Thursday, March 31, 2011

Scaled-back Big Brother bill still pushes license plate readers, GPS tracking w/o warrants

Besides a brief update to a blog post from Karen Brooks at the Dallas News, Forrest Wilder at the Texas Observer seems to be the only journalist who covered yesterday afternoon's hearing in the Senate Transportation and Homeland Security on SB 9 - Chairman Tommy Williams' Big-Brotherish, prosecutor-wish list legislation couched as a border security effort - reporting that the bill became "(Somehwat) Less Big-Brotherish" over the course of the hearing. (On Monday, Grits called the legislation "Big Brother on steroids.") In particular, the idea of using checkpoints for immigration checks or nabbing asset-forfeiture income basically ran aground on the rocky shores of reality:
A long parade of witnesses, including the El Paso District Attorney and DPS Director Steve McCraw, pointed out specific ways that drivers license checkpoints can run afoul of the 4th Amendment.

"I don't think it can be the policy that we're going to use driver license checkpoints to boostrap our way into massive amounts of border searchers," said Robert Kepple, the executive director of the Texas District & County Attorneys Association.

Williams asked Kepple if he thought it would be "problematic" if a cop at a state-run checkpoint asked if someone was in the country legally.

"I think it is," said Kepple. "I'm not sure one follows the other."
That should pretty much nip that idea in the bud.

Another Big Brotherish item removed from the bill: Williams said language eliminating the requirement of an "overt act" for prosecution of conspiracy was a drafting error and wouldn't be included in the final version. It later turned out it wasn't a "drafting error" per se but a recommendation from some unnamed Texas prosecutor - just one which wasn't supported by the state association.

There's still a lot of other unpleasant stuff left in the bill, though: Particularly the expansion of license-plate readers, a topic that Wilder wrote about at length last year. Wilder did add that, "The good news for civil liberties and privacy advocates is that Williams seemed amenable to inserting a prohibition on storage of the data into Senate Bill 9." That may help a little, though it's clearly not going to satisfy the folks who showed up in Nazi regalia to give out satirical "Tyranny Awards" (see a YouTube video of an office visit) to Williams and SB 9 supporters. And while I generally disapprove whenever someone proves Godwin's Law in a public debate, it doesn't satisfy me, either.

A vendor representative testified at the hearing that license plate readers scanning thousands of plates per hour don't violate the Fourth Amendment under existing court rulings, and I'm sure that's true. However, what that tells you isn't that license-plate readers are hence automatically a good thing, but that the 222-year old Fourth Amendment never anticipated that technology might allow such sweeping government tracking of the citizenry's movements. That's why some modern courts have extrapolated  a "right to privacy" from the "penumbra" of the Fourth Amendment: It's clear the Constitution's drafters intended the public to enjoy a measure of security from government intrusion regarding personal information and property, even if technological advances have rendered antiquated language about keeping safe one's "papers and effects."

But the item in the bill I personally hate the most is authorization for law enforcement, without a warrant or other court order, to place a GPS tracking device on your car and track you wherever you go. That makes concerns about the license plate readers appear quaint! Wrote Wilder:
Another dodgy part of Williams' bill allows cops in Texas to install GPS tracking devices on people's cars without a court order. Williams said the provision is needed to help Texas law enforcement "track and combat gang activity."

Currently, under Texas law, law enforcement must get a judge to approve the use of a mobile tracking device.

Senate Bill 9 would give Texas law enforcement the same expansive authority as the FBI or DEA, who are free to install GPS devices on cars so long as it's on public property and is part of a criminal investigation.
In the latest version of the bill, Williams has set the provision to expire after two years.
"Dodgy" indeed! Here again, I don't doubt that federal courts have allowed this. The drafters of the Fourth Amendment could never have conceived that such a thing might even be possible, so how can that poor, overwhelmed, one-sentence 18th-century commandment be expected to cover every possible technological nuance in the 21st century? It can't. There are going to be government intrusions that do not technically violate the Fourth Amendment but which still breach the same personal privacy rights the Founders were aiming to protect. This is just such an instance.

Unfortunately, to extend those old protections into new areas - at least if one doesn't want courts finding new "rights" in the Constitution's "penumbra" - we must rely on legislators' good judgment and respect for personal liberty, neither of which seem to be in nearly as great supply today as in post-revolutionary America when the Fourth Amendment was penned. There's absolutely no demonstrated need for this bill so let's hope somewhere in the process, for whatever reason, it just dies.

See related Grits posts:

TDCJ secured death-house drugs under long-expired license

Though from a public-policy perspective I could care less by what method executions are carried out, one has to be impressed with the investigation that allowed death penalty opponents to make this argument, as Jordan Smith reported in the Austin Chronicle:
According to lawyers for condemned inmate Cleve Foster, the Texas Department of Criminal Justice has been illegally purchasing lethal injection drugs. According to the attorneys, Maurie Levin of UT School of Law, and Sandra Babcock of Northwestern University School of Law, the state's prison agency has been purchasing controlled substances – including drugs used for lethal injections – under the Drug Enforcement Administration registration certificate assigned to an entity that hasn't existed for nearly 30 years. "[A]s a result, we believe that TDCJ is unlawfully in possession of an unlawfully dispensing controlled substances," the lawyers wrote in a letter to U.S. Attorney General Eric Holder.

The problem, it appears, is that TDCJ has been purchasing controlled substances under a registration number assigned to the system's Huntsville Unit Hospital, which, it turns out, has been closed since 1983. TDCJ medical services are provided by the UTMB, and although the med system has "numerous DEA registration numbers, none of them is actually registered to either the Huntsville Unit," which has been purchasing the drugs, or to the address listed on the registration. "DEA Registration numbers must be renewed every three years," write the lawyers, who are representing Foster, scheduled to be executed April 5. "Assuming the DEA registration number used by TDCJ last month to purchase controlled substances was one originally issued to the Huntsville Unit Hospital, TDCJ has failed, on information and belief, to advise the DEA for the past twenty-eight years of the fact that the Huntsville Unit Hospital no longer exists," and that what actually exists at that location is a prison unit with a warden that is "purchasing and dispensing controlled substances" with a number "registered to a nonexistent entity."

Uh-oh. That doesn't sound so good. And neither does this: According to the lawyers, it appears that the drugs aren't being kept at a pharmacy or by a DEA-registered handler. "At no point is an appropriately licensed or authorized practitioner involved in the dispensing process, and at no point is a prescription written to transfer the controlled substances to a member of the execution team," the lawyers write.
Fascinating. The issue of physician participation in capital punishment is an old and vexed one; I wonder if this is happening because UTMB would not let TDCJ secure execution drugs under their pharmacy license? I can't think of another situation where a controlled substance would be authorized by non-physicians or maintained by un-registered, non-pharmacist handlers.

Even if TDCJ changes their DEA registration to an active entity, that won't resolve questions about the drugs already obtained. There are seven executions scheduled so far this year, with one set for next week; I wouldn't be surprised to see executions postponed over this.

I am not personally a death penalty abolitionist. But even I can see that the faux medicalization of capital punishment through lethal injection is mainly a public-relations ploy, allowing the state to pretend executions are somehow a medical procedure analogous to others performed by healers instead of premeditated, calculated killing. (Consider the absurdist vanity of sterilizing the injection site with alcohol before administering lethal drugs.) The firing squad, hanging, guillotine, even a single bullet to the back of the head would all work just as well. Indeed, a strong argument can be made that a firing squad or bullet to the head may be more "humane." But those methods of killing are messy and difficult to watch, while killing via lethal injection gives the practice a veneer of professionalism and decorum that makes it more acceptable to a squeamish public.

Barring torture and/or intentional prolonging of suffering, IMO the method of killing is far less important than the decision to kill itself, by whatever means. The punishment for murder is the same, after all, whether one uses a knife, gun, garrote, or pushes their victim off the top of a tall building. Similarly, I don't see why it makes much difference how the state kills people it plans to execute, which is why it doesn't seem worth it for the TDCJ to violate federal laws governing controlled substances just to keep the death-house machinery up and running.

