Monday, February 28, 2011

Bill filed to merge juvenile justice agencies

Reports the Statesman's Mike Ward:
A House bill filed this afternoon would abolish the Texas Youth Commission and the Texas Juvenile Probation Commission and create a new agency to oversee most of the state’s youth corrections programs.

House Bill 1915 is the first merger bill filed this legislative session after such a move was recommended earlier by the Sunset Advisory Commission, as a way to streamline and improve juvenile justice in the state.

Supporters of the two agencies had earlier voiced hopes for a legislative compromise that could have allowed the two agencies to remain separate, although the filing appears to cast doubt on that plan, since the author and other House leaders have indicated they now support a merger.

Under the measure by House Corrections Committee Chairman Jerry Madden, R-Richardson, the two agencies would be merged into a new Juvenile Justice Department that would oversee programs from probation to incarceration.
Here's a link to bill text and other information.

I know a lot of folks have assumed that a "merger" would mean that TYC is essentially placed under the Juvenile Probation Commission, but this bill abolishes both governing structures and creates a completely new entity, new board, etc.. Of course, that could still be the net effect depending on who's appointed to the new board and Juvenile Justice Department leadership positions, but those may have been premature assumptions. The lengthy bill makes a lot of changes that I certainly haven't digested yet, and anyone interested in juvenile justice policy at any level will want to give it a read. If you do, be sure to let us know of any red flags you notice in the comments.

Save counties money by reducing low-level pot offenses?

At tomorrow's House Criminal Jurisprudence Committee meeting, (see their agenda), one bill jumps out at me that would provide tremendous relief to local county jails and an influx of revenue to municipal and county coffers from increased fine revenue:  HB548 (Dutton) Reducing penalties for less than an ounce of marijuana. Grits pontificated on the immense benefits to county government from such legislation last fall in a post titled, "On the benefits to county budgets, local police coverage from reducing pot penalties." Since as of 2009, 57.9% of all drug arrest in Texas were for pot, most for low-level amounts, making many of those cases Class C misdemeanors would a) significantly reduce intake volume at local jails and b) generate fine revenue instead of cost counties money for jail, court-appointed counsel., etc.. Most Class B pot cases end up on probation, anyway, and with misdemeanor probation funds eliminated in the House and Senate budgets, arguably it's pointless to bother supervising pot smokers when it diverts scarce CSCD resources from supervising misdemeanor DWI offenders, family violence defendants, etc..

From a fiscal perspective, Dutton's bill makes loads of sense. In 2005 under leadership of then-Chairman Terry Keel, this same committee approved a similar bill unanimously, with several Republicans including Keel and Rep. Debbie Riddle voting for the measure, but then Speaker Craddick didn't want the bill to go to a floor vote, ostensibly to "protect" the members from voters like this guy. (This year, the budget crisis is so severe that, if the bill gets that far, the new Speaker IMO should blow past such concerns and let members vote. There will be so many unfunded mandates, particularly for county jails, that the Lege should at least do something that provides counties explicit relief. But that's getting ahead of ourselves.) There's no telling how this committee - most of whom are new to the issues and many of whom are new to the Lege - will vote on Dutton's bill, but it'd be something they could easily tout back home as reducing the burden on county budgets.

IMO fears of voter backlash at such a vote are overblown. It didn't harm Debbie Riddle or others who voted for Dutton's bill in 2005. And notably, a larger proportion of Texas voters supported outright legalization of marijuana than support any single budget cut presented to them in a recent UT/Texas Tribune poll. Objections to the bill over the years have become increasingly rare (in 2005 when it passed out of committee, no one registered against it). Maybe with the budget crisis being what it is, this will be the year the legislation will find its legs. Stranger things have happened.

'Prison budget cuts must not lead to more prisoners'

An editorial in the Beaumont Enterprise with the same title as this post IMO makes exactly the right point about the Texas Department of Criminal Justice's finalized cuts for the current fiscal year. They're okay with cuts to the food budget, but:
We're not so enthusiastic about additional plans to cut 555 non-guard positions in the state prison system.

Many of those employees are charged with making sure that prisoners don't come back once they are released.

For example, 155 jobs would be cut from Project RIO, which stands for Re-Integration of Offenders. Those employees help inmates make the transition from the tightly controlled world of a prison to the vast challenges and temptations of the outside.

And even though no parole officers will be cut, some of their support staff will. That is going to make it harder for parole officers to do their difficult jobs effectively.

Many prison inmates have poor education or social skills. They often abuse drugs or alcohol, or they may have mental health issues.

If they are simply dumped back into society when their sentences are up without sufficient preparation or oversight, they clearly stand a bigger chance of reoffending and returning to prison.

The Texas prison system was hardly overfunded to begin with. State officials have to be very careful that the immediate savings of these budget cuts don't end up costing Texans far more in the long run.
That's a great point. Though it's good legislators didn't let TDCJ cut more deeply into treatment programming, budgets are an expression of priorities and the priorities expressed in this first round of cuts prioritizes keeping the maximum number of prisons open instead of focusing on reentry and community supervision.

These cuts are just a taste of what's coming. TDCJ has only agreed to close one unit - the Central Unit in Sugar Land, where local developers are salivating to turn the property into a private business park - but otherwise has said it would slash probation, treatment, parole and reentry funding and dangerously reduce its guard-to-inmate ratio before considering closing another one.

Unless legislators propose policy solutions to reduce mass incarceration - and there are a few already out there which Grits will be discussing soon, though not on the scale needed to solve the problem - there's a limit to how many beds the Lege can require TDCJ to cut. If those discussions are occurring, and I'm sure they are, they're not happening yet publicly. At this point in the session, there's little time left for dawdling before TDCJ's regressive priorities become the only option on the table, at the expense of Texas' much-lauded 2007 probation reforms which have drawn national approbation and mimicry.

There is probably political will to cut more deeply into prisons. After all, both the Governor and the filed version of HB 1 would cut nearly $800 million from TDCJ's budget. What's missing is a plan from any key legislative leader so far to counter the agency's Maximum Prisons approach. Texas legislative sessions are short and we're a third of the way through this one. If the only plan on the table for budget reduction says "cut reentry and community supervision first," when push comes to shove that's what'll be implemented. That implies that soon it'll be time for Mssrs Whitmire and Madden, Chairmen of the Senate Criminal Justice and House Corrections Committees, respectively, to reach into their hats looking for rabbits to pull out that let them cut the agency budget but save the diversion programs they've worked so hard to create. Otherwise, the misplaced priorities lamented by the Beaumont Enterprise will be enacted writ large when the much deeper cuts that are surely coming get implemented come September 1, 2011.

RELATED: Six Impossible Things: Do you believe in a conservative, rational and smaller corrections budget?

