have a ticket date reset right now, I think most of the time your reset date is like a year or more out,' explained Gary Blankinship, president of the Houston Police Houston Officer's Union." Further:

Blankinship blames the delays on a new policy that doesn't allow officers to appear in court until 1 p.m., while drivers have to be there at 8 a.m.

"We're here because you asked us to be here," said John Crochet. "We're ready, but you're not."The time change was designed to reduce overtime for Houston police, and overtime is down since the new policy started in August. Granted , three of Taylor Crochet's trials were reset before that time, but officers say we can expect to see many more cases just like his now."But apparently the system is so backlogged it takes forever to get your case to trial," said John Crochet."I don't think the changes have helped anything," said Blankinship. "It's actually caused more problems."

The most unfortunate part of the new policy, beyond its hubris (see prior Grits coverage), is that it's actually costing taxpayers money overall, not saving it:

While the city has saved a quarter-million dollars on officer overtime in just two months, revenue at municipal court is down $2.3 million in August, September and October 2010 compared to the same three months last year.

Officers say it's because so many cases are being reset and unresolved that fines are not being paid.

Via Texas Watchdog, which assisted Click2Houston with its investigation.

How to make $98K distributing pagers

A strong staff editorial in the Austin Statesman today opens like this:

Who can make $98,000 a year for handing out pagers to fellow employees?

The answer is an Austin police officer who was fired for breaking the law and lying but then reinstated to the force through a civil service arbitration system.

His offenses and dishonesty make it risky to assign him to regular police work so he collects a fat paycheck for doing what is called basement duty.

Such is the broken system that permits arbitrators to substitute their decisions for those of police chiefs across Texas with virtual impunity. Until the Legislature fixes that, this community is stuck with bad decisions and cops who collect handsome salaries after they've abused their badges.

Preach! Read the whole thing.

They're right that only the Lege could fix this problem, but unfortunately the issue in Texas is bad on a bipartisan basis, with members of both parties falling over themselves to curry favor with their local police unions, who years ago achieved a standoff with the Texas Municipal League (which represents Texas cities) over the contents of the civil service code, arbitration provisions, etc..

These are among the issues that first drew me into the criminal justice arena fifteen years ago and they remain among the most stubbornly resistant to reform. There's generally no public interest faction at the table in debates over the civil service code at the capitol, just the institutional players, and one thing I've noticed is that newspaper editorial writers seldom get to sit at the negotiating table over bills.

Texas Public Policy Foundation: Close prisons, expand diversion programs, no new enhancements

The Texas Tribune has posted an interview with Marc Levin from the conservative Texas Public Policy Foundation think tank suggesting ways to improve safety and save money in the criminal justice system, including closing prisons, expanding diversion programs, and resisting the urge to pile on new "enhancements."

I asked after the election if the conservative mandate on criminal justice was to "git tuff" or to save money? Clearly TPPF thinks the mandate falls in the latter camp. I hope the Legislature agrees.

Federal judge to Houston: Keep collecting red-light ticket money

In the wake of a plebiscite banning their use, a federal judge has ordered the City of Houston to continue issuing tickets using red-light cameras, reports Bradley Olson at the Houston Chronicle:

The contract, which covers the use of 70 devices at 50 intersections, was scheduled to run until 2014. In the event of a cancellation, ATS had 45 days to take the cameras down.

The order issued on Friday halts the removal of the cameras until the matter is resolved in federal court.

I can see requiring the City to give 45 days notice before ending contract, but would think petitioners and the voters who supported them will be pretty grumpy if the judge orders the city to continue the contract through 2014. The briefs in the federal case should be interesting reading when they're filed. Olson reports that: "The city and ATS will brief the validity of the referendum under municipal, state and national laws by next Friday, according to [Judge Lynn] Hughes' order."

More federal child porn prosecutions in Texas than bank robberies, mail fraud or wire fraud

Lee Hancock at the Dallas News has an interesting account of a sympathetic defendant from my hometown who received a below-guidelines sentence in a federal child pornography prosecution. Reports Hancock:

Child porn possession has been a federal crime since 1990. In the last decade, federal prosecutions more than doubled in Texas and nationwide. In Texas, the cases have grown faster than nearly any category of federal offense, according to Syracuse University's TRAC database. Since October 2007, more child porn cases have been filed in Texas than old-school federal prosecutions for bank robbery or bank fraud, mail fraud or wire fraud.

The cases often involve seemingly ordinary people with stable jobs and families. The nearly 1,000 Texans prosecuted since 2000 include band instructors and businessmen, physicians and pastors and prison guards, restaurant managers and retirees.

Further,

In the last decade, according to a federal public defender's 2009 analysis, the mean federal child porn sentence increased by nearly six years in the decade ending in 2007 to more than 7 ½ years in prison.
Some experts note that those increases came without any scientific data or rationale. Most offenders, like Paroline, have no prior records – let alone sex offenses.
"People who look at child porn need to be arrested and need to have consequences. I think the consequences should be equitable," said psychologist David Delmonico, director of Duquesne University's online behavior research and education center in Pittsburgh. "I think we're on a modern-day witch hunt for child-porn offenders.

See this related chart (pdf) depicting the growth in child porn prosecutions both nationally and in Texas over the last decade.

On the possibilities of police 'hook books' for probation supervision

Tanya Eiserer at the Dallas News has an interesting story today on the Dallas PD's electronic revival of the old-school idea of "hook books":

Police have made at least 700 arrests since January through the program of using color-coded charts to track offenders at the street level.

"In Dallas, we have a huge ocean of arrestees and criminals," said Officer Joe King, who pioneered the concept at the city's southeast patrol station. "What we've done is taken a small piece of that ocean and set it aside and created a small pond so we can place small criminal groups under the microscope to better study and track."

The concept has since spread to include electronic hook books for monitoring robbers and another tracking drug dealers. All seven Dallas patrol stations have adopted hook book programs, and the department's auto theft unit will soon roll out one tracking auto thieves, chop shops and auto theft rings. 

In general, I think this is a good idea to the extent it focuses scarce police resources on the most serious offenders. The Chief of the Lancaster PD told Eiserer that "It's a simple thing that I think police departments have gotten away from because they were focusing on call to call to call." These "hook books," though, are only as good as the data entered into them, and historically Dallas doesn't have a great record tracking all its crime data properly, sometimes even altering data for political purposes.

Also, they'll work better if focused on folks assessed as high risks as opposed to spending their time chasing down workaday probation violators, which were the two specific examples given in the story:

The southeast patrol is tracking more than 400 burglary offenders.

