State won't compensate Anthony Graves for innocence; instead garnishes his paycheck

Anthony Graves seemingly can't win for losing. Exonerated and freed 18 years after his capital murder conviction, the state Comptroller first refused him compensation and now the AG is garnishing his wages based on a child support order issued years after he'd been sent to death row. An editorial in the Houston Chronicle hit the nail on the head:

As the Chronicle's Harvey Rice reports, the Texas Attorney General's Office also is garnisheeing $175 a month from the former inmate's salary as a legal investigator for nearly $5,500 the state claims he owes in back child support while he was behind bars.

The state also seized a $250 honorarium that Graves was to be paid for a presentation to political science students at Prairie View A&M University about his prison ordeal.

"The state of Texas tried to kill me for something I didn't do, and now they are trying to get child support out of me," Graves told Rice. "I feel powerless."

According to a spokesperson for Attorney General Greg Abbott, because a judge ordered then-prisoner Graves to pay the child support in 2002, the AG's office has a legal obligation to collect the money. He did express sympathy for Graves, adding, "his experience is truly troubling and deeply compelling."

Obviously not troubling or compelling enough for the governor, the comptroller and the attorney general to get their heads together and try to cut through the bureaucratic red tape and remedy the continuing effects of a truly horrible miscarriage of justice.

The state took away Graves' freedom for much of his adult life, dismissed on a technicality the compensation owed him by law, and now bills him for the consequences of his wrongful imprisonment. It's a truly sickening situation.

Where there's a will to right an injustice, the most powerful officials in the state must find a way. If they had real sympathy for what this man has suffered, they'd promptly set things right.

If Graves hadn't been falsely convicted, of course, he'd have been around to support his children in the first place! For that matter, if he were compensated for what happened to him, there's little doubt he'd have no trouble satisfying this obligation. But coupled with the Comptroller's denial of compensation, this scenario tacks on further insult to already-incalculable injury.

MORE: From Lisa Falkenberg at the Chronicle.

Exoneree health insurance bill clears Senate

Via AP:

People who are wrongfully convicted and incarcerated for several years would be able to get group health insurance coverage from the county where they were convicted under a bill passed Friday by the Senate.

The measure by Sen. Rodney Ellis, D-Houston, would entitle those exonerated from their convictions to pay the same premiums as regular county employees and obtain health coverage for a period equal to the time they were wrongfully imprisoned and on parole.

More than 40 exonerees — including 25 from Dallas County — would be affected by the legislation, which the Texas Association of Counties opposes. The measure now heads to the House.

Criminal record barrier to job seeking for 21% of Americans

Reports the New York Times, "The pool of Americans seeking jobs includes more people with criminal histories than ever before, a legacy in part of stiffer sentencing and increased enforcement for nonviolent crimes like drug offenses, criminal justice experts said. And each year, more than 700,000 people are released from state and federal prisons, a total that is expected to grow as states try to reduce the fiscal burden of their overcrowded penal institutions."

Astonishingly, "Almost 65 million Americans have some type of criminal record, either for an arrest or a conviction, according to a recent report by the National Employment Law Project, whose policy co-director, Maurice Emsellem, says that the figure is probably an underestimate." That's more than 21% of the US population, according to the 2010 Census. I'd never seen that figure calculated before.

The story adds that "Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers." The story also mentions recent research analyzing long-term re-offense rates, such as the analysis discussed on Grits here,  citing:

several new studies by criminologists are beginning to turn that assumption on its head, providing a far more encouraging picture of actual risks posed to employers by those whose crimes lie well in the past. Called “redemption research,” the studies find that the risk that an ex-offender will be re-arrested decreases substantially over time, eventually becoming indistinguishable from that of someone of the same age with no record.

For first-time offenders, this point of “redemption” is reached 7 to 10 years after a conviction. For older first offenders, it comes significantly earlier. For some crimes and for offenders with multiple prior convictions, redemption takes considerably longer.

The studies have been cited in some lawsuits over criminal background checks. Taken collectively, they indicate that “it is no longer accurate to say that individuals with criminal records are always a higher risk than individuals without a criminal record,” said Shawn Bushway, an associate professor of criminal justice at the University at Albany, one of several researchers who have conducted redemption studies.

RELATED: Licensing strictures boost ex-felon unemployment.