Sunday, February 27, 2011

Questioning John Bradley: Forensic Science Commissioners up in Senate Nominations Monday


Governor Rick Perry's appointees to the Texas Forensic Science Commission are up in the Senate Nominations Committee tomorrow. Senators should use the forum to force Commission Chairman John Bradley to answer all the questions he's dodged in the past - especially about the ways in which he's delayed or shut down all the Commission's activities after his appointment in 2009. The other commissioners who are up IMO have done a good job; even if I haven't always agreed with them on every jot and tittle, I've never once thought they were acting in bad faith. That hasn't always been true of the chair.

There are lots of unanswered questions for the committee to ask Mr. Bradley. He only talks to friendly media and limits his comments to tightly constructed political barbs instead of honest answers to legitimate questions, so there's a lot of untrod ground to cover. The Dallas News published a list of written questions he repeatedly refused to answer, for example, on the grounds that they sounded like they came from a "New York lawyer." I supplied satirical responses on Bradley's behalf.

They could also check with members of the House Public Safety Committee, who asked Bradley to appear to answer questions but were snubbed with a no-show. There are plenty of unanswered questions out there if they start looking, and the nominations process would be a good place, finally, to get responses.

Regular readers will recall Bradley's first official act as chairman was to unilaterally shut down a long-scheduled hearing to evaluate arson science used in the Todd Willingham and Ernest Willis cases, a move which was widely interpreted as an effort by Bradley and the Governor to improperly delay an inquiry into faulty forensics used to justify putting Mr. Willingham to death until after the November 2010 elections. After Bradley made the rounds in the media calling Willingham a "guilty monster,"  he was scolded by other commissioners at an FSC meeting, where "six of the seven other commission members present at the meeting voiced disapproval or discomfort" with Bradley's statements. (When commissioners finally heard the expert testimony earlier this year, it was brutally damning.)

Having shut down not just commission investigations but a series of planned educational events, Bradley proceeded to railroad through a set of policies and rules at the next commission meeting, leaving all pending business off their agenda and giving commissioners only a single day after receiving a draft to vote on them. After wasting a full meeting securing votes for these policies, he pointed out that the AG advised the FSC has no rulemaking authority and that the rules and policies they'd just approved were only nonbinding guidelines that did not in any way restrain the commission. So in effect, Mr. Bradley stopped all the agency's productive activities to waste time debating and voting on policies he knew the agency had no authority to enact. In a post evaluating the Chairman's performance at that meeting, Grits accused Bradley of "Usurping power from commissioners," "Hijacking the meeting agenda," "Concealing key activities from commissioners," Wasting commissioners time," "Ignoring 'process'," and "Dissembling." I doubt any neutral observer who watched his bullying performance would disagree.

The only case the Commission has voted to accept since Mr. Bradley came onboard involved allegations against the Austin PD crime lab that several outside entities have already looked into and determined to be unfounded. I attended the screening committee meeting involving the case, where Dr. Nizam Peerwani, a medical examiner from Fort Worth who will also face the Nominating committee tomorrow, strongly argued that the case had no merit and the FSC shouldn't waste its time. But, as Grits then reported, "Bradley said the Commission needn't only be the bearer of 'bad news,' and that it would be worthwhile to 'deliver a positive message' to accredited labs that affirmed the value of their work." He also made a very legalistic argument: That the screening committee should only determine whether the elements of the complaint met the minimal threshold for consideration by the committee, but insisted they should not evaluate the merits. Peerwani's opinion that the complaint was meritless, said Bradley, was appropriate for discussion with the full board, but shouldn't be a consideration at the level of the Complaint Screening Committee (one of several committees created under the chairman's above-described policies and rules). Peerwani demurred, declaring his intention to recommend against investigating the case, and gave an "Aye" vote to allow consideration by the full Commisssion.

At the meeting where the FSC took up the case, though, Dr. Peerwani could not attend because he was required to testify in court back in Fort Worth. Bradlley promoted taking up the Austin case for the same reasons suggested at the Complaint Screening Committee, sending a positive message, etc., but did not tell his fellow commissioners about Dr. Peerwani's objections! As Grits reported, "Peerwani's rather strong objections to spending resources on the Austin case weren't voiced in absentia when it was discussed on Friday. Instead, his Aye vote at the screening committee was portrayed as an endorsement that the FSC investigate, which was the opposite of my impression from my memory and notes. Be that as it may, the case has been delegated to an investigative committee whose first meeting date has not been announced." I think the committee should ask Dr. Peerwani about his opinions on the Austin case and then compare it to the record from the January FSC meeting where Bradley laid out the Screening Committee's recommendation. (If they need it, the national Innocence Project recorded video of the meetings.). The episode was an example in microcosm of how the chairman has run the committee: Saying whatever he needs to to get his way, even to the point of transparently misrepresenting facts or the opinions of others.

Besides questioning Bradley on efforts to deflect and distract the Commissioners from productive consideration of forensics (their mission), his politicized budget and hiring decisions deserve close review. Bradley has insisted on pushing through the creation of a General Counsel position from the Commission's limited budget, despite the fact that the Attorney General was already providing those services for free. The problem: The AG was giving advice that would allow investigations to go forward that Bradley wanted to shut down. The AG lawyer advising the FSC has always said they have authority to investigate cases like Willingham, Brandon Moon, and others dating from before when accreditation was required, but Bradley has requested a formal AG opinion seeking to overrule that advice. That's the context in which I view the creation of this unneeded General Counsel slot at the FSC: The chairman seems to be shopping for a lawyer who will give him the advice he wants for political reasons instead of a legal interpretation that's correct, and if he can't get that from an AG lawyer he'll seek to replace her with an attorney who reports directly to him. Plus, the tactic has the added benefit of bleeding scarce funds available for investigations, which he clearly wants to stymie, anyway.

Otherwise, hiring an attorney as the main staffer at the FSC would be an odd choice since a lawyer gives the commission no expertise at its main task of evaluating forensics and the salary diverts money that otherwise would have been used for functions that get more directly at the Commission's core mission. The General Counsel slot was created in January using monies that remain unspent mostly because the chairman shut down all the FSC educational events and investigations during calendar year 2010. But there's no money in their budget for the position, and in fact both HB 1 and SB 1 - the House and Senate budgets - would reduce the FSC's budget by roughly the amount of the new General Counsel's salary. Leaving ideology aside, that's just poor management.

Finally, there's the chairman's assiduous penchant for secrecy, violating the open meetings act at his first meeting as chair and seeking to close FSC deliberations and records to the public at every possible turn, a tactic which was rebuffed by his fellow commissioners.