They include David Graham, a convicted burglar known to police as "Diamond Dave." Prison officials released him from a drug treatment program in July.

Recently, a tip led officers to Graham's whereabouts as he slept inside an abandoned van in the junk-filled backyard of a squalid Pleasant Grove home. Police arrested him on a probation violation warrant for burglary and drug charges.

"I didn't even know I had a warrant," said the glassy-eyed Graham, who denied that he does drugs or steals anymore.

Or consider the case of Broderick Merritt.

Merritt received probation for attempted burglary and robbery in 2008. In October, prosecutors sought to revoke Merritt's probation because he violated the terms, including failing to report to his probation officer and not paying fees.

His arrest warrant popped onto Officer Matthew Bacon's radar during a routine check. Merritt had been wanted for two days when officers captured him; in the past, it could've taken months.

"You might not even have known that he had a warrant unless you ran across him," said Bacon, who has made about 30 arrests using information gleaned from the hook books.

Merritt then spent about two weeks in jail before prosecutors agreed that he should continue on probation.

At the southeast patrol, the average burglary offender monitored in the hook book spends about 21 days in jail, with many spending far less. But police count every day in jail as a small victory, because that's one day when offenders can't commit new crimes.

Ironically, there are others at the county - notably Commissioner John Wiley Price and those charged with paring down the county's budget - who would consider every day less such offenders spent in jail a "small victory." Dallas is nearly to the point where the jail is so full they must ship overflow prisoners to Waco. Government here is working at cross purposes.

There are strong arguments, familiar to Grits readers, against filling local jails with probationers solely for "failing to report to [their] probation officer and not paying fees." What's needed here is not more jail time but stronger, more meaningful, evidence-based community supervision. And the courts need to act more swiftly. It's great that the guy is picked up 2 days after the warrant is issued, but then it shouldn't take sitting 14 days in jail to process a probationer for technical violations who's going to be released again, anyway. That inefficiency is wasting taxpayers' money and needlessly filling up the jail. It's one thing if a judge orders jail time for a probation violation, but it's a waste for probationers to spend weeks in jail just because of inefficiency in the courts before a decision can be made.

Even according to the criminological theory attributed to police in this story -  that "every day in jail [is] a small victory, because that's one day when offenders can't commit new crimes" - unless there is some intervention to change offender behavior, arrest and detention only postpones instead of prevents new crime, and not for very long, either. In reality, neither the county nor the state cannot afford to incarcerate everyone arrested indefinitely as a preventive.

This brings to mind a conversation on this blog recently where I made this related point: "There's a false but common belief that jail or prison is 'punishment' and community supervision is somehow escaping punishment. In reality, for many defendants it's more difficult, and a more significant 'punishment,' to require them to live straight in the free world than to spend a short period of time in lockup, after which they'll get out and resume their old behavior. It's actually not that difficult to sit in jail, at the end of the day, compared to changing your friends, lifestyle and attitude."

Though Tanya's story is about the police, the problems I'm describing are more attributable to local judges and how they run their dockets, as well as the probation department which judges collectively control. When cops improve efficiency at one point of a log-jammed system and that has served to highlight another in the local judiciary. But it's also worth asking if arresting technical probation violators, which is basically all police are presently empowered to do, is really the right approach? Perhaps it'd be possible to give officers more discretion to deal with probationers guilty of only technical violations to avoid incarceration and promote renewed compliance.

Certainly where there is reason to believe the probationer, when not in custody, is actively out engaging in an ongoing crime spree, it may be true that every day the offender spends in jail prevents more crime. That's not necessarily accurate for the average probation violator, though, and probably not in the two instances described above unless there's something more to the stories than conveyed by the Dallas News. In both cases, lesser sanctions would likely have succeeded at renewing compliance with supervision requirements, which in the end should be aimed at promoting success, not just punishing failure. But through no fault of their own, police officers' authority in such circumstances is limited - basically all they can do is arrest someone when the court issues a warrant.

I'm spitballing here, I don't know exactly what an alternative might look like, but perhaps the dated silos of authority distinguishing police officers and probation officers could be somehow broken down for this single, narrow purpose, using this virtual "hook book" tool in creative ways to both improve probationer compliance but also to reduce jail overcrowding. Perhaps, for example, officers could take past fees via credit card and schedule a next appointment with a probationer's PO (or the court) while there with the offender before sending them on their way with a summons. Maybe instead of taking them to jail, police could transport probation violators to some sort of day-reporting center like Judge Cynthia Kent helped create in Tyler where small-time cases could be handled on what amounts to an outpatient basis. In Bexar County there's a facility called a "Crisis Care Center" where some offenders are taken instead of jail for basic medical care, psychiatric screenings, detox and community treatment connections. None of these analogies are exact, and of course any suggestion that costs money will be viewed as suspect in this era of super-spare budgets. But it seems like there ought to be some clever way to tweak the system to keep technical probation violators from filling up the county jail.

The simpler solution, of course, since it wouldn't require re-imagining anyone's job duties, would be for the Dallas judiciary to more promptly dispose of probation violation cases, perhaps creating special dockets to facilitate more prompt decisionmaking in cases like the ones described above. That should be possible and if not, given the practices described, the jail will likely continue to fill up even as crime overall declines.

We Are All Safer Now: Willie Nelson busted for pot (in other news, sun rises in east)

From KVIA-TV: "According to Hudspeth County Sheriff Arvin West, Nelson was traveling in his tour bus from California to Austin when Nelson was detained by Border Patrol agents at about 9 a.m. Friday. Hudspeth County Sheriff's deputies arrived at the checkpoint and then booked Nelson into the Hudspeth County Jail on a $2,500 bond."

Don't you feel safer knowing that Border Patrol checkpoints are catching septuagenarian music stars with pot? I'd like to meet the genius investigator who figured out there might be marijuana in Willie Nelson's tour bus. Perhaps he thinks this will teach Shotgun Willie a lesson and henceforth he'll abstain?

Drug cartels are all but running parts of Mexico, while large quantities of drugs continue to successfully make their way north, with guns flowing south. None of these checkpoints, unmanned drones or other over-hyped tactics seem to make a dent in that problem, but at least they caught Willie, making him wait a few hours, perhaps crooning "In the Jailhouse Now," before posting bond and heading on his way.

So which of his songs do you think Willie was singing after he left the Hudspeth County Jail? A few offhand guesses: "Smoke! Smoke! Smoke! (That Cigarette)"? "I'm a Worried Man"? "No Alibi"? "Nobody's Fault But Mine"? "Last Thing I Needed First Thing This Morning"? "Nothing I Can Do About It Now"? Or maybe just, "On the Road Again"?