House approves eyewitness ID reform

The Texas House yesterday approved eyewitness ID reform legislation carried by House Criminal Jurisprudence Committee Chairman Pete Gallego. Now the bill goes to the Senate, which itself has already approved similar legislation. See initial MSM coverage:
Several of the stories emphasize that the legislation has no "teeth" for enforcement purposes, which is true enough, and certainly it would be a mistake to assume this will "solve" the problem of misidentifications. But the bill does require local agencies to have written policies governing eyewitness identification procedures (88% don't have one) and a model policy promoting best practices will be developed by a law enforcement training institute at Sam Houston State.

While I'd much prefer the legislation included a jury instruction when departments don't follow their own policies, I don't see that shortcoming as completely mitigating the bill's import. The fact is, only a tiny percentage of cases ever go to trial, and fewer still are heard by a jury, so it's more important for preventing false convictions to reduce errors on the front end than to try to rectify them at trial. Once departments have policies in place and begin training on them, most lineups will tend to follow best practices simply because police departments are bureaucracies and that's how bureaucracies work. Would it be stronger if exceptions were somehow punished or following the model policy were mandatory? Sure! But the larger goal is to change police culture and practice surrounding how this important evidence is gathered, and on that front this bill takes a big first step.

Wednesday, March 30, 2011

More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges

Interesting testimony this morning on southbound checkpoints (SBs 288 and 294), an idea which was first suggested by senators on the Finance Committee as a possible revenue generator, aiming to tap into cartel profits heading south to fill their short-term budget hole.

Rob Kepple of the Texas District and County Attorneys Association told the Senate Transportation and Homeland Security Committee that, under existing Fourth Amendment jurisprudence in Texas, it's "not a viable policy" to use southbound checkpoints to "bootstrap our way" into expanded asset seizures or to check immigration status. Ouch!

The most problematic question, said Kepple is whether DPS can do its own checkpoints aimed at searching for money, guns, drugs, stolen cars, etc., as opposed to checking for drivers licenses and liability insurance? Courts look at the intent of the checkpoint, he said, and if the intent is to generate forfeiture revenue that probably won't cut it.

Under federal law, according to Kepple and other resource witnesses, after travelers pass a "point of no return" (when it's clear their intent is to leave the country), their Fourth Amendment rights are waived and authorities can search them. Beyond those points, restricted by state and federal court rulings, the Legislature has only ever authorized driver license and insurance checkpoints. Other states have also approved DWI checkpoints. But more invasive searches such as those performed at the border simply aren't allowed, according to resource witnesses (with the notable exception that Border Patrol agents have special, additional authority within 50-80 miles of the border). But outside that "point of no return," said Kepple, state law enforcement has no authority to conduct suspicion-less searches at checkpoints.

DPS already has authority to do DL/insurance checkpoints, but has never prioritized them or implemented policies to perform them, DPS chief Steve McCraw told the committee (taking some of the wind out of Chairman Williams' SB 9, scheduled to come up later in the hearing). Even if they did begin such checkpoints, said McCraw, they couldn't staff them with drug dogs, narcotics officers, etc., without violating restrictions on only using checkpoints for limited, well-defined purposes.

The District Attorney from El Paso, Jaime Esparza, said El Paso and surrounding counties have been doing DL and insurance checkpoints for years. He says DPS has even assisted local agencies in his jurisdiction at DL/insurance checkpoints, including near the bridges, but they were temporary, targeted, locally controlled, and not aimed at seizing money or guns.

A border mayor whose name I didn't catch said the provision in the bill allowing checkpoints within 250 yards of the river was unrealistic because his town and many others had major commercial centers within that zone. The "point of no return" area, by contrast, was a much more well-defined space that doesn't include people going to and from businesses, homes, etc..

Matt Simpson from the ACLUTX said the Legislature should get a chance to evaluate the proposed feasibility study before implementation in order make an informed decision, given that the scope of authority, etc., is uncertain even according to the expert testimony. That sounds to me like a terrific suggestion. Evaluate the study you're mandating before leaping into this. Simpson also suggested that the state look at the cost-benefit analysis for federal checkpoints - how much cash they receive vs. expenses, etc. - before assuming that southbound checkpoints will generate profit. Another good point.

Some of the testimony after the expert resource witnesses was pretty over the top, railing against the drug war generally instead of criticizing specific bill provisions, and about a dozen speakers in someone inevitably proved Godwin's Law. But a significant number of (very different kinds of) people showed up at 7:30 in the morning, mostly to criticize the bills.

Committee substitute language allows the feds to supervise the checkpoints, but testimony at the hearing said that was already allowed, but that the agency simply chose not to do so, understandably assigning troopers instead to cover DPS' traditional, core functions. Indeed, I'm not sure why DPS should provide staffing support for the feds: Do we really need to subsidize the feds on this when they can borrow to pay for the cost while Texas must tax?

This southbound checkpoint scheme sounds like more boondoggle than bonanza.

RELATED: More on checkpoints from Texas GOP Vote. AND MORE: From Karen Brooks at the Dallas News.

Prosecutor wanted Willie to sing as part of pot plea

I almost felt bad about cracking jokes after Willie Nelson's marijuana bust in Hudspeth County last year, but it turns out the prosecutor in the case is the biggest joke of all. Sentencing Law & Policy points to a story from Fox News declaring:
The prosecutor in Willie Nelson's marijuana possession case said the country music legend could get off with just a fine if he agrees to sing one of his songs in court, TMZ reported Monday.
Nelson, 77, was busted at a border patrol checkpoint in Sierra Blanca, Texas, en route to Austin on November 25 last year.  He was arrested but released when he posted $2,500 bond at Hudspeth County Jail.
The prosecutor in the case said he was willing to let Nelson off with a $100 fine if Nelson performed his song "Blue Eyes Smiling in the Rain" in the courtroom, TMZ said.  The prosecutor reportedly said the song would count as Nelson's community service.
If Nelson chooses not to accept the prosecutor's offer, he could face a maximum of 180 days in jail and a $2,000 fine if convicted when he appears in court, at a date yet to be decided.
The judge said that's not happening and later characterized the offer as a "joke," but Nelson deserves a mistrial and dismissal of charges over that sort of garbage. I don't often agree with SL&P commenter Bill Otis, but he was spot on when he declared, "I have no idea if the prosecution is frivolous, but I'm sure the prosecutor is." Community service, indeed!

If the prosecutor wants to haul Nelson into court more for his celebrity than his offense, indeed, apparently simply for his own enjoyment, it wouldn't surprise me if the same was true of officers who busted him in the first place. Thanks in part to wasteful border security grants, the Sheriff's department in Hudspeth County has 17 deputies who handled just 24 index crimes in 2009, the Texas Tribune reported in December, so I'm sure this was the most interesting thing to happen on their beat in many a year.

The funniest thing to me about all this is that the prosecutor got the song wrong! Willie's famous tune isn't "Blue Eyes Smiling in the Rain," but "Blue Eyes Crying in the Rain," thus completing the picture of an ignorant, star-eyed hick who was just happy to be in the same courtroom as the Red-Headed Stranger. What an embarrassment: Thanks, Mr. Prosecutor, for reinforcing every jerkwad stereotype about Texans and Texas Justice held by the rest of the country. (The story has Doug Berman at SL&P soliciting Texan jokes.)

It could have been worse, I suppose. He could have asked for "Georgia on My Behind."

Privatization of prison healthcare pushed in secret meetings

At the beginning of the session, Gov. Rick Perry tossed out the idea of privatizing prison healthcare, but after the House and Senate budgets slashed reimbursement rates to the same, low levels as the Medicaid program, in my own mind I'd set aside the possibility as a non-starter. I just didn't think anyone would want the business at those payment levels. And I was right, sort of.

Mike Ward at the Austin Statesman, though, reports that secret meetings promoted by the Governor between legislative leaders and private prison companies (with the current university health providers not in the room) have been exploring more seriously the possibility of privatizing Texas prison healthcare. House Corrections Chairman Jerry "Madden said that though vendors and their lobbyists have been pressing in recent weeks for privatization to be considered as an option," though he also added, "I don't know that there's any great move in the Legislature to see things redone."