Speaking of whom, I think the other commissioners should be asked their opinion of Mr. Bradley's performance, his proposals for conducting business in secret, his insistence on revisiting past AG advice and commission decisions on jurisdiction, the propriety of conclusory statements on the Willingham case, etc.. Perhaps most importantly: Ask Bradley's fellow FSC commissioners if they should be allowed to select their own chair from among their number instead of having the Governor pick? I guarantee the FSC would run a lot less contentiously and get a lot more accomplished if the majority on the commission were allowed to select their own chair. Bradley's shenanigans have alienated just about everybody who's witnessed them.

UPDATE (2/28): The Houston Chronicle editorialized today that the Senate should reject John Bradley's nomination. They say the Williamson County DA has "obstructed real debate and instead proceeded to perpetuate the governor's political agenda. He has delayed hearings unnecessarily. He has shown disdain for members of the commission and witnesses. He has proven himself to be an enemy of science, refusing to ask that arson be subject to state-of-the-art scientific analysis." They conclude, "We believe John Bradley has shown himself unwilling to engage in true scientific inquiry. He does not merit reappointment and the Senate should reject him." The Chronicle's Peggy Fikac reports that, though he's not on the committee, state Sen. Rodney Ellis plans to participate in the questioning.

MORE: Kuff chimes in.

FROM THE HEARING (2/28): Bradley feels free to just openly insult Sen. Ellis, accusing him of a conflict of interest because he chairs the national Innocence Project. Ellis retorted that if that was the case, Bradley had a similar bias as a hyper-aggressive, know-it-all prosecutor. Bradley's comments were laced with sneers and insults aimed at Ellis about "your bias," causing Chairman Deuell to bang his gavel and insist on civility. I'm not sure he's doing his nomination chances any favors with this performance. The senate is a small club and they don't take kindly to their members being openly disrespected.

Sen. Jose Rodriguez also raised serious concerns, particularly regarding the appearance of bias from Bradley's public statements. Rodriguez also asked about whether the TFSC should hold its subcommittee meetings in public, but he appeared not to know that Bradley's fellow commissioners explicitly overruled the chairman and insisted those committee meetings be open. In December, Grits attended the very first public meeting of the Complaints Screening Committee, which under Mr. Bradley's original rules previously had been closed to the public. MORE: Sen. Ellis got Bradley to clarify that the meetings were previously closed and that the change to make them public was recent.

Here's a fun exchange:
Bradley to Sen. Ellis: "You watch my back, I'll watch yours."
Ellis (to much laughter): "I'm glad I've got my bulletproof suit on."
Public testimony was pretty darn good, including exoneree Anthony Robinson and Bill Allison from UT's innocence clinic, the latter particularly critical of JB's chairmanship on the FSC. Regrettably, though, the video kept going out during the final twenty minutes or so of the hearing (I was watching online), so it was difficult to take down details from what was said. 

All the other nominations on today's agenda were approved unanimously but Bradley's, and the Committee had to wait for Sen. Jane Nelson to come back to approve his, a sure sign the vote was particularly close. When Sen. Nelson returned, Bradley's nomination was approved on a 4-2 party line vote.

Video of this morning's hearing has been posted here (click on "February 28, 2011); the FSC portion began roughly fifteen minutes in.

AND MORE: See initial coverage of the hearing from the SA Express-News' Texas Politics Blog, the Austin Statesman, the Texas Observer, and the Lone Star Report. Statesman columnist Ken Herman has additional commentary and video highlights.

Saturday, February 26, 2011

Making the same old mistakes on asset forfeiture: Profit motive has no place in law enforcement strategy

Back during the fight to shut down Texas' network of Tulia-style drug task forces, one of the key revelations that discredited those now-defunct pseudo-agencies, and which prompted a new rule at the Department of Public Safety narcotics division, was that many were focusing their traffic interdiction efforts almost exclusively on southbound lanes, ignoring drugs going north in hopes of snagging more cash, of which they'd get to keep a portion under asset forfeiture laws.

At the time that tactic was seen as discrediting the task forces, and DPS created a rule requiring task forces to spend equal time in the north and southbound lanes, a stipulation that caused many of them not to accept DPS supervision and ultimately led to Governor Perry's decision to de-fund the lot of them, shifting federal grants that used to pay for them to other priorities from drug courts to border security.

Now, though, pretty much that exact same strategy is being suggested as a statewide revenue generating scheme. The Statesman's Mike Ward reported ("Senators, DPS eye millions in seized drug money," Feb. 22):
DPS Director Steve McCraw had just testified that federal officials now estimate that as much as $28 billion a year in cash goes from the United States across the border into Mexico.

Two-thirds of that goes through Texas, he estimated.

"That's the Medicaid budget," Ogden responded after hearing the $28 billion figure.

Since 2006, McCraw said, $140 million in drug cash has been seized along the Texas border, most from trucks and other vehicles headed into Mexico.

With additional officers and checkpoints to examine Mexico-bound vehicles, he said, Texas seizures could increase by as much as 12 percent.

Currently, a percentage of the seized money goes to prosecutors, and McCraw said another percentage — perhaps all the remaining amount — goes into state coffers, depending on whether federal police agencies are involved in the bust.

But Monday's discussion was the first time that additional enforcement has been tied to its success in seizing additional cash, a connection that other states have been discussing to address their budget crises in recent months.

Ogden questioned whether, if the state earmarks additional money to target drug cash seizures, the cost might come out equal to the state's share of what was seized.

"If we're going to spend $50 million we ought to get some credit for this in the budget," he said.

He instructed representatives from the state comptroller's office to investigate how much the state might legally lay claim to in a two-year period, so it could be used in creating a budget.

Other members of the committee indicated an interest in using a share of the forfeited cash, as well — even though Sen. Dan Patrick, R-Houston , echoed other sentiments when he said the suggestion was not to put DPS "on a sales commission" by funding it based on how much drug cash it seized.
Many of the Tulia-style drug task forces had essentially become complicit with drug traffickers, driven by the same motives on display at this Senate hearing. As a matter of macro-level strategy, they de-emphasized enforcement on northbound drugs so they could take a bigger cut of the southbound cash, or as Grits once put it, "living off asset-forfeiture income from traffic interdiction like pirates living off the spoils from plundered ships." (BTW, do you know the difference between a pirate and a "privateer"?)

So instead of having a vested interest in reducing drug trafficking, the larger concern for some task forces was securing their share of the profits, which in many cases was used as local matching funds for re-upping their federal grants. (See a public policy report I wrote on drug-task force highway interdiction back in 2004.) This amounted to tacit (and occasionally explicit) complicity with the drug traffickers, and the task forces' failure to comply with DPS rules on that score was a big reason why the Governor de-funded them in 2006. But these are lessons, apparently, that Texans must learn over and over again: The aims of law enforcement become corrupted when government's priority is maximizing revenue. (Speaking of which, one of the USDOJ budget cutting strategies suggested by the Obama Administration was "Sharing less of the proceeds from property confiscated from criminals with state and local authorities.")