Willie seems like a laid back guy and I'm sure he doesn't hold a grudge. When he got back to Austin, I've little doubt he took his own advice from his funny (if mildly heretical) marijuana themed Christmas tune on a 2008 Stephen Colbert special:

And the Wise Men started tokin'
And Yea, the bud was kind
It was salvation they were smokin'
And His forgiveness blew their minds ...

Sleep well tonight, Texans. The Red-Headed Stranger has been apprehended and will be sternly dealt with. We are all safer now.

Criminals in Lubbock pause for Tech football games

Crime in Lubbock declines 14% when Texas Tech plays football, reports the Lubbock Avalanche-Journal. Further, for the period examined, "Tech’s 2008 upset of then-No. 1 Texas correlated with the sharpest drop in calls — more than 25 percent fewer calls than the average for the 7 to 11 p.m. period."

I'll bet there wasn't a lot of crime in College Station last night.

Thanksgiving Day Open Thread

Hope y'all are having a great holiday. Here's a story from the Fort Worth Star-Telegram on the Thanksgiving meal in Texas prisons and similar story about today's menu at the Harris County Jail. Even so, "at the Harris County Jail, the gustatory delights of Thanksgiving will recede as swiftly as they arrived. Supper today — to be served at midafternoon — will consist of corn dogs, minus the sticks."

Meanwhile, here's wishing Anthony Graves, Michael Green, Allen Porter, Stephen Brodie, and other Texas exonerees who were let out of prison in the last year an especially happy day today. I can only imagine how welcome their first Thanksgiving must be after spending years in prison for crimes they didn't commit. 

And, happy birthday today to Rev. Charles Kiker, a friend and ally for the last decade and regular Grits reader.

Finally, though it's off topic save for the "eating" theme on Thanksgiving Day, I feel compelled to share this short, simple tune from Woody Guthrie that's currently my four-year old grandaughter's favorite and is rapidly becoming mine. The tune's been in my head all morning while working on our own household's Big Meal. It's hard to sing it and not feel more cheerful. Try!

Use this as an open thread to talk about eating, or any Texas criminal justice topics your hearts desire.

Texas 2010 NIJ grants

Now that the federal FY 2010 has come and gone, here's an account of grants given to Texas recipients in the last year from the National Institute of Justice, compiled from this source:

• City of Austin, Forensic DNA Backlog Reduction Program: $182,097
• Houston PD Crime Lab, Forensic DNA Backlog Reduction Program: $1,143,339
• Bexar County, Forensic DNA Backlog Reduction Program: $127,119
• State of Texas, Forensic DNA Backlog Reduction Program: $2,401320
• Tarrant County, Forensic DNA Backlog Reduction Program: $280,892
• University of North Texas Health Science Center at Fort Worth, Forensic DNA Backlog Reduction Program:  $785,138
• Harris County, Genetic Markers Associated With Sudden Unexplained Death or Sudden Infant Death: $254,521
• UNT Health Science Center at Fort Worth, Addressing Quality and Quantity; the Role of DNA Repair and Whole Genome Amplification in Forensically Relevant Samples: Center at Fort Worth      $363,613
• Harris County, Independent Validation Test of Microscopic Analysis of Saw Marks in Bone: $26,409
• Harris County: Gunshot Residue in a Non-Firearm-Related Detainee Population:      $88,837
• Sam Houston State University, Development and Quantitative Evaluation of Steganalysis and Digital Forgery Detection System: $331,056
• Southwest Research Institute, Reducing Uncertainty of Quantifying the Burning Rate of Upholstered Furniture: $497,688
• Texas A&M Research Foundation, Development and Validation of Standard Operating Procedures for Measuring Microbial Populations for Estimating a Postmortem Interval: $476,348
• University of North Texas Health Science Center At Fort Worth, The University of North Texas Center for Human Identification Project: Using DNA Technology to Identify the Missing: $2,808,508
• City of Austin, Police Department Forensic Science Improvement Program: $175,000
• City of Fort Worth, Coverdell Forensic Science Improvement Grant Program: $129,590
• City of Lancaster, Lancaster Police Department Regional Crime Lab: $169,558
• El Paso County Sheriff's Office, Paul Coverdell Forensic 2010 Grant: $175,000
• State of Texas, Coverdell Forensic Science Improvement Grant for Crime Laboratories: $1,828,254
• Tarrant County, Histology Backlog Reduction Program: $67,136
• Texas State University, Project Identification: Developing Accurate Identification Criteria for Hispanic Individuals: $151,325
• Sheriff's Association of Texas, 1033 Program Support: $4,609,496
• Sheriff's Association of Texas, Advancing Criminal Justice Policy, Practice and Technology — Evaluation of Low-Cost Aviation Options for Law Enforcement: $485,146

I may have missed a couple but those are the ones I identified where money came to Texas.

I've got to say, while the money for DNA backlogs, etc., is certainly needed, given the glaring need for primary research on forensic sciences, the priorities depicted by these grants are disappointing.

Pre-Thanksgiving Roundup

Here are a few odds and ends I don't have time to write about today but which may interest Grits readers:

The Politics of Bail
Steven Kreytak at the Austin Statesman had a pretty good story this week on the issue of personal bonds, contrasting anecdotal complaints with systemic issues arguing for their more frequent use.

Solitary Men
Dave Mann at the Texas Observer has a piece on the effects of solitary confinement on mental health, focusing in particular on death row. And speaking of solitary, it's been too long since I've linked to the blog Solitary Watch, which has several interesting recent posts up.

Safe on the Border
A new report says El Paso is the safest large city in America, despite rampaging violence across the river in Mexico: "Last year, there were more than 2,640 murders in Juárez, compared with 13 homicides in El Paso. This year, there have been more than 2,700 killings in Juárez and four homicides in El Paso."

Responsibility Lapses
A cop in Dallas is under investigation because his driver's license was suspended as a result of not paying his Driver Responsibility Surcharge. Another DPD officer was suspended for lying about his reasons for skipping a court date. A deputy constable in Dallas won a whistleblower lawsuit over allegations that he was fired 13 years ago after testifying against his boss in a bribery scheme.

Medical Parole and Budgets
Searching for ways to reduce its prison budget, California is turning to medical parole. See a good story on their new program. “Taxpayers should not be forced to bear the high cost of caring for prisoners who no longer threaten public safety,” said one lawmaker. “Rather than continue wasting millions incarcerating these individuals, we could use the funds to keep our schoolteachers employed.”