One pitfall: Privatizing wouldn't actually save money, and in fact would cost more than legislators have said they're otherwise willing to spend. Ward obtained a copy of a "report circulating among legislative leaders  ... which appears to be a draft and has no mark of authorship" promoting the privatization option. (Regrettably, the Statesman did not post it online.) He quotes a critical provision from that document which to me seems virtually to preclude the option: "'Opportunities for the private sector to deliver certain segments of inmate healthcare may be possible if funding levels remain close to the current appropriation levels.' That said, the report notes that funding levels proposed in the initial Senate and House budget drafts 'will not be adequate to satisfy the legal requirements for inmate healthcare and meet the minimum manpower needs.'"

In other words, though legislators intend to slash reimbursement rates by up to 24% after a state auditor's report criticized UTMB for overcharging, privatization only makes sense economically for private companies if funding remains at current, much higher levels. That reality makes the prospect seem unlikely.

It was already an open question whether the levels of funding in the state budget are adequate to provide constitutional levels of healthcare at TDCJ. Ward adds ominously that "During the past 10 years, more than 900 medical positions have been eliminated from prison clinics. Doctors and some prison officials have warned privately that further cuts would be likely to trigger lawsuits over too little care." In that context, I fail to see how it would help maters to add a middleman taking a slice of profit out of the budget pie. The Lege has a lot more control over the situation and a greater ability to demand cost concessions if UTMB and Texas Tech continue to provide care.

MORE: The headline to the AP story on this says "Texas may have to privatize prison medical care."  But there's no "have to" here; this is all about "want to." As mentioned above, privatization as a practical matter may be more expensive because outside vendors won't be willing to provide services at Medicaid rates as envisioned in initial budget drafts.

AND MORE: From the Austin Statesman (3/31): "Idea of private healthcare for inmates meets skepticism."

See related Grits posts:

Tuesday, March 29, 2011

Reducing the role of ticketing in school discipline

Another good bill up today from Sens. Whitmire and Juan Hinojosa, SB 1116, aims to reduce the number of tickets written by police on school campuses for Class C misdemeanors. He cited examples from Houston ISD where 9 and 10 year olds were given tickets, which he thinks isn't a response that kids that age will understand or respond to well. Six-year olds have gotten tickets in Dallas, he said.

Deborah Fowler from Texas Appleseed said 420,000 tickets get filed against juveniles every year; 120,000 are traffic tickets and the rest are criminalizing juvenile misbehavior that in decades past would have been handled by schools, parents, etc.. She said there's no evidence that ticketing reduces misbehavior but that it alienates students and leads to worse outcomes. She also said it's likely an unintended consequence of increased police presence on school campuses in recent years. The committee substitute still allows the school to file a complaint with municipal or JP courts, but it reduces the knee jerk response of trying to solve problems through ticketing, Fowler said. (See a major report [pdf] from Texas Appleseed on the subject from December.)

An elderly gentleman announced that he'd opposed Communism his whole adult life and he opposed ticketing juveniles in schools because it was a totalitarian approach to a problem that could be solved other ways.

School district cops opposed the bill. Shocking. Their rep, Jeff Ward, said most school districts had "curtailed" giving citations, but he gave no data to counter Fowler's number. We "shouldn't have to legislate common sense," he said. Ward tried to claim it would prevent police from intervening in violent incidents, but Whitmire rattled off several criminal statutes that would cover the situation he described. Even Ward admitted, "there have been errors made, for sure."

The Texas Public Policy Foundation said ticketing in schools is an example of "overcriminalization" that's "needlessly expanding the scope of government."

Chairman Whitmire says some departments are "writing a lot of tickets to justify their existence."

See related Grits posts:

Whitmire: Save hundreds of millions by giving credit for time supervised on parole

Senate Criminal Justice Committee Chairman John Whitmire has a bill up today in his committee, SB 883, that would save the state hundreds of millions of dollars over the next several years.

The bill would give parolees "time credit for the period of time spent on parole ... till the time of noncompliance, regardless of the amount of time spent on conditional release." In other words, if an inmate is paroled with ten years, gets through nine of them successfully, then is revoked in the tenth, under current law that person goes back to prison for the full ten years. Whitmire's bill would give credit for the time spent on supervision prior to being revoked.

According to the fiscal note, the bill would save $673.5 million over the next five years from reduced incarceration costs (even more in the out years), but Whitmire said savings wasn't his primary motivation. Instead, he said, he thinks it's simply "fair" to give credit for time spent under supervision. A speaker testifying for the Texas Public Policy Foundation called the approach "incentive driven," which is a good way to put it. The bill was left pending but this is the type of legislation that could actually begin to make a serious dent in TDCJ's baseline budget and let them start to seriously talk about prison closures in the near term.

TDCJ units with most cell phone contraband discovered

The website Texas Watchdog asked the Department of Criminal Justice for a unit-by-unit breakdown of contraband cell phones found, and published the results in a spreadsheet here. The ten TDCJ units with the most contraband cell phone discovered, reports the site, are:

Prison guards take budget hits on pay, retirement, health insurance

At BurkaBlog, R.G. Ratcliffe has a column about state employee health benefit cuts, where suggestions for savings include increasing deductibles up to $11,900 per year. Ratcliffe offers this specific example:
For a prison guard  with a take-home pay of $1,825.17 a month, the change would cost the guard an additional $186 a month to cover himself, his spouse and two children. Homer said that is before he has ever accessed the health care system. But Pitts pointed out that the health care plan for state employees is generous compared to what the state does for retired teachers or what private industry does for its employees. “There are not many industries that pay all of the employees’ coverage and half the family,” he explained.
Prison guards would already get a pay cut in the House budget since a 7% pay hike authorized last session to improve employee retention would be rescinded. (The filed version of the Senate budget included the same cut, but it was restored yesterday, at least for now, by a Senate Finance subcommittee.) And COs retirement benefits are also getting cut. Now they'll be expected to pay 10% of their take-home pay on health insurance?

Grits has lately been harping on the issue of high employee turnover among prison guards and its relationship to contraband smuggling, as 4 of 5 new-boot recruits wash out and the agency loses 20% of its guards annually. What do you think turnover rates will look like once these budgetary "reforms" are passed?

Programming cuts v. prison closures: The inevitable tradeoff

Prison closures were abated and some of the probation and treatment funds scheduled for cuts were restored in the state budget on the Senate side yesterday, as well as shifting money from road funds to the Texas Department of Public Safety, while the House and the Governor continue to back deeper cuts. According to a release on the Senate website:
A Senate subcommittee charged with evaluating funds dealing with prisons and the Department of Public Safety recommended increasing appropriations by almost $300 million Monday. These recommendations would restore allocations to current budget levels for many programs. Current funding in the Senate's version of the budget for public safety agencies is about $9 billion, which is more than a billion dollars less than the last budget.

The subcommittee recommendations would put more money into probation and drug treatment programs and would move $100 million from the state's transportation fund, called Fund Six, to Department of Public Safety. Fund Six diversions have been controversial in the past, as critics say that reducing money marked for highway construction and maintenance leaves the state relying on private entities to build toll roads. Subcommittee Chair Senator John Whitmire said using Fund Six money for highway enforcement is within the constitutional intent of the fund. "I'm very committed to the needs of DPS," he said. "We ask them to do more and more along the border, in particular, and along our highways. Fund Six does allow you to spend highway funds if the security and enforcement is related to our safe highways, so we went with the agency and identified easily a hundred million of their request which could be directly related to safe highways."

The subcommittee will present its recommendations to the full Finance Committee later this week.
Mike Ward at the Austin Statesman summed up the Senate changes thusly:
Back in: $273 million for the state corrections system, including funding for rehabilitation, treatment and parole programs, plus $31 million to keep the Central Unit in Sugar Land open; and $32.7 million for DPS to hire 646 additional troopers, $22.8 million for new vehicles and unspecified funding to restore the uniform-cleaning allowance for state troopers.

Out: $10.2 million for operation of a drug treatment lockup in Burnet; $23 million from the Texas Youth Commission's budget, in expectation that the agency will be merged with the Texas Juvenile Probation Commission; and a directive that controversial raises the Youth Commission awarded to eight executives last year be rescinded.