Ironically, on Tuesday the Senate Criminal Justice Committee will hear legislation by Chairman John Whitmire aimed at restricting the ability of local District Attorneys to manipulate their prosecutorial functions to maximize asset forfeiture income. (See related Grits posts rounded up here.) But the state is considering building southbound border checkpoints (as opposed to the northbound ones aimed at illegal immigrants and drugs) for the exact same reasons - to skew law enforcement priorities toward activities that maximize revenue instead of reduce drug trafficking. I don't see how it's much different, or more defensible, than what the drug task forces were doing.

Rigged Game: Prosecutors should shut down Austin City Council's 'walking quorum'

Slightly off topic, but my old pal Ken Martin at the Austin Bulldog has blown the lid off the reason I simply quit local work in Austin on police accountability issues or anything else: Votes at the Austin City Council are a rigged game, with special interests dictating outcomes behind the scenes and councilmembers deliberating and making decisions outside public processes that might give average citizens a chance for meaningful input. The Austin Statesman gave the Bulldog props in this story today by Tony Plohetski.

Through a series of open records requests, Martin revealed that the Austin City Council for many years - dating back, unsurprisingly, to Mayor Kirk Watson's tenure - has operated what's colloquially known as a "walking quorum," getting around the Open Meetings Act by deliberating privately in one on one or one on two sessions with the Mayor before actually meeting in public. Previously, the City Council held "work sessions" the day before council meetings where issues were discussed openly in public, but the walking quorum made that unnecessary - they just deliberated behind the scenes and showed up with their votes all decided. And it showed. Citizens might comment at the meetings, but commitments for votes had already been made and public input came to have less and less impact on council decisions. The fix was in, and you could smell councilmembers' disdain in the air for anyone who thought their contrary opinion should be considered before a decision is made.

By comparison, the Texas Legislature is literally a bastion of democracy. Why? Because they have rules on when legislation can be considered that they actually must follow or their bills get killed with a "point of order." At the Austin City Council, such rules are a joke and as you can tell by the emails (some of which are excerpted at the end of Tony's article), that councilmembers are laughing and snickering at their constituents from behind the veil of secrecy they've cast over the decisionmaking process.

This is illegal and the Mayor and Councilmembers who participated in the walking quorum should be prosecuted for violating the Open Meetings Act. I'm tired of Austin city politics being a rigged game. Travis County Attorney David Escamilla, please, put a stop to this crap. Or if he won't, Attorney General Greg Abbott should step in to do so.

Friday, February 25, 2011

Why is creating new felonies the solution to every social problem? Immigration edition

Talk about cognitive dissonance: AP reports, "Bill would make hiring illegal workers a felony," while the Texas Tribune adds, "But maids are OK."

As if for a second there's remotely enough extra space in Texas prisons or jails to create a new class of "criminal" businesses and entrepreneurs! It's absurd to even imagine. But still, this and other similarly draconian measures are being debated seriously at the same time as $584-$786 million cuts are being demanded at TDCJ. Meanwhile, urban jails are full, but other legislation would require local law enforcement to boost demand for jail beds with immigration violators. Big Government Conservatism is just as expensive as Big Government Liberalism, and with one in 22 adult Texans already in prison, jail, on probation or on parole, the Lone Star State has pretty much already maxxed out on how many people we can afford to lock up. Ask voters in my hometown in Tyler, no liberal bastion, who have turned down four county jail plans in the last several years and will now vote on a fifth proposal in May. For the most part, as the Smith County example shows, folks who don't want higher taxes don't want them for jails any more than they do for Obamacare. So where would we put all the immigration arrestees? Federal courts are backed up and can't process more cases, a situation exacerbated by the fact that border districts like the Texas Southern can't get federal judicial nominees approved in the US Senate.

If implemented as sweepingly as proponents describe, these bills would flat-out swamp the criminal justice system, in much the way that substituting incarceration for mental health treatment has put undue burden on police, jails and courts. Using the criminal justice system to "solve" social problems like immigration, substance abuse, mental illness, etc., ensures  a) the system's failure and b) that other, more on-point solutions aren't pursued. We've already got 2,383 felony crimes on the books, according to the parole board's most recent count.

I realize my position on immigration puts me in the minority. I'm just not that freaked out by immigration, consider it much more boon than bane for the economy, believe most "illegal immigrants" should have been allowed legal access in the first place, and find the notion abhorrent that a nation of immigrants and their children would grow wealthy and then seek to close the doors behind them. Let's set those disagreements aside, though, just for a moment.

Here's what I want to know: As a practical matter, Texas is already talking about reducing prison capacity, and urban jails in Harris, Dallas, Hidalgo, Cameron, and Bexar are packed to the gills. Where, physically, will those arrested and prosecuted go and how will proponents of such measures pay for it? If federal courts can't process current volumes, how will they handle all the new immigration cases local law enforcement is supposed to be bringing them? We're talking about unleashing local law enforcement on potentially millions of otherwise law abiding folk and thousands of Texas businesses who also employ plenty of actual citizens, diverting police efforts from more serious crimes. (Federal prosecutors in Texas have all but stopped pursuing white collar cases to focus on their immigration caseloads.)

Clearance rates for "burglary of a vehicle" are less than 2%, the House Criminal Jurisprudence Committee was told on Tuesday, but we're going to divert law enforcement to rounding up illegal immigrants and their employers? Arguably, the reason BOVs don't get solved more often is that law enforcement is already spread too thin, and these types of laws certainly don't help the problem.

Mass incarceration is a rich nation's game, and the bill is due. With one in 22 adult Texans already under supervision of the state criminal justice system, surely there's a limit to how much incarceration may be further used to address social problems like immigration, which historically, at least since Reconstruction, has not fallen under the purview of state courts or local law enforcement. More cops, jails and prisons cannot be the solution to every social problem, but for some reason they're almost always the only ones proposed. More than anything, perhaps it just represents a failure of imagination.

Solutions and non-solutions to police brutality in Houston and elsewhere

In Houston, police brutality incidents caught on video have spurred calls for a civilian review board (with "supboena power," of course), or perhaps a police monitor like we have here in Austin. But Paul Kennedy rightly wonders:
I don't know what the solution is. A civilian review board sounds nice - but in reality, do they really do any good? The boards tend to be made up of politically-connected folks who don't really want to go out on a limb. Even if you give the board subpoena power, what would you accomplish? Would the board be tasked with seeking out the truth - and forgoing criminal prosecution? Would the board's job be to uncover evidence and turn it over the the DA's office? Would members of the board have any idea what they were doing?
He's right. So-called "civilian oversight" accomplishes little. What's really needed is to strengthen police administrators' ability to deal with misconduct in their ranks, whereas right now in Houston and 70+ other civil service cities they're too often hamstrung, their authority over personnel too easily second guessed, and their termination decisions too often overturned. Civilian oversight can't accomplish much when the agency's own administrative oversight remains ineffective. In other words, if the chief can't fire bad cops, as a practical matter "oversight" adds nothing to the equation.