Innocence and Harmless Error
I may have more to say later about this academic article, "Revising Harmless Error: Making Innocence Relevant to Direct Appeals"; the author argues that "It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal."

Tough talk on Texas prison system

Monday afternoon I attended a packed lecture at the UT Law School by Robert Perkinson, author of the book Texas Tough: The Rise of America's Prison Empire. UT has put three blog posts online by Michele Deitch, Jorge Renaud, and Mary Crouter reacting to the book. (I've got a copy but I'm afraid it keeps getting pushed down my "to-read" list.)

Perkinson said he focused on Texas (he actually teaches in Hawaii, lucky guy) because the historiography of prisons is biased toward the Northeast and to a lesser extent toward California. Criminal justice policy innovations, he said, don't just flow from north to south but increasingly in the other direction. He believes Texas was the first to forge a hybrid approach to prisons, merging techniques from the north with a plantation-approach dating to Reconstruction.

Perkinson's book (or at least his talks about it - this is the second time I've heard him speak) focuses significantly on issues of race. He believes that we're currently in the second "boom" of incarcerating black felons, and that the first came after the end of Reconstruction when southern racists used criminal laws to impose and enforce Jim Crow. The southern model during that first boom involved "convict leasing," which meant hiring out convicts for their labor to private employers, though none of the money went to the prisoners. Convict leasing was Texas' #1 source of revenue, he said, during the late 19th and early 20th centuries. At one point, Perkinson provocatively announced that "Prison labor helped build the New South just as slavery built the old." The prisoner death toll from convict leasing nationwide was about 30,000 - roughly six times the number of black folks lynched during the same period, he said.

It's rather ironic that convict leasing used to be Texas' biggest revenue source because today mass incarceration has turned into a $3+ billion per year money pit for the state. Perkinson noted that the Texas Legislature had increased penalties and created new crimes during every legislative session since the 1960s, ignoring the fact that "tough sentencing laws are appropriations," or "really entitlement programs," which is an interesting way to look at it. Indeed, prison building, he argued, has been the defining public works project of the last generation, the same way that hydroelectric dams were the defining public works program of the early 20th century and the highway system was during the period after WWII - an excellent and accurate observation.

Perkinson's analysis of the racial politics of criminal justice, to me, anyway, rang more true when he discussed the period from the Civil War through the 1960s. However, some of his rhetoric regarding the post-civil rights era prison boom seemed a tad too overstated and simplistic. In particular, he looks at black folks' disproportionate incarceration rate and attributes its cause to the same explicitly racist motives that animated Texas prison builders after Reconstruction. He thinks that "overincarceration of blacks has less to do with crime than politics."

To me, though, the issue is more complicated than that and the role of racial discrimination less cut and dried.  Regarding drug crimes, I agree there's a strong case to be made that, even though all races use drugs at about the same rate, enforcement is over-concentrated in black neighborhoods and discrimination of various sorts sends too many black folks to prison. OTOH, regarding violent crime, most violence is perpetrated by criminals on people of the same race, and there are disproportionately more black victims of violent crime, by far, than their percentage of the general population. So it's not just that incarceration rates are disparate, but also that black folks are more frequently engaging in violent crime, proportionally speaking, and more frequently victimized by it. Further, for reasons having as much to do with class and culture as race, poor blacks are more likely to suffer from a larger number of risk factors that can disproportionately draw them to criminality.

Given that, I can't in good faith attribute racial disparities in prison entirely to discriminatory policies by the state, and some of Perkinson's commentary on that score seemed too sweeping for my tastes. I don't disagree that there are discriminatory aspects to the system - many of them on the front end via decisions by police and prosecutors - but the analysis cannot (or at least should not) end there. Even if it were possible to eliminate racial discrimination entirely from the system, most of the day-to-day criticisms on this blog, for example, would remain unaffected.

I may not agree with everything Perkinson has to say but I'm still looking forward to reading his exhaustively researched book - perhaps over the holidays when I get a little down time.

UPDATE: Michele Deitch forwards me this link to an audio file of Perkinson's UT talk.

Drug case reeks of judicial bias, misconduct

In a tale somewhat reminiscent of the Tulia debacle, NPR has a story out of Clarksville, TX of a politicized drug prosecution that a local judge tried to continue even after the Attorney General moved to dismiss. See:

• Civil rights, judicial bias surround Texas drug case
• Investigating bias on the bench

Best fact bite in the story: The search warrant wasn't signed until after the local Sheriff, with the DA in tow in full body armor, had already executed an armed raid and search. The judge refused to let charges be dropped and himself attempted to negotiate a plea deal with defense counsel that would have dropped charges in exchange for dropping a federal civil rights suit over the incident.

Excellent stuff. A must read story.

Disputing the premise behind mental health courts

Doug Berman pointed out an academic article titled "Theorizing Mental Health Courts" by E. Lea Johnston that builds on ideas discussed on Grits last year in response to research by Jennifer Skeem. The thesis is that mental health courts were created on a false premise:

Mental health court proponents appear to embrace a brand of therapeutic rehabilitation based on two propositions. First, mental health courts justify segregating and diverting individuals with mental illnesses from the traditional justice system on the basis that their illnesses likely contributed to their criminal behavior. Second, and relatedly, mental health courts operate under the assumption that the amelioration of mental illness symptoms will reduce the likelihood of future criminal behavior. In other words, by treating individuals’ mental illnesses, mental health courts will rehabilitate offenders into law-abiding citizens.

It turns out, as Skeem has argued (her work is cited throughout the paper), mental illness is rarely a direct, causal factor of crime - only about one in ten offenses by people with severe mental illness result directly from their mental health condition. Further, says Johnston, "provision of mental health treatment alone is not an effective strategy for reducing recidivism of offenders with mental illnesses. Studies have found that providing intensive mental health services, and not addressing broader criminogenic needs, does not reduce rates of criminal behavior for individuals with mental illnesses."

Mitigating that argument somewhat is the point raised late in the article that "While major mental illness may not be a causal factor in the criminal behavior of most offenders with mental illnesses, mental illness may play an indirect role in generating socio-demographic conditions linked with criminal activity." That's a lot closer to my view - with notable, sometimes spectacular exceptions, I consider mental illness a factor that worsens a nexus of problems as opposed to a primary crime causing agent. Johnston adds:

Mental illness may contribute, for instance, to a loss of employment, movement into disadvantaged neighborhoods, gain of antisocial acquaintances, and loss of prosocial support—all criminogenic risk factors that heighten risk of criminality. Offenders with mental illnesses are also more prone to homelessness and substance abuse, two factors highly correlated with recidivism. Evidence suggests that individuals with mental illnesses may also enjoy fewer social supports than non-ill individuals. Indeed, some research suggests that offenders with mental illnesses may enter the criminal justice system with a higher concentration of criminogenic risk factors, on average, than non-ill offenders.