Still on the table: $111.4 million in additional funding for expanded border security.
This is the same subcommittee that just slashed vocational ed classes in prisons by roughly the same amount as it cost to keep the Central Unit open for the next two years, a decision that IMO should be flip-flopped. Texas already releases 72,000 people per year, so most folks in TDCJ are going to get out. From the standpoint of crime reduction, since they're getting out anyway, I'd much rather the agency close a prison and educate more of the prisoners who remain, which in turn dramatically boosts their chances of being employed one year after incarceration. I wish I knew what secret forces were pushing to keep the Central Unit in Sugar Land open. I've long thought that if there was a chance they'd close any prisons at all in the current budget crunch, it'd be the first one to go; locals have lots of good reasons to want it shut down. But especially if the direct tradeoff, as in this subcommittee's recommendations, is cutting programs that reduce recidivism and long-term incarceration costs.

As far as DPS' budget is concerned, IMO the border security money distributed so far has mostly been misspent on activities that either fundamentally misunderstand the real crime problems on the border or seek to exploit them for political gain at the expense of maximizing public safety per dollar spent. If that's ever gonna change, this is the budget cycle when you'd expect it might. Texas already pays for too much of our transportation budget on credit, and DPS may need more troopers but not more missions. Each new one comes at the expense of the agency's core, historic functions.

This hesitance to act in many ways reflects the public mood. According to polling, the public is living in a fantasyland where they believe the state can continue to fund all government services, not raise taxes, and for many (most importantly the Governor), not raid the Rainy Day Fund. That's not true, and eventually the math will force some behind-the-scenes realism, but likely not until May, or maybe even over the summer.

I'm certainly glad the subcommittee restored most probation and diversion funding, but unless I'm misreading my tea leaves, which is certainly possible, the choice to tradeoff vocational ed in prisons and the treatment facility in Burnet with keeping open the Central Unit may bode ill. It'd be one thing if they cut vocational ed and counted the expense as savings, but just spending money cut from an anti-recidivism program to keep one more prison open shows there are unseen forces pressing the Lege to avoid closing even a single unit. In practice, money to keep open old, outdated prisons like the Central Unit (built in 1909 to provide labor for a now-long gone sugar plantation) come at the expense of programs that reduce future crime and long-term incarceration spending.

These changes do indicate to me that senators expect extra revenue, either from the Rainy Day Fund, new taxes (or fees, etc.), or both. We'll probably know more in the next week or two about how the politics of the Rainy Day Fund will play out in the House. And of course, the real budget doesn't get written until the conference committee at the end. These subcommittee recommendations are but yet another step on a long road to a final budget in the most trying fiscal year for the state in living memory. Still, the tradeoff decisions made early on in these venues risk being cemented among those who've made them and repeated over and over like a fractal - cut programming, don't close prisons. Those are the agency's priorities, but in a leadership vacuum where nobody (with power) but TDCJ is suggesting serious cuts (all to probation, treatment and programming), their recommendations and priorities will inevitably be the ones adopted.

MORE: A few tidbits from watching a bit of the hearing:

The committee invited DPS to come back and present to the subcommittee how much could be raised by jacking up a "large number of fees" the agency charges to drivers and others ... ugh! A tax by another name. This is how we got into the Driver Responsibility surcharge mess.

The subcommittee recommended restoring $40 million to juvenile probation and cut $23 million from youth prisons, including 26 cuts at the TYC Central Office.

LBB made a "technical adjustment" to reduce its estimate of how many employees TDCJ could afford to keep by 723 based on the funding levels in SB 1, potentially presaging more layoffs. OTOH, the subcommittee recommended reinstating the pay 7% pay raise given COs last session which the filed version of SB 1 would have eliminated.

Whitmire said he and Ogden were looking at reductions in the number of private prison beds including Mineral Wells instead of closing the Central Unit, and it "probably" would be closed eventually, but he wanted to keep it on the table heading into the conference committee. Whitmire called keeping the Central Unit open "a concession from me to Ogden."

Part of the reason for suggesting closing the Burnet treatment unit is as a bargaining chip to convince the county to lower its rate.  (Sen. Kel Seliger was a great spokesman for treatment and diversion programs.)

The subcommittee recommended restoring General Revenue funding for inspections of county jails by the Commission on Jail Standards, reacting to pushback by the counties over a plan to charge them fees for state inspections. (One suggestion was to let agencies use commissary profits to pay TCJS fees.) If the agency does not get enough GR funding they'll need new statutory authority to charge additional fees to fund their core operations.

Monday, March 28, 2011

Big Brother on steroids: License-plate readers, checkpoints, and tracking cars w/o a court order, up Wednesday

There are a ton of nasty-sounding bills up in the Senate Transportation and Homeland Security Committee hearing on Wedesday morning at 7:30 a.m. (see their agenda), but I think SB 9 by Sen. Williams has definitely made it to the short list so far among candidates for my own, personal, "Most Despised Bill of the Session. This legislation:
  1. Authorizes drivers license and insurance checkpoints (after the Lege and courts have repeatedly rejected DWI checkpoints, which is what police really want).
  2. Authorizes a two-year statewide pilot program of roadside license plate readers with tracking data gathered by a private contractor.
  3. Requires police officers in the field to check the immigration status of arrestees with ICE instead of leaving the task to county jails after arrest.
  4. Requires county jails to calculate and report every month the cost of the unfunded mandate caused by increased incarceration from #3, above.
  5. Changes the duties of "special" Texas Rangers to include background investigations and monitoring sex offenders as well as two man patrols in "high threat areas" (no word if that's the border or central Houston).
  6. Increases penalties for organized crime but in certain cases removes the requirement of an "overt act" to establish that someone is part of a criminal conspiracy.
I don't think I agree with anything in this bill after the caption: "relating to homeland security." Sen. Williams and others also have bills on the agenda breaking up each of these individual ideas into their own bills, and there are two other bills up from Democrats Lucio and Hinojosa setting the groundwork for southbound checkpoints by DPS aimed at seizing cash they hope will bolster state coffers through asset forfeiture.

Another billl by Chairman Williams, SB 1694,  would allow law enforcement agencies to put a tracking device on your vehicle without a court order!

There is one promising if modest bill up from my own state Sen. Kirk Watson, SB 1572, limiting the information that can be gathered by fusion centers thusly:
A fusion center may not:
(1)  review, collect, or maintain noncriminal information or criminal intelligence data about the political, religious, or social views, associations, military history, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless the information directly relates to criminal conduct or activity and reasonable suspicion exists that the subject of the information is or may be involved in criminal conduct or activity; or

(2)  review, collect, or maintain protected health information, biometric information, or personally identifiable information unless the information directly relates to criminal conduct or activity and reasonable suspicion exists that the subject of the information is or may be involved in criminal conduct or activity.
If they passed that bill I might feel (slightly, marginally) less awful about the idea of putting up license plate readers here there and yon, since the only limitation presently in SB 9 is that the data must only be used "for law enforcement." But really I'm hoping most of the Big Brotherish stuff will get rejected, if only because of the fiscal note (which hasn't been released yet) and the local impact of expanding peace officer duties given limited resources. All these checkpoints, the data collection and analysis, the extra immigration-related enforcement and incarceration, all cost money, if the Lege is honest about it, and seems unwise at a point in time when the state needs to scale back its activities, not find new unfunded mandates and gadgetry to waste the taxpayers' money on.

RELATED: See coverage of SB 9 from the Conroe Courier.

Because in this economy, why wouldn't you want to shut down five functioning local businesses?

Corpus Christi wants to shut down its head shops, reports the Caller Times:
A district judge is expected to decide next week whether it is legal for Corpus Christi to ban pipes for smoking.

Five smoke shop owners have sued Corpus Christi to stop a city ordinance passed Feb. 8 that banned smoking paraphernalia such as bongs and pipes but excluded hookahs, which often are used to smoke legal tobacco. The ordinance also bans synthetic marijuana, such as K2.