From 2000 through 2006 I was director of ACLU of Texas' Police Accountability Project, and before that was among the founders of a PAC created to push for the establishment of "civilian oversight" in Austin, a campaign that resulted in the establishment of Austin's Police Monitor office. In all the years I've worked on the issue, I've never seen nor heard of a civilian review board, anywhere, that worked as advertised, effected meaningful change or satisfied those that advocated for it. Ditto for "police monitors" like in Austin. I've come to believe they're largely a waste of time and divert activists, media, officialdom and public attention generally from issues where focused attention might produce more meaningful reform.

What would work? And since the Legislature is in session, what could the Lege do?

Transparency: Independent, aggressive press oversight, as a practical matter, is MUCH more effective than any civilian oversight mechanism I've ever heard of, anywhere.  Civil service cities like Houston have most of their disciplinary records closed unless officers are severely disciplined (more than two days suspension), and then only summary information is public. So, for example, in Dallas or El Paso, which never opted into the civil service code, reporters get a LOT more information on police misconduct than Houston or other civil service cities, and it really shows in their coverage, particularly at the Dallas News. Easily the most effective change to improve police oversight in Houston and other civil service cities, without costing the taxpayers a dime, would simply be to re-open police disciplinary files; hundreds of non-civil service cities and every Texas Sheriff operate just fine under the Public Information Act, and so would civil service cities if they were brought back under its umbrella.

Another key, too-often neglected transparency issue: Former Harris County DA Johnny Holmes and the Texas Supreme Court, abetted by the Legislature after the fact, gutted the Law Enforcement exception (Govt Code 552.108) to the Public Information Act in Holmes v. Morales. State Rep. Harold Dutton still carries a bill (see here) every session to change the standard back to what it what from the inception of the Open Records Act until that episode. This change was pivotal, casting a thick blanket of secrecy over information which had been public for decades. If we don't fix the transparency problem - both reinvigorating the law enforcement exception and re-opening disciplinary files in civil service cities - IMO all other "solutions" will founder.

Accounting for Misconduct in Promotions: Then-state Rep. Chuy Hinojosa filed a bill back in 2001 that never went anywhere but which would have required sustained misconduct to be counted against officers when considering them for promotions, see here. I've always thought that would give a lot more oomph to internal disciplinary decisions than is currently the case and potentially play a big preventive role.

Bolstering Disciplinary Decisions: The biggest problem with the civil service code regarding police misconduct at Texas police departments is that, too often, fired officers too often don't stay fired. The state could require civil service cities to have a "Uniform Disciplinary Matrix," which is a pre-set array of punishments available for different types of misconduct. This helps prevent arbitrators from overturning punishments when they comply with the disciplinary matrix, including indefinite suspensions/terminations, establishing what's a reasonable punishment as a matter of policy instead of letting the arbitrator make an arbitrary determination after the fact in each case. (See the discussion here.)

Those are all things the Legislature could do to reduce police misconduct in Houston and other civil service cities with no fiscal note, and without resorting to dysfunctional non-solutions like a civilian review board. And ironically, a GOP dominated Legislature might be just the group to do it, since the main special interest promoting secrecy are public employee unions (who thanks to the brouhaha in Wisconsin have become movement conservatives' whipping boy of the day). All those Democrats who just got ousted in the Texas House would never in a million years have stood up to the police unions to re-impose transparency, but it wouldn't surprise me if some of the Tea Party types might.

'As mental health cuts mount, psychiatric cases fill jails'

Brandi Grissom at the Texas Tribune/New York Times takes up a topic today which Grits has been harping on in a good article with the same title as this post.  Brandi has also posted an accompanying video on YouTube titled "Voices of the Mentally Ill."

See prior, related Grits coverage:

You're nobody as a writer till you've been banned from TDCJ

"What do Jon Stewart, William Shakespeare, Sojouner Truth, Juan Williams, Jenna Bush, 50 Cent, John Grisham, Noam Chomsky, Stephen King, John Updike, Kurt Vonnegut, Jack Kerouac, Gore Vidal, George Orwell, Gustave Flaubert, George Carlin, and Sister Helen Prejean have in common?," asks the Texas Civil Rights Project? "They have each written at least one book banned in Texas prisons."

The Texas Tribune reported yesterday that, TCRP "released a report ... on the list of 11,850 books banned by the Texas Department of Criminal Justice — everything from a collection of DaVinci's sketchbooks to the works of Salman Rushdie. Even some winners of the Pulitzer Prize, the National Book Award and the O. Henry Award aren't allowed." Further,
Censorship rates have increased in the last five years though the number of inmates has leveled off, said Scott Medlock, director of the organization's Prisoners' Rights Program. And while inmates can appeal a ruling by requesting a review from a TDCJ committee, Medlock said 87 percent of appeals are denied.

"If the low-level mail employees make the wrong decision, that's one thing," Medlock said. "But if you have [virtually] no opportunity to appeal, that's even more disturbing."
Congrats to TCRP on performing the tedious legwork to document this ongoing phenomenon.

Thursday, February 24, 2011

Who wants to help Anthony Graves get compensation?

Lisa Falkenberg at the Houston Chronicle wonders why Comptroller Susan Combs won't give compensation to Anthony Graves, noting that, "Texas' compensation law seems tailor-made for a guy like Graves, who was finally freed after nearly two decades behind bars including 12 years on death row, when it became clear he was innocent in the savage Somerville murders of a grandmother and five children." Falkenberg writes:
At first, I was hesitant to jump on the bandwagon of those attacking Combs' decision. She is not an attorney or a detective. If the paperwork doesn't say "innocent," it's not her job to go out and conduct her own investigation. And broadly interpreting the statute could open the floodgates for baseless compensation claims.

But, it turns out the comptroller's office has been widely inconsistent through the years in the way it has applied the versions of the compensation law, resulting in payments to some people whose cases were far less clear-cut or worthy of compensation than Graves'.

Then-Comptroller Carole Keeton Strayhorn agreed several years ago to compensate 19 out of 21 of the folks who were caught up in the infamous 1999 Tulia drug bust, even though they'd received only general pardons, not pardons based on innocence, according to their Plainview attorney, Brent Hamilton.

The group included one person who served concurrent prison sentences when his probation was revoked on an unrelated drug charge. Strayhorn went so far as to seek an opinion from Texas Attorney General Greg Abbott in 2007 on whether the man qualified for compensation. The AG said he did.