By that logic, even if mental illness is only rarely a direct cause of crime, the reason the mentally ill are disproportionately represented in the justice system arguably is that mental illness magnifies other risk factors that might be more easily overcome if it weren't for the offender's disability.

That's why mental health courts may "work" from a practical perspective, even if some of their theoretical  premises are flawed: in practice they're among the only places in the criminal justice system aggressively using evidence-based strong probation programming that actively targets criminogenic needs. Johnston points out: "Some researchers have speculated that, when programs directed at offenders with mental illnesses (such as mental health courts) do reduce recidivism, they do so by addressing offenders’ criminogenic risks, engaging in problem-solving strategies, and targeting situational factors that get an offender in trouble." IMO that's exactly what's happening.

The same can be said for drug courts. The National Association of Criminal Defense Lawyers has criticized drug courts, and last week I spoke with some friends from the Drug Policy Alliance who told me their group doesn't like them either. Many of their criticisms are justified (though such courts are nearly as diverse as the judges who implement them and cookie-cutter criticisms may not always apply). However drug courts, like mental health courts, are more likely to use evidence-based strong probation practices. What's more, judges are more likely to be directly engaged with probationers in such courts instead of leaving all contact to the probation bureaucracy. So in practice they often generate better results even if some of their animating assumptions about addiction, like mental illness, remain open to theoretical dispute.

Perhaps mental health courts and drug courts are examples of doing the right things for the wrong reasons. Evidence-based strong probation works, but counties and the state (often with grants from the Governor) have only been willing to focus the extra resources required for such an approach on special populations - the mentally ill, addicts, veterans, etc. - as opposed to embracing the idea more comprehensively. Johnston suggests one implication of her observations may be an argument for: "an even more capacious form of rehabilitation, conceptualizing crime as the product of criminogenic risks and needs, [that] would support the creation of a newly constituted specialty court system devoted to addressing the dynamic risk factors of all high-risk offenders, mentally ill or not."

Personally I think that's where the specialty court movement is already evolving, and some of Johnston's critiques from the ivory tower may already have been outpaced, at least in some jurisdictions, by practitioners' activities on the ground. But to the extent that core misconceptions animate specialty courts, IMO those are arguments for tweaking the approach rather than abandoning it.

Texas will run out of lethal injection drug in March

The Austin Statesman reports that "Texas has enough lethal drugs on hand to execute 39 condemned criminals, but all doses of one key drug in its inventory expire in March, a situation that could delay executions unless additional supplies are found, state officials revealed Friday." The Attorney General rightly refused to let TDCJ keep the information secret.

The drug shortage could impede executions in Texas as early as next year. Presently there are only three executions scheduled between now and March, leaving as an open question what the state will do after that. It's possible the Legislature will need to take up the question of new execution protocols next spring when they're session. Oklahoma is looking at a replacement drug, and Ohio earlier this year switched to a single-drug lethal injection method.

RELATED: TDCJ offers bogus argument to conceal info on lethal injection drug.

Bosque County jail vote leaves commissioners seeking alternatives

I failed to mention one key election result from tiny Bosque County, where voters this month voted down a jail expansion despite condemnation in annual inspections by the Texas Commission on Jail Standards. According to the Waco Tribune Herald ("Bosque County officials regrouping after voters turn down jail bond," Nov. 6, subscription only), for now "officials will continue to repair the dilapidated structure on an as-needed basis, and work closely with Texas Commission on Jail Standards agents to keep the jail up-to-code and operational."

The decisive factor in a razor-tight race: "Had the bond passed, taxes for the average property owner would have risen by about $54 to $56 per year." A total of 2,640 voted against the jail bond and 2,467 voted for it, reported the Trib. “It’s tough times,” said the county judge, “But I think at some point . . . you have to listen to the voice of the people, and they have spoken. Obviously, they want us to look at other alternatives.”

Will county cost cutting doom empty, speculative jail in Waco?

In Waco, a jail built on spec remains less-than-half full, and the local newspaper is fretting that trends toward greater use of diversion programs may reduce demand for McLennan County Jail beds. Reported the Waco Tribune Herald ("Programs to reduce inmates could affect McLennan County jail," Nov 21, subscription only):

State trends are leaning less toward brick-and-mortar jails to solve inmate overcrowding, but local officials are confident the county’s new detention center will eventually reach capacity, with or without programs to divert low-level offenders out of the system.

County administrations around the state are seeking new alternatives, such as pretrial diversion services, to keep inmate populations down, reducing the strain on jails and shipping fewer prisoners to neighboring facilities, state officials said.

This news comes at a time when McLennan County's speculative new jail built to house out-of-county prisoners can't find contracts sufficient to pay back its taxpayer guaranteed debt:

McLennan County’s recently opened 816-bed Jack Harwell Detention Center partially relies on taking inmates from outside counties to generate revenue and pay off the $49 million bond used to construct the facility. But despite having contracts with at least two large counties to accept outside inmates, the center has not reached more than 50 percent capacity since its opening in June.

According to the Texas Commission on Jail Standards, the center reported Nov. 1 that only 39 percent of its beds were in use.

Coryell County, which has been sending overflow inmates to McLennan, has instituted a Supervised Pretrial Services program to identify inmates who should be eligible for personal bonds. "During the program’s pilot period from May 31 through July 31, the county was able release 17 eligible defendants, saving more than $25,000 per month, according to a report by the Texas Criminal Justice Coalition. The program cost about $150 per week to implement, the report stated." The Trib reports that "About half of the Coryell County Jail pretrial inmates qualify as indigent." It's also interesting to learn that Coryell's use of pretrial supervision was specifically a reaction to the need to raise taxes to expand the jail: "Coryell County has been considering constructing a new, larger jail to alleviate the overcrowding, but residents may balk at raising taxes to fund the venture, said Coryell County Sheriff’s Lt. Kenneth Green."

McLenan County, says the Trib, "has never had a large-scale pretrial diversion services program." And I'm guessing they won't anytime soon, since if they don't maximize the number of inmates in their new, privately run jail the whole thing becomes a "doomsday deal." What a mess.