Earlier this month District Judge Bobby Galvan denied an emergency request for the court to temporarily lift the ordinance until the case was decided. Shop owners said the ordinance will put them out of business because pipes account for most of their sales.

During a hearing Wednesday, Attorney José “Chito” Vela III, who represents shop owners, said the city ordinance exceeds state law. Assistant City Attorney Alison Logan said the city used other city ordinances to draft the one approved by City Council. She referenced a similar ordinance passed by the city of Plano.

The city has until Friday to file a court briefing that defends its position and can provide examples of other cities that have outlawed something the state says is legal.

Vela said the city also violated the Texas Open Meetings Act when it passed the ordinance in one meeting, as an emergency item, without giving proper notice on the agenda. Nonemergency ordinances must go before the City Council over the course of two regular meetings before they can be approved.
Why would Corpus Christi need sales tax revenue, anyway? People drive to Louisiana, New Mexico and Oklahoma to gamble, but the City Council doesn't think they'll go online to order a bong? And lots of just plain ol' tobacco smokers (like my own late great-grandfather) smoke pipes. I suppose this is what the Governor means when he says Texas has a "business friendly" environment - friendly so long as one doesn't offend any local prudish sensibilities. During election season, all these self-styled "conservatives" run promising "limited government," then once elected they want to use government power to shut down businesses and tell others what they can and can't do. What's so damn limited about that?

AFTERTHOUGHT/EPILOGUE: A college buddy of mine, Ron Tupa, grew up in Corpus Christi and went on to become a state senator in Colorado. When we were at UT-Austin together, he used to jokingly refer to his hometown as "Lubbock on the beach," but in this case he wasn't giving Lubbock enough credit: They have plenty of smoke shops and as far as I know Hub City doesn't hassle them.

UPDATE/BREAKING: The Caller-Times reported this afternoon that District "Judge Bobby Galvan ...[said] during a phone conference Monday that he will issue a temporary injunction" in the case, ultimately "requiring the city to lift the ban." Apparently Plano is the only other city in the state with a similar law. I wonder if their ordinance has ever been challenged, or if it will be now?

'Private prison promises leave Texas towns in trouble'

You don't get something for nothing
You can't have freedom for free
You won't get wise
With the sleep still in your eyes
No matter what your dreams might be.
- "Something for Nothing," Geddy Lee, Neil Peart, Rush, 1978
NPR's John Burnett has a terrific story this morning with the same, alliterative title as this post that focuses on a subject familiar to regular Grits readers, but which definitely deserve national attention: Private prison companies that convince local governments to construct more jail space than they need then abandon them when there's no income to cover the debt. In West Texas at the Billy Clayton facility (named after a former Texas House Speaker), Burnett reports:
For the past two years, Littlefield has had to come up with $65,000 a month to pay the note on the prison. That's $10 per resident of this little city. ...

To avoid defaulting on the loan, Littlefield has raised property taxes, increased water and sewer fees, laid off city employees and held off buying a new police car. Still, the city's bond rating has tanked.

The village elders drinking coffee at the White Kitchen cafe are not happy about the way things have turned out.

"It was never voted on by the citizens of Littlefield; [it] is stuck in their craw," says Carl Enloe, retired from Atmos Energy. "They have to pay for it. And the people who's got it going are all up and gone and they left us... "

"...Holdin' the bag!" says Tommy Kelton, another Atmos retiree, completing the sentence.
Meanwhile, as Grits has been documenting for several years, the same this is happening in Waco, Johnson County, and elsewhere, with no end in sight. "According to the Bureau of Justice Statistics, the total correctional population in the United States is declining for the first time in three decades." As a result, speculative interest from private prison boosters is waning. In particular, says Burnett:
New Jersey-based Community Education Centers, which has been pulling out of unprofitable jails across Texas, issued a statement that "the current (jail) population fluctuation" is cyclical.

One of the places where CEC is canceling its contract is Falls County, in central Texas, where a for-profit jail addition is losing money. Now it's up to Falls County Judge Steve Sharp to hustle up jailbirds: "If somebody is out there charging $30 a day for an inmate, we need to charge $28. We really don't have a choice of not filling those beds," he said.

Another place where they're desperate for inmates is Anson, the little town north of Abilene, Texas, once famous for its no-dancing law. Today, Jones County owns a brand-new $34 million prison and an $8 million county jail, both of which sit empty. The prison developers made their money and left. Then the Texas Department of Criminal Justice reneged on a contract to fill the new prison with parole violators. The county's Public Facility Corporation that borrowed the money to build the lockups owes $314,000 a month — with no paying inmates. They've got a year's worth of bond service payments set aside before county officials start to sweat.

"The market has changed nationwide in the last 18 months or two years. It's certainly a different picture than when we started this project. And so we're continuing to work the problem," Jones County Judge Dale Spurgin says.
FWIW, I've opposed these crackpot deals ever since I first learned of them - years before the incarceration bubble finally burst and their fundamental flaws were exposed. The reason isn't that I disdain private prisons per se but the inherent instability of the financing structure underlying these something-for-nothing deals. You see, I've heard all this rhetoric before.

I happened to cut my teeth as a cub reporter in Texas during the aftermath of the Savings and Loan scandals in the late '80s, and these "free jail" deals remind me of nothing more than they do the road districts and MUDs created by local governments on behalf of speculators to secure government-backed financing for extending infrastructure to far-out private developments. Sometimes these schemes worked out and the districts were later absorbed rather painlessly. But quite a few others went bust, leaving cities and counties holding the bag for investments that were touted as paying for themselves. Whatever happened, the relationship between the eventual outcome of these deals and promises made on the front end by corporate "partners" in these public-private partnerships was virtually nil. The developers could always walk away, as is happening now with the jails, but the impact of default on local governments is politically and economically unacceptable. When the bill comes due, they have no choice but to raise taxes to cover the debt.

That's exactly what's happening in the counties described in this story, and anyone who witnessed those S&L-era failures of road and utility districts saw it coming a mile away. Jails aren't free. They're a fundamental government obligation paid for with taxes. Private prison companies, by contrast, are speculative, profit-seeking ventures with no inherent interest in either public safety or protecting local taxpayers. When hard times hit, they bail. And then, as if on cue, everyone acts surprised.

RELATED: From NPR this week:

Dallas DNA exonerations expose evidence retention flaws

If the Dallas crime lab hadn't kept evidence from Cornelius DuPree's case 30 years ago, he wouldn't be a free man working as a legislative intern this session for state Sen. Rodney Ellis. But evidence retention issues are too often relegated to the back burner, even in the innocence reform movement.

A USA Today story by Kevin Johnson ("Storage of evidence crucial to exonerations," March 28) makes an excellent point about all the DNA exonerations out of Dallas, which has seen as many innocent men walk out of prison based on postconviction DNA testing as the rest of Texas combined: The reason isn't that Dallas convicted more innocent people than everybody else, they just saved the evidence so it was later available for testing. Reports Johnson:
In Dallas County, the wrongs are being righted because "the evidence — decades after it was collected — was there to test," District Attorney Craig Watkins says. The county has been retaining evidence for decades, some samples since 1978.

But in many places, the samples that ultimately freed DuPree, Woodard and Chatman would not have been saved. Only about half the states — including Texas — now require the automatic preservation of DNA evidence after conviction, according to The Innocence Project, which uses DNA evidence to assist inmates' claims of innocence. Sixteen states have no preservation laws.

As new cases of wrongful convictions continue to emerge based on DNA tests, the campaign for consistent preservation standards is gaining momentum across the country.
Not only did many jurisdictions not keep old evidence, in some like Bexar County, when old caches of rape kits were found, prosecutors declined to follow Watkins' lead, retesting only in cases where guilt might be proved but not vetting for possible innocence claims.

As Grits has emphasized before, the number of DNA exonerees represents just a small sample of the total number of innocent people convicted and incarcerated in Texas. After all, biological evidence exists in less than 10% of violent crimes to begin with, meaning for every DNA exoneree there are likely nine other innocent people who DNA cannot exonerate. But when you add to that Johnson's observation that most jurisdictions do not retain old biological evidence, the chance of postconviction exoneration for most innocent convicts become slim indeed. In this recent post, Grits compiled the various available estimates of actual innocence rates to guesstimate that some 2-3,000 people at any given time are locked up in TDCJ for a crime they didn't commit (estimates range from 1,200 to 5,000+).