"You could have knocked me over with a feather when I heard some of those folks got paid," said Amarillo attorney Jeff Blackburn, chief counsel for Innocence Project of Texas who handled some of the Tulia cases, in which convictions were tainted by prosecutorial misconduct and the perjured testimony of a rogue undercover investigator.
Earlier, Falkenberg suggested that the reason the local judge isn't willing to overtly declare Graves "innocent" to make him eligible for compensation is that her father was the presiding judge at Graves' original trial, as well as a former law partner of Charles Sebesta, the District Attorney who tried the case.

From where I stand, this doesn't seem to be a matter of law, but of "want to." The judge in the case could do it, but that'd make Daddy look bad so she doesn't want to. Falkenberg's probably right that the Comptroller could bestow compensation if she chose to do so, but she doesn't want to, either. And my personal view is that Governor Perry has all the authority he needs to grant Graves a pardon. Over at Pardon Power, historian P.S. Ruckman wrote that Governor Perry's self-imposed bar from pardoning Graves "seems to defy all reasonable interpretation of the clear meaning of the State's Constitution - as well as common sense and basic standards of fairness and decency."

When politicians say they want to help, their sincerity can best be measured by their actions, not the earnestness of their declarations. Time will tell who, if anybody, among these various officials, who all could help Mr. Graves, really wants to do so.

See related coverage:

Wednesday, February 23, 2011

TDCJ to cut 1.3% of spending in current fiscal year

Here's a new summary (pdf) of a 1.3% budget reduction at the Texas Department of Criminal Justice scheduled to be implemented during the current fiscal year. That's $40 million, down from the $75 million reduction state leaders had previously requested for FY 2010. These cuts must occur in this year's budget, between now and August, while budget cuts contemplated in HB 1 and SB 1 would begin in September 2011 for the coming biennium.

MORE: From the SA Express News, "TDCJ cuts 550 jobs, drops Project RIO."

AND MORE: No guard layoffs this time, but parole staff at the units will be laid off, reports AP: "Mike Gross of the Texas State Employees Union on Wednesday warned that some of the cuts, workers who help inmates nearing their release dates, would impact public safety."

The cuts in admin will be particularly sigificant. According to the summary, "staffing reduction would include, but not be limited to: central administration, business and finance, information technology, human resources, general counsel, internal audit, regional operations, parole support, health services, and other divisional/support staff. With a managed hiring freeze that has been in effect since February 2010, a portion of these staffing reductions will be vacant positions. The impact of this action will reduce management's effectiveness in providing: adequate correctional training, information technology resources, offender classification and records processing, contract monitoring, regional operations, parole support services, and agency oversight and support in ensuring compliance with state law and agency policy and procedures."

These cuts also reduce Intermediate Sanction Facility capacity, closing the North Texas ISF at the end of the month and reversing course on the planned opening of an ISF facility in Jones County.

'Logged and Ordered': TV court dramas and public perceptions of the justice system

If you've ever wondered why the public has a skewed view of the criminal justice system and a flawed perception that criminals have "too many rights," look no further than the portrayal of the court system in the popular media. The reality is modern criminal courts have devolved into little more than plea mills, but presentations of the process in the popular media pretend that Atticus-Finch style courtroom drama is the norm instead of the rare exception. From the perspective of dramatic presentation, I understand completely. But an unintended consequence of over-reliance on that dramatic trope is to misinform the public on how the system really works.

This outstanding post from Overthinking It catalogs outcomes of cases for the first ten years of the famous Law & Order TV series, giving us this awesome chart:

So in its first ten years, the proportion of plea bargains as a percentage of L&O cases maxed out at 58.3% in the 10th year, up from a minuscule 9.1% in the show's inaugural season. By contrast, in Texas felony district courts, "Less than two percent of all criminal cases (excluding transfers and motions to revoke probation) went to trial in 2010," according to the Office of Court Administration's 2010 Annual Report on the Judiciary (pdf, p. 38-39), and "97.8 percent of convictions resulted from a guilty or nolo contendre plea."

Of course, Law & Order is overtly fictional, though we're frequently told their stories are "ripped from the headlines." Still, to the extent the public derives their understanding of the criminal justice system from such shows, clearly they're getting an especially rosy and unrealistic view.

'What does it take to reform a reformatory?'

I noticed a few stories related to juvenile justice and the Texas Youth Commission that may interest Grits readers:

From the Beaumont Enterprise:
From the Texas Tribune:
From the Dallas News:
    Also, a piece of property bequeathed to the state for use by orphans may soon be transferred from TYC to the Department of Family Protective Services under legislation by Rep. Will Hartnett, though it's a matter of some controversy, since some locals would prefer the property go to the Texas Parks and Wildlife Department.

    Ex-cop swayed jury deliberations in TYC sex abuse trial

    Puzzled by the verdict, I was hoping some reporter would do juror interviews following John Paul Hernandez's acquittal this week following the TYC sex abuse trial in Lubbock, and Betsy Blaney from AP obliges with new insight into how a former police officer swayed jurors who at first considered Hernandez guilty ("Juror: Ex-cop swayed deliberations in Texas boys' prison sex case," Feb. 23). The story opens:
    A juror in the trial of a former juvenile prison principal acquitted of sexually abusing inmates said Tuesday that a former police officer on the jury helped sway many who initially believed the ex-administrator was guilty.
    Nancy Gray told The Associated Press that the officer "did a lot of talking" about reasonable doubt to the eight who believed John Paul Hernandez was guilty when deliberations started.

    "A lot of people changed their minds because he kept saying, pressing the point, that he had to be guilty beyond a reasonable doubt," said Gray, who was the last to agree to the not guilty verdicts. "I was the holdout, all the way through. It was hard. That's why it was very emotional for me."

    Hernandez, 45, was accused of sexually abusing five inmates at the West Texas State School in Pyote in 2004 and 2005. He was found not guilty on 14 counts in 11 indictments, including sexual assault, and had faced up to 20 years in prison.

    Attempts to reach the former police officer were unsuccessful Tuesday. Several other jurors did not immediately return phone messages.

    Gray said jurors "absolutely" would have thought differently had there been physical evidence. Prosecutors presented no DNA, no fingerprints and no hair samples to back up the former inmates' stories, though the jury believed each man had testified truthfully about having been abused by Hernandez.

    Gray said deliberations grew testy at times and she unloaded her sentiments on the other jurors.
    She said she told them: "'You know this bastard is guilty' and I was bawling. These boys are going to live with this the rest of their lives. Maybe they've done some bad things, but they didn't deserve what happened to them."
    It's funny how police officers can be such sticklers for "reasonable doubt" when somebody with a badge is accused as opposed to all the cases of Texas DNA exonerees whose alibi witnesses were ignored and obvious doubt was cast aside in deference to a convict-at-any-cost mentality. I didn't sit through the testimony and have no concrete basis for second guessing the outcome, but this juror's comments make me wonder if the result could have been different if the jurors had all been average citizens and an ex-cop (with all the anti-prisoner biases that potentially entails) hadn't dominated the deliberations. Sometimes such cases are won or lost at the jury selection phase, and that may well be what happened here.