One interesting if somewhat tangential tidbit at the end of the story relates to the Legislature's penchant for creating new crimes and increasing criminal penalties:

although the detention center is still low on inmates, which could create problems in paying back the facility’s construction bond, Lewis expressed a different fear as the 82nd Texas Legislature prepares to convene.

He’s worried the Legislature could approve new criminal penalty enhancements, either by increasing the minimum sentencing terms for state jail felonies, or by classifying more offenses as felonies.

“Actually, what I’m afraid of is a jail backlog,” he said.

I disagree with Lewis about the jail, but I'm as discouraged as he sounds about the Legislature's fetish with boosting criminal penalties every two years.

Interestingly, according to another Trib story, Harris County has been keeping overflow inmates in the McLennan jail since May but as of last week had yet to pay anything. "County Auditor Steve Moore said Harris County owes about $324,000 in housing costs incurred from June to October." Harris County Sheriff spokesman Alan Bernstein told the paper "a series of mishaps delayed the county in processing the payment," which he said was in the mail.

RELATED:

• While we're on the subject of pretrial services, the Austin Statesman this weekend had an informative little article (with no particular newshook that I can identify) describing the workings of Travis County's much-more well developed pretrial detention program.
• See also a recent report from the Pew Charitable Trust on jail overcrowding and pretrial detention titled "Local Jails: Working to Reduce Populations and Cost" (pdf)

See prior, related Grits posts on the McLennan jail fiasco:

• Waco taxpayers likely on the hook for jail they were promised would pay for itself
• 'Doomsday Deal': Prison for profit scheme in Waco going bust for lack of inmates
• McLennan County private jail deal creates perverse incentives

Splitting hairs at the IRS over taxing compensation for false convictions

A tax lawyer warns that the IRS ruling mentioned last week may not completely end the requirement that wrongfully convicted people pay taxes on state compensation. Robert Wood argues that "this IRS ruling says only that a victim of wrongful imprisonment who 'suffered physical injuries and physical sickness while incarcerated' can exclude his recovery from taxes and can structure it just like other physical injury victims.  We already knew that." He continues in a blog post at Forbes:

I commend the IRS for saying what it did say in IRS Chief Counsel Advice 201045023.  But that isn’t the issue.  The IRS issued a series of rulings in the 1950s and 1960s, involving prisoners of war, civilian internees and holocaust survivors.  Sensibly, the IRS ruled their compensation was tax free irrespective of whether they suffered physical injuries.  Then the IRS “obsoleted” these rulings in 2007, suggesting the landscape has changed.

The IRS has still not addressed whether being unlawfully locked up is itself tax free.  This is a worry, since the Tax Court (affirmed by the Sixth Circuit) dangerously held in Stadnyk that persons who step forward saying they didn’t experience physical injuries or physical sickness will have a taxable recovery.  Stadnyk was a very short term incarceration case, but it may portend continuing adherence to the IRS canard that “there must also be physical injury.”

It is wrong as a matter of tax policy and as a matter of social justice to tax these recoveries.  It is also wrong to leave this area of the tax law to develop piecemeal so some people are paying tax.  The continuing myopic focus on the accompanying injuries or sickness will foment tax disputes about these issues. 

We'll know soon enough whether the IRS is going to be splitting this particular hair in practice, but he's right about the language in the ruling. Indeed, there's a straight-up factual error in the IRS ruling that seems to be the source of the misinterpretation Mr. Woods is lamenting: "The state enacted legislation to compensate individuals who were wrongfully convicted and incarcerated for their injuries, sickness, and economic losses flowing from the physical injuries and physical sickness (e.g., lost wages, future medical bills, etc.)." That's just not true. Compensation in Texas for wrongfully convicted persons is not in the least based on physical injuries or illnesses sustained while incarcerated: It's compensating for the tort of false conviction, and nothing in the statute requires that an individual be physically injured as well as falsely accused. Some were, but not all and that shouldn't be the determining factor.

Counties upset DPS doesn't share more asset forfeiture income from I-40

An article in the Amarillo Globe News says the Department of Public Safety often takes cases to federal court to get a bigger portion of the assets seized and cut out local District Attorneys. Reports the Globe-News ("Cashing In: Who benefits the most from seized currency?" Nov. 21):

DPS officials said the I-40 corridor, which runs through seven counties in Texas, is one of the busiest in the state for criminal activity. Drug cartels and smugglers often use the highway to transport narcotics, weapons, humans and illegal profits from coast to coast.

Perhaps no issue proves more quietly contentious in the local law enforcement community than how the seized currency - about $14.6 million in 51/2 years - is divided among agencies hungry for revenue in a struggling economy.

In the end, only about 6.4 percent - or roughly $935,000 - of those seizures have remained in the area to benefit regional law enforcement agencies and taxpayers, according to hundreds of pages of documents released by the DPS in response to a public information request by the Amarillo Globe-News.

Records indicate DPS officials often choose to bypass Panhandle state courts in exchange for Amarillo's federal court when the largest amounts of money are at stake. It's a decision that has left some I-40 district attorneys frustrated and raised concerns the federal court route gives DPS an easier and larger payday at the expense of local counties and taxpayers.

At issue: DPS gets a larger cut in federal court:

Documents from the DPS indicate if a forfeiture case is filed in state court, the agency generally receives about 65 to 70 percent of the final profit, depending on a predetermined agreement that varies by county. Local counties get the rest. The federal government typically gets nothing, according to DPS records.

If the case is filed federally, the DPS usually receives about 80 percent of the forfeiture, and the federal government keeps about 20 percent.

In return, local counties - even those where the seizure occurred - won't get a penny, unless a county can prove a significant role in the investigation.

BLOGVERSATION: Reacting to this post, Pete at Drug War Rant offers an excellent (if perhaps unlikely) suggestion for asset forfeiture reform to take the profit motive out of drug enforcement.

DPS chases concentrated near border

The Texas Tribune and the San Antonio Express News teamed up to analyze nearly 5,000 high-speed chases by DPS troopers. "Statewide, DPS chases resulted in 1,300 accidents, 780 injuries to troopers, other officers, suspects and bystanders, 28 deaths and an estimated $8.4 million in property damage in the last five years." What's more, "Nearly 13 percent of the chases — 656 — happened in Hidalgo County. Of the 10 counties with the most chases, five were counties along the Texas-Mexico border."

One notable observation: "The analysis also reveals that troopers use aggressive pursuit tactics — including firing guns and setting up roadblocks — that many other law enforcement agencies prohibit. One expert says that DPS policies allow troopers to take too many risks, endangering the lives of officers and bystanders. 'They’re crazy,' says Geoffrey Alpert, a professor at the University of South Carolina, who has studied pursuits at police departments across the country."