Evidence retention issues are a red-headed stepchild to begin with. Labworkers see it as beneath them, and a hassle; district clerks are often ill-equipped for the job; and historically the evidence room is where police departments assign either the disabled or sometimes problem officers who can't be trusted on the street. Charley Wilkison of CLEAT has boasted to me that quite a few local police associations have been organized out of the evidence room because disciplined officers assigned there decided to unionize. The professionalization of evidence retention has only really begun in the last decade or two and only in the largest departments (of necessity). Wrote Johnson:
Joe Latta, executive director of the International Association for Property and Evidence, says problems with missing and mishandled evidence plague the industry.

"The vast majority (of police agencies and crime labs) have a hard time taking care of what we call 'the stuff,' " says Latta, one of 23 members of the federal panel that is developing national guidelines for evidence retention.

He says many evidence warehouses are run by police or other law enforcement officials who have no background overseeing those operations. Civilian scientists, not police, maintain the biological evidence in the Dallas lab.

"Police chase bad guys," Latta says. "We have no experience whatsoever taking care of warehouses."
Notably, one of the issues that sunk Williamson County District Attorney John Bradley's nomination in the Senate for Forensic Science Commission Chairman was his advocacy among prosecutors of securing destruction of untested biological evidence in plea agreements on the grounds that future actual innocence claims might otherwise "trump" any plea deal. That kind of gamesmanship - where prosecutors see innocence claims as an evil to be prevented rather than an opportunity to seek justice - compounds the problems created by shoddy evidence retention. For too many actors in the system, the purpose of evidence is only to secure a conviction and once that's accomplished it's no longer treated as valuable. But it was certainly valuable for Cornelius DuPree and the other exonerees cleared through DNA testing and - because of the relative rarity of biological evidence and shortcomings in evidence retention - it's clear their cases represent only the tip of the iceberg.

Sunday, March 27, 2011

Tulia-style mass drug bust in Wichita Falls perpetuates cycle instead of breaking it

Whenever I see reports of large drug stings like the one described this week in the Wichita Falls Times-Record News ("Sheriff expects more arrests," March 25), where 44 people so far have been arrested in a roundup following a long-term undercover operation, I always think of the infamous drug busts in Tulia and Hearne, where innocent people were caught up in similar drug stings netting dozens of convictions based on testimony from a lying cop and a coerced, mentally ill informant, respectively. Rather than track drug sources up the ladder looking for kingpins and cartel connections, in these sorts of "sweep" operations, agencies seek to maximize the number of penny-ante arrests by making small-time buy-busts using informants or undercover narcs, typically without ever disrupting the availability of drugs in the least. (Bail on the most serious offender was $175,000; we're not talking about Pablo Escobar here.)

Just as in Tulia and Hearne, the local media is already participating in the demonization of these defendants, including posting all their mug shots, helping sour the jury pool in a way that's actually not allowed in Britain and some other western countries. What's the journalistic value of publishing photos like this one in small-time drug possession cases?

A spokesperson from the Wichita DA's office said she "hoped the local law enforcement efforts would help break what she called a perpetual cycle of drug abuse and sales." But given the thousands upon thousands of low-level drug arrests over the past four decades, how can anyone think these 44 arrests will now, magically "break ... a perpetual cycle"? It's hard to believe people still say that sort of thing with a straight face.

There's a growing criticism among reformers that even drug courts and various criminal justice-driven treatment programs, while well intentioned, are doomed to fail by funneling treatment support through the justice system instead of treating addiction as a public health problem. When I've got more time, I have much more to say about those provocative critiques, whose insights are important and IMO partially correct, but too narrow and dismissive of evidence-based successes. Certainly, though, I agree that arresting low-level drug offenders en masse is among the least cost-effective ways to approach the problem. These type of throw-back tactics to the bad old days of Tulia-style drug task forces arguably combat drugs in the most expensive, least effective fashion, reducing neither drug addiction nor the availability of drugs in any meaningful way.

Nueces officials: Cuts to probation will end specialized courts, force group reporting, increase prison costs

The Corpus Christi Caller Times has an article ("Nueces County probation department bracing for cuts," March 27) localizing the story about proposed budget cuts to probation departments, detailing what they would mean in particular to Nueces County:
One proposal in the House would have cut about 22 percent from the department's budget during the next two years. That likely would kill the six diversion court programs along with the department's specialized caseloads.

It also would mean probation officers wouldn't have much time for fieldwork like checking on interlock devices for DWI offenders, curfew checks and keeping tabs on sex offenders on probation. The average caseload of 130 offenders would rise to about 165, according to a February department report on the impact of proposed cuts.

The report stated that under an initial Senate proposal 12 percent in funding would be cut to local diversion programs, which would allow the department to support five of the six specialized courts.

Department director Javed Syed said that on Thursday the most severe cuts proposed in the House's version had dropped to about 9 percent, which would spare local diversion programs. That hinges on whether the state's Rainy Day Fund will be used, he said.

But even at that level, the department still would have to cut its surveillance team among other things.
Syed, who has met with several legislators about the possible cuts, testified in Austin this month before the Senate Finance Committee about the situation.

"If you don't have any supervision, the chances for failure are enormous," Syed said.

One possible way to handle steep cuts and higher caseloads could be group reporting for probationers. "You don't have the time for all the one on one that you really require," said Judy Randolph, the department's deputy director.

The eight local district judges also sent a letter to the committee saying that if funding for the six diversion court programs were to be cut they would be left to send more offenders to prison, who could otherwise have had a chance at rehabilitation.

The added prisoners would end up being a more expensive alternative than keeping the programs, which have proven success rates, according to the judges' letter.
The judges are absolutely right, and they're not the only ones sending Texas legislators the message that cutting (cheaper) treatment and diversion programs will increase incarceration costs. The question is, are budget writers listening to local judges and probation chiefs or bureaucrats at TDCJ? The recommendations for budget cutting they're getting from those two groups are, for the most part, diametrically opposed.

Sound staffing policies, lower inmate numbers, not high-tech gadgetry best solution to contraband problems

A combination of underfunding and ineptitude allowed a recent escape from solitary confinement at the Stiles Unit in Beaumont, according to Lindsay Wise writing in the Houston Chronicle ("Prison in need of security updates," March 27). The article opens:
A half an hour without direct supervision was all it took for felon David Puckett to escape from solitary confinement at a maximum security prison in Beaumont, unseen by guards.

The breakout wasn't even caught on surveillance video.

Now Puckett is back under lock and key, but his escape earlier this month put a spotlight on security shortcomings in Texas' 97 state-run prisons, particularly the lack of comprehensive video surveillance systems.

Just one prison — Death Row — has such a system, according to statistics obtained from the Texas Department of Criminal Justice. Only 32 units have walk-through metal detectors, 34 have body orifice security scanners, and a total of 23 are equipped with parcel scanners, the statistics show.
Wise correctly points out that, thanks to the state budget crunch, expanding high-tech solutions like cameras, metal detectors, parcel scanners, etc., seems unlikely in the near-term:
In 2009 the Texas Legislature allocated $10 million for TDCJ to purchase contraband screening equipment — walk-through metal detectors, parcel scanners, and body orifice security scanners — at maximum security units and comprehensive video surveillance systems at several targeted facilities, including the Stiles unit, where Puckett staged his escape.

Now TDCJ faces $40 million in budget cuts. One of the items to be scrapped recently was a $2.4 million video surveillance system at the McConnell unit in Beeville.

Two such systems will be completed in May at the Stiles unit in Beaumont and the Darrington unit in Rosharon, Lyons said.

TDCJ looks forward to improving on those systems in the future, provided the money is available, she said.
"The equipment's costly," she added. "It's invaluable, but it is costly."
"Invaluable," of course, is not the right word. According to, "invaluable" means "beyond calculable or appraisable value; of inestimable worth; priceless." But these security systems have a price. They can put a precise dollar figure on what it would cost to upgrade security at the 97 state-owned units (plus the 15 private units where the state leases beds, most of which don't have such accouterments, either).