    'Cost-Saving Strategies for Texas' Criminal and Juvenile Justice Systems'

    Yesterday I received a fact-filled email from the Texas Criminal Justice Coalition addressing a variety of topics that may interest Grits readers. Here are some notable excerpts:
    Policy Solutions 
    TCJC is thrilled to announce our third policy guide, Cost-Saving Strategies for Texas' Criminal and Juvenile Justice Systems.

    This year, we have created four independent booklets that address each of TCJC's major areas of policy interest.  Click on the links below to download each part of our guide:
    • Part 1: Responsibly Reduce Incarcerated Populations to Increase Public Safety and Taxpayer Savings
    • Part 2: Provide Tools for Returning Individuals to Live Responsibly and Remain Law-Abiding 
    • Part 3Strengthen Indigent Defense Systems and Improve Court and Conviction Practices 
    • Part 4Protect Youth and Communities by Implementing Responsible Juvenile Justice Strategies Throughout Texas
    Each of these parts offers comprehensive, cost-efficient strategies that the state and counties can employ to address Texas' immediate financial deficit, as well as preserve public safety throughout our communities in the future.
     2nd Annual Indigent Defense Summit
    Improving Quality and Accountability During a Fiscal Crisis

    Join us on Tuesday, March 1, 2011, at the Texas Capitol for the 2nd Annual Indigent Defense Summit!  Scheduled panels include indigent defense priorities for the 82nd Legislative Session, advancements in Texas' private and public defender offices, smart strategies to reduce costs and increase safety, the role of indigent defense in addressing racial disparities, and the consequences of inadequate indigent defense funding.  For more information, view the full agenda here.

    This year's event is sponsored by Senator Rodney Ellis, the National Association of Criminal Defense Lawyers, the Texas Criminal Defense Lawyers Association, the Texas Court of Criminal Appeals, the American Bar Association, and the Texas Task Force on Indigent Defense.

    Click here to register to attend!  There is no registration fee and the event includes 6 hours (0 ethics) of CLE.
    Policy Center

    TCJC has also updated our Public Policy Center for the 82nd Legislative Session. 

    If you were not able to attend the following committee hearings, you will find the testimony TCJC provided on budget and innocence issues:

    House Appropriations Committee, Subcommittee on Criminal Justice Hearings:

    February 15, 2011:  Budget Articles I, VI, & V regarding the Task Force on Indigent Defense and the Office of Court Administration.  To read TCJC's testimony, click here!

    February 16, 2011:  Budget Articles I, VI, & V regarding the Texas Commission on Jail Standards.  Click here!

    February 17, 2011:  Budget Articles I, VI, & V regarding the Texas Department of Criminal Justice, the Texas Juvenile Probation Commission, and the Texas Youth Commission.  Click here!

    Senate Finance Committee Hearings:

    February 22, 2011:  Budget Article IV regarding the Task Force on Indigent Defense and the Office of Court Administration.  Read TCJC's testimony, click here!

    House Criminal Jurisprudence Hearing:

    February 22, 2011: Regarding the following bills authored by Rep. Pete Gallego:
    • HB 215 - Relating to photograph and live lineup identification procedures in criminal cases.  To read TCJC's testimony, click  here!
    • HB 219 - Relating to the electronic recording and admissibility of certain custodial interrogations. Click here!
    • HB 220 - Relating to procedures for applications for writs of habeas corpus based on relevant scientific evidence. Click here!
    In coming weeks, we will continue to update the Public Policy Center with bill analyses, House and Senate Committee reports, and related policy documents.

    You will also find our fact sheet on re-thinking criminal enhancements.
    Click here to visit our Public Policy Center!

    Tuesday, February 22, 2011

    Previewing innocence legislation in House Criminal Jurisprudence today

    Before I head up to the capitol this morning for the House Criminal Jurisprudence hearing on Chairman Pete Gallego's innocence legislation - including bills addressing eyewitness identification, recording interrogations in violent crimes, and allowing habeas relief when improvements in science might prove innocence - I thought I'd link to preview coverage from KXAN-TV in Austin (short ad at the beginning):

    Quite a few exonerees and their family members are in town for today's hearing, and there's already some evidence of bipartisan support on the committee. See the Houston Chronicle's earlier preview of the legislation, and Grits'.

    Go here to watch a livestream broadcast of the hearing beginning at 10:30 a.m. or upon adjournment of the House.

    Eyewitness identification
    Recording interrogations
    Habeas writs

    Acquittal in second Pyote sex-abuse trial

    Former TYC administrator John Paul Hernandez was acquitted of sex-abuse charges in Lubbock, reports AP:
    A former principal of a West Texas juvenile who claimed inmates lied when they told investigators that he had sexually assaulted them in darkened classrooms, closets and storage units was acquitted Monday of all charges against him.

    Jurors deliberated for about six hours before returning the not guilty verdicts on the 11 counts against John Paul Hernandez. He had faced up to 20 years in prison on the case's most serious offenses — sexual assault and improper relationship between educator and student — which are second-degree felonies.

    Hernandez was accused of sexually abusing the young men in 2004 and 2005 at the West Texas State School in Pyote.

    "Six years I've been waiting to hear those words," Hernandez said. "I've already served a six-year punishment and finally a weight has been lifted."

    All of Hernandez's accusers testified against him, telling jurors that Hernandez talked to them about pornography and fetishes before fondling them and performing oral sex.

    Hernandez took the stand in his own defense and denied their allegations, saying the young men lied in their statements to Texas Rangers investigators. Hernandez's attorney, Albert G. Valadez, has said the former inmates made up the allegations so they'd be released from the facility, which closed last summer.

    A former corrections officer at the prison testified for the defense that she heard two inmates — one of them an accuser in the case — talking about fabricating allegations of sexual abuse so they could go home.

    Hernandez was the second former administrator at the prison to be prosecuted. Ray Edward Brookins, the former assistant superintendent at the Texas Youth Commission facility, was sentenced last April to 10 years in prison.
    More from NPR. It's hard to know what to make of this news given all that's occurred in the wake of the original allegations against Brookins and Hernandez. After all, lots of people have lost their jobs as a result, both immediately thereafter and via the continued downsizing of the agency. And the state has charted a new policy path on juvenile justice in the wake of, and largely because of, the allegations against Brookins and Hernandez that are way too far down the road to think about retracting. So beyond those immediately affected, mostly this verdict will allow everyone to confirm their own prejudices about the agency and its past, whatever their view: Those who think the agency was troubled and its downsizing justified and necessary will point to Brookins' conviction. Those who think the agency endured a witch hunt, that dozens of people were fired unfairly, and that claims of dysfunction and corruption were overblown (and there are still quite a few in the agency's front-line ranks), may now point to Hernandez's acquittal to bolster their arguments.