Another remarkable tidbit: "The pursuits didn’t always end with fleeing motorists in handcuffs, though. The suspects in about 40 percent of chases in Hidalgo County escaped on foot — or swam away to Mexico — eluding officers and often leaving behind loads of marijuana and narcotics in vehicles mangled in accidents and sometimes submerged in the Rio Grande. Statewide, more than 30 percent of all DPS chases ended with the suspect eluding officers on foot. Fewer than a quarter of all suspects, both statewide and in Hidalgo County, stopped and surrendered."

I would not have guessed that the number of chases ending with the suspect successfully eluding troopers on foot would have been so high, nor that the proportion who stop and surrender would be so low.

Sunset report on Texas youth prisons, juvenile probation: TYC costs per youth too high

The Sunset Commission issued its 39-page Staff Report (pdf) on the Texas Youth Commission and Juvenile Probation Commission on Friday. See MSM reports here, here, and here. Last session, the Sunset Commission suggested merging TYC and TJPC, the report reminds us, but the Lege chose not to do so. And the raft of legislative and agency reforms from 2007 afterward aren't long enough ago for recidivism studies, meaning we can't tell yet if they "worked" from the perspective of reducing crime. So, concludes Sunset staff:

Ultimately, it is too early to measure the impact of recent reforms on recidivism of youth on probation or exiting TYC, making it difficult to assess the success of the State’s investment in diversion and treatment. Sunset staff found that while the agencies have progressed, more work is needed and some time must elapse before reforms can be fully evaluated. Accordingly, staff concluded that TYC and TJPC should be continued for six years.

They did say in the summary that:

While the agencies have implemented most of the required reforms, the juvenile justice system remains in transition and TYC needs to make additional improvements. As the youth population continues to decline, commitment costs and worker injury rates remain high. Staff turnover rates are down, but TYC continues to have difficulty staffing specialized treatment positions, and the agency can still improve the number of youth enrolling in and completing needed treatment.

Overall, "TYC received about $262.4 million in revenue in fiscal year 2009. General revenue accounted for 86 percent of the agency’s total revenue. Other major sources of revenue included general obligation bonds, federal funds, and interagency contracts."

"The smaller population has resulted in excess physical capacity and a higher cost per youth per day," says Sunset staff, which has increased to $323.05 per day. Ouch. On one hand, the success at a legislatively directed policy to depopulate Texas youth prisons so rapidly is the direct cause of the high cost per day: The more youth diverted, the more the agency must pay per youth unless more facilities are closed. OTOH, if there are alternatives that counties could access for a lower cost, the high number provides more fuel for Sen. Whitmire's call to merge TYC with juvenile probation and close most remaining youth prisons.

The average length of parole supervision after leaving TYC is 10 months, Sunset found, with 3,714 youth on the agency's supervision rosters in FY 2009.

The Juvenile Probation Commission "received about $144.5 million in funding in fiscal year 2009. General Revenue accounted for 87 percent of the agency’s total revenue," according to Sunset. "In 2009, TJPC funding accounted for, on average, 26 percent of local probation departments’ operating budgets. However, the percent of a department’s budget provided by TJPC varied by county, from as little as 11 percent to as much as 97 percent. The agency funded departments through 19 separate grants, which are described in Appendix C."

TJPC's diversion grants aimed at keeping youth out of TYC received high praise for boosting reductions in commitments between 2009 and 2010:

• The 141 counties that received diversion funding reduced commitments by 32 percent.
• Counties that did not receive funding reduced commitments by 10 percent.

TJPC spent $4.3 million in 2009 on its Juvenile Case Management System, described on Grits here as "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," which will roll out next spring. State Rep. Lois Kolkhorst got to the heart of the issue surrounding this database when she asked, "Who owns the record?" Hint: It ain't the kid, or their parents.

TJPC is already doing its first extensive, long-term evaluations of local probation programs, which I think is wise even if it renders no short-term benefit. "TJPC has begun a major data collection effort with the recent creation of a program registry. This registry will list all programs offered by local probation departments and allow comparisons between programs to evaluate program success. While TJPC has increased data collection efforts, it will likely be several years before enough data is available for meaningful analysis." That's fine with me; it's not like we're not going to need better data in several years.

At TYC, staffing remains a concern, particularly for positions requiring specialized skills:

One of the Youth Commission’s greatest staffing challenges has been high turnover rates, especially for positions providing direct care to youth. The agency’s overall turnover rate has dropped from 41 percent in fiscal year 2007 to 25 percent in fiscal year 2010. However, hiring the specialized treatment and education professionals TYC youth need remains challenging, especially at the Al Price State Juvenile Correctional Facility in Beaumont, the Corsicana Residential Treatment Center, the Crockett State School, and Evins Regional Juvenile Center in Edinburg. The Youth Commission reports that key substance abuse treatment positions at Al Price have been vacant for months, or more than a year in at least one case. Likewise, senior-level mental health positions at Evins were recently vacant for a significant period. Corsicana, which serves the youth with the most severe mental health needs, currently has five mental health provider vacancies, including the most senior position.

Injuries to TYC staff remain a problem, whether as a result of understaffing or a lack of experienced and/or adequately trained staff: "In fiscal year 2010, TYC staff were injured at a rate more than double that of the next highest agency providing 24-hour care, the Texas Department of Aging and Disability Services, and four times the rate of the Texas Department of Criminal Justice (TDCJ)."

TYC has been shifting its treatment resources, as evidenced by a chart at the top of page 17. Fewer youth with identified chemical dependency needs are getting treatment, however nearly all youth identified with mental health needs receive treatment services. As a result, success rates for chemical dependency treatment have gone up while success rates for mental health treatment declined precipitously. Appendix B gives more unit-by-unit detail on "the number of TYC youth served in high- and moderate-intensity treatment programs in fiscal years 2009 and 2010."

Sunset recommends continuing the two agencies, for an annual total cost of $402.5 million at current funding levels, but with another Sunset review in just six years instead of the usual twelve, presumably to give recent reforms time to gel and for data to become available to measure problems or improvements.

Notably missing in the Sunset report were any issues raised by advocacy groups over the summer regarding TYC, with staff sticking tightly to their legislative charge from 2009.

Takeaway: TYC's base cost per youth remain high, ironically getting higher whenever TJPC and local probation departments succeed in diverting youth from state prisons. To cut costs long-term likely would require eliminating  facilities to reduce overhead, something I wouldn't be surprised to see happen next spring. Criticisms of TJPC in the Sunset report weren't nearly as poignant as those of its sister agency and they probably feel pretty good about the result.