Further, not only do we know the price, but we know that price is higher than the value the Texas Legislature places on keeping contraband out of prisons. How do we know this? If the equipment and staffing to employ it were truly "invaluable," by definition doing so would be a bargain and they'd fork over whatever money were required. Instead, most units don't have even basic security equipment. There are more metal detectors at the Texas capitol than at the majority of Texas prisons, which tells us legislators are more interested in their own protection than preventing contraband from entering secure lockups. (IMO metal detectors at the capitol should be eliminated and donated to TDCJ.) Anyway, judging by what they spend money on as opposed to taking their pronouncements at face value, any sensible observer must conclude that reducing contraband at prisons, despite all the "zero tolerance" rhetoric, falls rather low on the list of legislative priorities for all but a few individual members like Sen. John Whitmire.

Let's face it: Even where TDCJ has such equipment, the agency lacks sufficient experienced staff at many units and suffers from such high employee turnover that they can't always trust the people running it. Exacerbating the problem, the agency will undoubtedly be asked to cut staff in the next biennium (beginning in September), and has already been ordered to eliminate hundreds of management slots, meaning front-line employees bringing in contraband will now contend with fewer layers of oversight.

To top it off, even if new equipment were purchased and installed at every unit- at a cost of tens of millions the state doesn't have - nobody is contemplating paying for the extra staffing required to monitor and use such equipment. So if there aren't enough trustworthy warm bodies to man those posts, all the technology in the world will have little effect on contraband.

This is a recurring theme when technological solutions are touted as a cure-all for security problems: An apt analogy are GPS anklets, alcohol monitors, and ignition interlocks used on probationers, all of which do little good if probation officer caseloads are so high they can't monitor the data generated. As Grits observed some years back, "People often talk about GPS tracking as though it's a replacement for probation and parole officers .... The reality: GPS generates MORE data which therefore requires more people to analyze and make it usable and more POs to act on the information. GPS as part of an integrated supervision model would actually create MORE work, not less, for government agents. Without that human component, there's nothing about a bunch of dots moving around on a computer screen that makes us inherently safer."

Murmurings bubbling up out of the TDCJ rank and file indicate understaffing at the Stiles Unit may have played a primary role in the recent escape. According to a CO who recently worked in ad seg at Stiles , "Basically, the problem is Overworked Staff and Bad Correctional Officers" [emphasis and capitalization in the original]. The Back Gate website adds, "Due to TDCJ reducing the number of Officers on unit staffing plans, some areas are drastically undermanned and unsafe. This story seems like it is on that path. It happens everyday, on nearly every unit in the state. Less staff members are required to get more work done. Administrators know the numbers and accept the fact that corners must be cut. Until something like this happens. It's not a unit level wardens issue. Its a Huntsville and regional issue."

The Legislature and TDCJ's myopic focus on technological solutions (often promoted by some campaign-contributing vendor who stands to handsomely profit) ignores the real underlying causes of contraband getting into Texas prisons: Corruption among a small but persistent minority of correctional officers; high turnover among inexperienced front-line staff; sexual relationships between female guards and prisoners; and most of all, a bloated system filled with so many prisoners they can't be adequately monitored with even the existing number of staff, much less the reduced coverage required if recommended cuts in the current House and Senate budgets are implemented.

Though I'm sure in some backroom somewhere a few legislators are getting down to brass tacks (at least, God help us, I hope they are) the public conversations on topics like prison budgets, staffing and contraband always seem to occur in a fantasy land, where everyone pretends not to recognize that the incarceration bubble has burst or how much it would cost to keep it going.

Want to reduce prison contraband? Reduce the number of inmates by 10-15,000. Consolidate prisons, closing 8-10 strategically selected ones, including those with the worst contraband problems. Reduce staffing levels so that demands for recruiting aren't so great (four out of five new-boot recruits at the CO I level wash out before reaching CO III). Employee turnover is so high among guards that the agency could accomplish staffing reductions without firing anyone; attrition would quickly reduce their numbers if recruitment were ceased or retarded.

Otherwise, pretending the TDCJ can make prisons secure using existing (or fewer) staff and a few extra cameras here and there - while maintaining or even expanding the number of prisoners - is at best unrealistic and at worst setting the agency up for more security breaches like the one at the Stiles Unit. Just declaring "zero tolerance" accomplishes nothing when the state is impotent to back it up. The big-picture solution for TDCJ's security problems lies not so much with technological gadgetry, but is essentially the same as the answer to its budget woes: Legislators and TDCJ brass must, like it or not, stop pretending the status quo can be sustained and begin to believe impossible things.

Saturday, March 26, 2011

Grits hits 3 million visitor mark

Just to have mentioned it: This morning around 11 a.m. Grits hit the 3 million visitor mark (with around 4.9 million page views). I don't know whether that's a lot or a little compared to others, but it took six and a half years to get there. This is the 5,874th post since Grits launched in October 2004, and lately the blog has been averaging 15-16,000 visitors per week. Let's take the opportunity to perform a little housekeeping:

It's been awhile since I've promoted Grits' email subscription option, but as of today, 1,017 readers get Grits posts via daily email subscription. If you'd like to join them:

Enter Your Email to Git Yer Daily Grits!
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Thanks for reading, folks!

Rebutting the Austin Statesman on cutting vocational ed for prisoners

The Austin Statesman today editorialized against providing post-secondary vocational courses to Texas prison inmates, and made this flawed argument (rebutted over the last few days in the comments to this Grits post):
So far, the state has spent $26.9 million on the program, which is based on the proven notion that recidivism rates can be lowered if inmates leave prison with more education than they had when they arrived.

The cost of the program was to have been borne by the inmates in it. After being released from prison, they are supposed to repay the state for the college-level and vocational courses they took while incarcerated.

Predictably, the repayment rate has been less than adequate. The American-Statesman's Mike Ward reported this week that only 6,630 of the 22,000 former convicts who took the courses have made full repayment. Overall, the state has received only $4.7 million in reimbursements.

And that means criminals are getting a taxpayer-funded higher education deal unavailable to folks who aren't criminals.

A case to shut this program down could be made even if we were not in a budget crunch of epic proportions. We're with House Corrections Committee Chairman Jerry Madden, R-Richardson, who noted, "We don't provide free college tuition for anyone else like this, so with the budget crisis we're facing, why should we for convicted felons?"
Several things are wrong with this pronouncement. For starters, comparing post-secondary vocational classes available to prisoners to "higher education" of the type received at colleges is disingenuous. There aren't any prisoners taking English lit, philosophy, sociology, women's studies, etc.. The cuts under discussion are to vocational programs which, though recidivism studies have never been done, have proven successful at boosting employment rates after release for those who participate in them.

The Statesman editorial overlooks incarceration cost while drawing these false parallels between in-prison vocational training and traditional higher ed, ignoring the long-term costs of recidivism. Texas releases some 72,000+ convicted felons per year from prison, so the cost to taxpayers is much greater if, when they leave, they're unprepared, fail, and end up back in lockup instead of successfully reentering society. Prisoners receiving post-secondary vocational training are 1.6 times more likely to be employed one year after leaving prison than those who receive none. Given that unemployment is a pivotal predictor of recidivism, future incarceration for these offenders (in the near term, within three years of release) would cost substantially more than fronting costs for vocational programs today. If legislators cut vocational ed, drug treatment and other prison programming, taxpayers pay more overall because of higher recidivism. That's not speculation, it's exactly what happened last time vocational programs at Windham were slashed.

Even more flawed is the economic analysis presented by the newspaper about inmate repayment rates. According to the Mike Ward's reporting, the program is only ten years old and inmates can't participate until they have 7 years or less to go. That means many participants are still incarcerated and have had no chance yet to pay. So for 30% to have paid in full is really quite extraordinary. And presumably others have paid some but just not yet "in full," just like many people have outstanding student loans.