    For my part, I think both can be true, and both analyses have merit: When legislators began to peel back the onion at TYC - and I had a front-row seat for much of that process - there was a lot to be concerned about. IMO the shift toward de-incarceration - reducing the number of inmates in youth prisons and doling out grants to counties to manage them on their end - was totally justified and overall has worked out well. (Indeed, I believe it's the best model for reducing the size of the adult penal system..) Some of the problems discovered with education, treatment, overmedication, use of isolation, lack of oversight of private contractors, etc., were egregious, including quite a few things that had nothing to do with staff-on-youth sexual abuse. But I also think the purge of TYC staff who had nothing to do with abuse allegations - sometimes based on petty, years-old criminal convictions the agency knew about when they hired them - was wrong and unfair. And the first round of administrators brought in from the adult prison system were a full-blown catastrophe for the agency from which it's arguably still recovering.

    Given the radical changes already implemented at TYC and the fluid political environment (the agency may soon be abolished and merged with the Juvenile Probation Commission), only History, with the clarity of 20/20 hindsight will be able to judge the result. Until then, this verdict closes one unhappy chapter in the story of Texas juvenile justice, further thickening an already dense and convoluted plot. A few more chapters remain to be written, though, before it's possible to tell if the tale will turn out a tragedy or have some kind of unlikely happy ending.

    Monday, February 21, 2011

    What's the one thing Leo Berman and John Whitimre agree on? Abolish the Driver Responsibility surcharge

    Okay, there may be more than one (if you include stuff like compass directions), but the headline refers to the fact that both state Sen. John Whitmire and state Rep. Leo Berman have filed bills this session to abolish Texas' Driver Responsibility Surcharge. Whitmire's bill is SB 624, while Grits discussed Berman's HB 299 here. Chairman Whitmire, a conservative Democrat (to the extent such rare beasts still exist) runs the Criminal Justice Committee and is the "Dean of the Senate," its longest serving member. Berman is a Tea Party darling (and my hometown, rep, fwiw) perhaps best known for legislation clamping down Arizona-style on illegal immigration. It'd be hard to find a better example of the adage, "politics makes strange bedfellows," but what this tells me is that, as a government program, the Driver Responsibility surcharge is an equal-opportunity public-policy catastrophe, with observers from every ideological stripe agreeing it should be abolished or radically scaled back. The main source of hesitation will be discontinuing the revenue stream (which has never lived up to expectations) but the program seems to gain new critics with every new election cycle.

    Predictable as Bluebonnets in Spring: Biennial March of the 'Enhancements' Begins Anew

    While I'm pleased to see some key innocence-related legislation up in tomorrow's House Criminal Jurisprudence Committee, I'm dismayed if unsurprised to see several so-called, Orwellian-termed "enhancement" bills (i.e., legislation creating new crimes or penalties, and/or increasing existing ones) also made the cut for the committee's first substantive hearing. (Last session, at least 40% of bills assigned to that committee increased criminal penalties, and the parole board counted 59 new felonies created by the 81st Legislature, bringing the total to 2,383.) Dozens more new crimes and penalty hikes have been proposed this session as well. Indeed, there will be too many over the course of the session for me to do this every week, but just por ejemplo, here are summaries of the three enhancement bills the committee will consider tomorrow:

    HB 99 by Trey Martinez-Fischer would increase the penalty for DWI from a Class B to a Class A if the driver's blood alcohol content is above .16 or they're operating a commercial vehicle. There's no fiscal note on this yet, but it would boost costs for counties as well as move drunk drivers up the penalty escalation ladder more quickly, getting drivers a felony on the second offense if one of them exceeds this threshold. In a rational world I'd expect this bill to die because the state can't afford ever-stiffer criminal penalties as the only way it deals with social problems like drunk driving, but since the Legislative Budget Board is likely to say the cost is "insignificant" (a politically convenient lie that provides cover for legislators but doesn't mitigate costs to counties and the state), this is the sort of thing that historically has been easy to pass through the Criminal Jurisprudence Committee.

    HB 221 by Allen Fletcher would increase the penalty for burglary of a vehicle - a crime that ranges from lifting a CD off the seat of an open convertible to smashing a window to steal Christmas presents in the mall parking lot - to a state jail felony from a Class A misdemeanor on the first offense. The bill's only saving grace is a requirement that the judge place the defendant on community supervision on the first offense if they're under 21, but that will still result in hundreds of new state jail inmates. Like HB 99, there's no fiscal note published yet for HB 221, but if it were to add, say, 600 new state jail felons per year to the system, at an average cost per year of $43.03 per day (as of FY 2010, from the LBB's Uniform Cost Report - pdf), the bill would cost between $20-30 million this biennium and upwards of $37 million per biennium once it rolled out. Whether LBB assigns a fiscal note to the bill, or whether they low-ball it as they have in the past, remains to be seen. But this legislation directly shifts costs from counties to the state, no matter what LBB's fiscal note says.

    HB 341 by Fletcher is another draconian enhancement bill creating a new first degree felony if a suspect hides inside a private dwelling in order to evade arrest or detention. A "detention" can be anything from arrest to stopping me on the street to ask questions (perhaps on suspicion of babysitting while white). So following that logic, consider this hypothetical scenario under the text of the bill: A cop stops me on the street to ask questions; I refuse and ask if I'm free to go. The cop says no, but I leave anyway, enter my house, and lock the front door, telling her to come back with a warrant. In that hypothetical, I have evaded "detention," so under HB 341 won't that scenario now garner a first-degree felony? And if so, does the punishment fit the crime? Under current law, the first-degree felony charge only applies if the suspect concealed themselves in a building in order to commit a "felony, theft or an assault," which makes a lot more sense (but of course is itself redundant with other applicable criminal statutes) HB 341 would dramatically expand the number of evading charges that turn into first degree felonies, the punishment for which is 5-99. After all, if someone runs on foot from the police, where are they going to go hide besides their home, or someone else's? Evading charges are plenty tough already, and these are not all the type of offenders who merit potentially decades-long prison sentences at the taxpayers' expense.

    All of these bills fall into the "can't afford it, don't need it," category, but they're the kind of thing this committee has approved by the dozens in recent years. Don't hold your breath, but the one prayer for stopping enhancement legislation from passing will be if the LBB tells the truth about the bills' cost instead of claiming they're "insignificant." Maybe then they can be stymied from the get-go, as they should be.