Harris judges reduce number of needlessly jailed drug probationers

Giving credit where it's due, it appears judges in Harris County (Houston) have begun changing their collective sentencing practices regarding first offense less-than-a-gram drug cases, going by their Nov. 1 jail population data reported (pdf) to the Texas Commission on Jail Standards.

Why do I say that? Here's the backstory: In 2003, the GOP took over the Texas Legislature for the first time since Reconstruction and Speaker Tom Craddick appointed Ray Allen (since retired) to chair the House Corrections Committee. The state faced a severe budget crisis (though not as severe as today), so Allen filed HB 2668 to reduce penalties for less-than-a-gram drug cases from a state jail felony to a Class A misdemeanor, a suggestion I've advocated here on Grits more than once. The legislative process, however, is designed to force compromise. In the end, the bill kept the state-jail felony level but mandated probation for less-than-a-gram cases on the first offense, a move that diverted about 4,000 low-level offenders per year from Texas state jails.

In Harris County, though, then-District Attorney Chuck Rosenthal had opposed the legislation and his office successfully pushed for judges to exercise their discretion to require incarceration in the county jail up to six months as a condition of felony probation, which most Harris County judges began to do routinely, and to my knowledge, uniquely. This caused the jail to swell with probationers who a) previously would have been incarcerated by the state and b) could have been released. I've been grumpy about this for seven years since the bill's implementation. A lot of people worked hard to pass that legislation, and the effort to reduce prison overcrowding was never intended to increase local jail overcrowding. That was the choice of local elected officials.

In any event, whether new DA Pat Lykos has quit asking for the extra jail time as frequently or judges have smartened up and started refusing it, I cannot say, but as of Nov. 1 there were just 350 inmates in the Harris County jail who'd been convicted of state jail felonies and were serving time as a condition of probation. This time last year, Harris County had 1,181 such inmates in the jail, which means we've witnessed a 70.4% decrease in that category of prisoner in a single year. That takes a lot of needless pressure off the jail at the margins and I'm quite glad to see it. My hunch from these data is that several specific judges have changed their practices and a few holdouts account for that remaining 30%. I'd love to see judge-by-judge data to know which courts are still needlessly sending these probationers to jail and which have stopped.

Combined with the DA's decision to prosecute crack paraphernalia under the paraphernalia laws like all other large jurisdictions instead of as state jail felony drug possession - another Rosenthal-era policy which required sending pipes to overworked (and scandal-ridden) labs to document trace residue - it's easy to see why the Harris jail population has experienced a welcome, though not-yet sufficient decline in the last year. The folks who make decisions that created the overcrowding crisis have begun, ever so haltingly, to ease their foot off the collective pedal. There's still much more they can do.

Increased Harris County Jail costs, inmate numbers third highest in nation over last decade

The blog Hair Balls from the Houston Press says that "In an era when locking fewer people up and spending less on jails seems to make sense and is rapidly becoming en vogue, Harris County was increasing its spending and putting more folks behind bars than nearly any other populous county in the country, according to a recent study by the Pew Charitable Trust."

Pew says Harris County's jail expenditures increased by a greater percentage than all but two metropolitan jails in the country: Philadelphia, PA, which has its own longstanding issues, and Maricopa County (Phoenix), where Sheriff Joe Arpaio's shenanigans drove up costs 106% from 1999 - 2009, compared to 34% in Houston. New York City's jail costs declined by 5% over the same period.

Harris County also ranked third highest in jail population growth over the same period, with inmate numbers growing 46% compared to 49% in Philadelphia and Pittsburgh. By comparison, New York City reduced its average jail population by 24%, and Atlanta's declined by 20%. So some jurisdictions have found a way to reverse the one-way ratchet that continues to increase incarceration levels even when crime is declining.

Hair Balls notes that "Alan Bernstein, a spokesman for Harris County Sheriff Adrian Garcia, says the stats in the study are correct but draws attention to the period covered, which is almost entirely before Garcia's term began. Since then, he notes, jail population and jail spending has decreased." The truth is, though, how many people get sent to the jail and when they get out are largely factors beyond the Sheriff's control.

Here's a link (pdf) to Pew's study, "Local Jails: Working to Reduce Populations and Cost," findings from which may not surprise long-time Grits readers:

What lies behind the rising and falling number of inmates in jails? The number of arrests is one factor. But in many places, the size of the jail population is determined largely by a series of policies and procedures that answer the following questions:

• Who should be detained prior to trial, and who should be allowed to remain in the community while his or her case proceeds?
• How long does it take to try a case?
• Are other sanctions besides jail time used to punish those who break the rules governing their probation or parole?
• Which convicted inmates serve out their sentences in the local jail and which are sent to state prisons?

I've been singing this song for years in posts titled things like "Needless pretrial detention main cause of Harris jail overcrowding," and consultants have been pointing out the same problems in Houston for the last half decade. Indeed, in many Texas counties the rates of pretrial detention are even higher.

Concludes the report: “The stakes for these reforms are high. 'You could drop [the jail population] by 10, and if it’s the wrong 10, the city is going to be more dangerous,' says Philadelphia Police Commissioner Charles H. Ramsey. 'You could also probably drop the population by 1,000 without impacting public safety—but what matters is who those 1,000 people are and what we’re doing with them.'”

RELATED: Earlier this week, the House County Affairs Committee met to discuss their Interim Charge (#3) to "Study county oversight related to pretrial release on bond in criminal cases." You can watch the hearing online here - the portion about pretrial detention begins about 3:34:14 - but the audio keeps going in and out on my computer. There should be something on pretrial detention in the committee's interim report, however.

See related Grits posts:

• Reduce pretrial detention to stave off overcrowding
• Elected Officials Guide to Jail Population Management
• Judges have tools to reduce Harris jail overcrowding if they'll use them
• Shipping inmates to other counties won't lower Harris jail population, just scatter it
• Counties that rejected new jails must now get serious about diversion
• Pretrial detention, unnecessary incarceration driving Texas jail overcrowding
• Bail blunders boost bulging Harris jail population
• Extra bail conditions: When tough on crime means tough on taxpayers
• Should county government subsidize bail bond companies?
• Lack of counsel, information are bail barriers
• Harris County detains low-risk offenders for no reason
• Homegrown Harris Jail Jam: Jailed probationers swell inmate numbers
• Proposed mental health wing at Harris jail raises question of treatment priorities