So in context, that's a relatively high rate. And of course since repayment happens through parole fees, there's arguably a stronger mechanism for securing repayment than there is for student loans. How many people have paid off their student loans in full two or three years after leaving school? If students in or out of prison could afford to pay up front, they wouldn't need to borrow or in inmates' case pay in installments after the fact.

Finally, and this is really my biggest complaint about the whole debate, legislative leaders are still talking about teeny-tiny numbers compared to the hundreds of millions in cuts needed at TDCJ, another instance of rearranging the deck chairs on the Titanic. Cutting programming that costs $4.4 million per biennium but that increases post-release employment rates and reduces recidivism is a meaningless, even counterproductive gesture when the Governor and budgetmakers in the House have demanded $786 million in cuts from TDCJ in the next biennium. To get there, they must reduce the number of inmates and expand community supervision programs, or else risk having to lease private beds for up to 12,857 extra inmates by 2013, which would cost an additional $200 million per year, give or take. So making a big deal out of a $2.2 million cut is really just a distraction. Nobody at the Legislature is talking yet publicly about real budget solutions, in corrections or for the most part anywhere else, and it's getting pretty late in the game.

See related Grits posts:

Friday, March 25, 2011

Lies, damn lies and LBB fiscal notes: Why it's really not free to make K2 possession a felony

Marc Levin from the Texas Pulbic Policy Foundation emails to alert me to another absurdist budgetary claim on criminal penalty enhancements from the Legislative Budget Board: A "zero Fiscal Note for legislation making K2 possession a felony!" (K2 is a form of currently legal, synthetically produced marijuana.) Suggested Marc, "You might want to explore on Grits how this legislation could have a zero fiscal note given that it makes possessing even the smallest amount of K2 a felony. I guess they assume if it is outlawed, no one will use it. But that has not been the case with other drugs!"

I wish that were the case. I'd like to believe LBB fiscal notes promote such absurdities because of an honest error, because somebody there really does believe that nobody will be incarcerated under such a statute if it becomes law. But nobody actually thinks that.

The problem is, fiscal notes on enhancements aren't actually mathematical calculations, they're political ones. Bills that LBB knows for a fact will increase the number of prisoners routinely are dubbed "insignificant" in cost, despite the fact that we must lease extra beds for them from private prison contractors. There's literally only one criminal enhancement I've ever seen which gets a fiscal note - bills increasing penalties for burglary of a motor vehicle (BMV) from a Class A misdemeanor to a state jail felony - and the only reason is back in 2005 a bunch of us spent months fighting with LBB over it until they finally caved. But just on that one bill. Even bills sending the same number of people to state jail as BMV get "insignificant" fiscal notes.

Rep. Allen Fletcher just passed a bill out of House Criminal Jurisprudence enhancing a crime from a Class B to a first degree felony that, according to testimony, would apply to 130 people per year just from Houston, but it's supposedly got an "insignificant" cost. And Sen. Leticia Van de Putte's human trafficking bill has several enhancements LBB didn't account for. Everywhere you look, bills increasing criminal penalties are passed at the Lege with no regard at all to the costs of incarceration. By contrast, LBB acknowledges that bills reducing incarceration pressures save money, but not the converse. And the worst part, there's little evidence such enhancements reduce the behaviors they target. So the expenditures not only are unaccounted for, but taxpayers get little bang for the buck.

I hate to use words like this, but the budgeting process on criminal sentencing is simply dishonest. And it's equal opportunity dishonesty. Democrats and Republicans play the same game. Such slight of hand benefits politicians as a class, sorta like lobby perks. It's become a staple ploy for legislators to use "enhancements" to symbolically align themselves against this or that activity that's annoyed some class of their constituents. Graffiti's a great example: We see bills boosting penalties every session, but prosecutors secure fewer than 300 convictions annually statewide compared to tens of thousands of crimes. Yet boosting clearly ineffective penalties even higher is the only solution ever proposed, even though the clearance rate for the offense is so low the punishments never apply to most taggers.

At the municipal level folks may try more practical approaches, but for whatever reason, there seems to be a fundamental failure of imagination at the Lege when it comes to addressing social problems like drug abuse and graffiti. Instead, partially because it's considered cost-free in the budget, the knee-jerk legislative response to every fresh complaint is to propose criminalizing a disliked behavior or increasing punishments if it's already against the law. That usually doesn't stop the behavior, but in the next election cycle the politician gets to say they were "tuff" on whatever disliked activity they've targeted.

If LBB would just do its job - calculating the number of extra prisoners from such bills multiplied by current rates for private prison beds - lawmakers would be forced to secure appropriations for every enhancement bill they pass. Even better, maybe, just maybe, legislators would be forced to think through problems constituents bring them more carefully, set priorities, and actually come up with cost-effective solutions that work, maybe even that save money. In any event, Texas won't see real, fundamental reform in the criminal justice arena until LBB fiscal notes are based on math, not political expediency.

See related Grits posts:

Thursday, March 24, 2011

308 bills push tuffer penalties; cuts to DWI, domestic violence probation look like political suicide

Over at the Texas District and County Attorney's Association, Shannon Edmonds tallies the damage now that bill filing deadline and the midway point of the session have passed. Legislators have filed 106 bills enhancing (read: increasing) existing penalties, 88 bills creating new felonies, and 114 creating new Class A/B misdemeanors, for a total of 308 bills proposing new crimes or penalty increases. Because just not enough stuff is illegal.

Also notable was Shannon's grim analysis of "the (sorry) state of the proposed state budget with respect to probation":
Here are the low-lights of the House and Senate versions of the original budget bills, as we discussed earlier this session:
  • State funding of misdemeanor probation (about one-third of the total cost) is eliminated
  • Felony probation funding is also reduced
  • Support of treatment/diversion programs is rolled back to 2007 levels
  • Supervision officers and direct care staff salaries are rolled back to 2009 levels
  • BIPP funding is eliminated
  • TAIP funding is cut (90% cut in the House, 51% in the Senate)
  • Mental health services are slashed
The Senate version is currently more favorable in several areas, but that was based on using some of the Rainy Day Fund. Now that the Governor has made that a non-starter for the next budget (see our Quotes section below), the House's more drastic reductions in probation funding appear to be closer to the eventual product. Furthermore, several new bills—including HB 3664 by Otto, HB 3649 by Otto, and SB 1583 by Ogden—would permanently remove TDCJ's obligation or ability to fund any part of misdemeanor probation in the future (perhaps under the theory that misdemeanors are a local issue, not a state problem). The impact of those bills and that final budget will vary by location, so talk to your local CSCD for the details on your local situation. However, it is probably safe to say that several residential treatment facilities will close and specialized caseloads will be reduced or eliminated, while CSCDs will be forced to spread around what little felony probation funding they still get to help with other unfunded obligations. How that will all shake out is still to be determined, but it won't be pretty.
Wow ... making the deletion of state misdemeanor probation funding permanent is really going to rankle some feathers at the county level. Misdemeanors are stuff like, you know, DWIs!! Are they really going to go home to run for reelection having eliminated funding for DWI supervision? I worked professionally as an opposition researcher for a dozen years, so I know how this works: Whether or not there's a direct correlation, the first child to die from a drunk driver on probation after the cuts go into effect will have a bill reinstating the funds named after them heading into the next session, and the issue will become hard-hitting fodder against incumbents in both primary and general elections. Who wants to be the guy (or gal) who voted to cut money for ignition interlocks, specialized DWI caseloads, residential treatment, etc., and then have that hung around their neck as DWI horror stories rack up? Ditto for domestic violence misdemeanors. Even incidents that would have happened anyway will get blamed on those voting for the cuts, given the shrill, ruthless nature of modern political campaigning.

So here's an idea: Why not avoid such unpleasantness? How 'bout the Legislature STOP jacking up criminal penalties, kill those 308 bills, pass Rep. Harold Dutton's legislation reducing low-level drug penalties, and use the savings to re-fund misdemeanor probation, maybe even pay for more specialized caseloads and electronic monitoring instead of putting more population pressure on county jails? That's gotta be better than eliminating misdemeanor probation funding, which strikes me as potential political suicide given the public tenor of the day on DWI issues.