Let's Roll!

Shannon Edmonds at the Texas District and County Attorneys Association posted this picture to their user forum and asked readers to suggest captions:

Shannon notes that the photo was connected to a story titled "Segway pushing its product for police." The best caption suggested so far IMO was "Governor Perry's Elite Coyote Suppression Team Clears his Jogging Route" followed, arguably, by "Let's roll!" Perhaps you can top it? Try in the comments.

Suit targets poor conditions at Harlingen muni jail

In Harlingen, according to the SA Express News:

For minor offenses, police here jailed poor people for a week or more without adequate food, showers or medication, the South Texas Civil Rights Project alleged in a lawsuit against the city Tuesday.

The complaint was filed in federal court in Brownsville on behalf of two plaintiffs who say they were hospitalized for deplorable conditions, including a bologna sandwich that gave one food poisoning.

The suit raises once again the lack of regulation at Texas municipal jails:

Adan Munoz, executive director of the Texas Commission on Jail Standards, said the state regulatory agency had no authority over city jails.

“City jails are just kind of out there,” he said.

Munoz said an interim study regarding state oversight of municipal jails got set aside as Austin lawmakers turned their focus to the statewide budget gap.

These allegations come on the heels of the TX Court of Criminal Appeals overturning a conviction on "actual innocence" grounds regarding false allegations by a jailer against an inmate at the Brownsville city jail. These Cameron County lockups are virtual poster children for the need to regulate municipal jails.

RELATED: Scandalous state of city jails unlikely to change any time soon.

Bad homeland security bill gets much-needed makover; still ugly

Forrest Wilder at the Texas Observer says that SB 9, Sen. Tommy Williams' homeland security bill, looks quite a bit less Big-Brotherish as it left the Texas Senate, which "deleted or moderated the most objectionable, civil liberties-shattering provisions." Wilder thusly summarized the changes:

• Deleted - Authorization for police officers to install GPS tracking devices on vehicles without a court order;
  
  
• Deleted - Drivers license and insurance checkpoints that critics said would function as de facto immigration checkpoints;
  
  
• Modified - In the original, a peace officer was required to check the immigration status of someone they were arresting. Law enforcement groups expressed concern that such a mandate would take up ungodly amounts of time. Immigrant advocates worried that individual officers wouldn't necessarily have the requisite expertise. Now, the status-check happens at the jail under the federal Secure Communities Initiative, a controversial program that has rapidly transitioned being voluntary to mandatory.
  
  Sen. Jose Rodriguez, a former El Paso county attorney, voted against SB 9, in part because of Secure Communitites' disturbing record of snatching up legal residents and even citizens. "Nationwide, there have been thousands of cases of U.S. citizens being detained as undocumented immigrants and tens of thousands of immigrants apprehended without a criminal conviction," he said in a statement after the vote. "This is a broken system and not one we should mandate."
  
  
•  Modified - The DPS pilot project for automated license plate readers (background here) remains in the bill, albeit with some constraints. Sen. Kirk Watson, an Austin Democrat, got Williams to accept changes that will require that all data collected from the devices be deleted after one year. Any agreements to share the data beyond DPS would be subject to the Texas Public Information Act, though the data itself would be unavailable to the public.
  
  "It's a very useful tool for law enforcement," said Williams, "but I'm also senstiive that we don't want Big Brother looking over our shoulder any more than we have to."

Regarding the license plate readers, Wilder mentioned that "Grits has opined that the Watson provisions are 'an improvement... but still far from satisfying gruel we're being forced to swallow.'" See also coverage from the Texas Tribune, though Wilder's story did a better job of placing the compromise bill in context from the breathtakingly sweeping filed version.

Notably, SB 9 pays for its multi-million dollar costs by doubling a fee that the Lege is already diverting from its "dedicated" source. According to the fiscal note, SB 9 would raise almost $90 million per year by requiring "an insurer to pay a fee of $2, rather than $1, multiplied by the total number of motor vehicle years of insurance for policies delivered, issued, or renewed. The bill would authorize fifty percent of each fee to be appropriated only to the Automobile Burglary and Theft Prevention Authority." So this is bad fiscal policy as well as troubling from a civil liberties perspective. I don't see one thing in this bill that's actually, presently needed.

Lege diverting 'dedicated' criminal justice fees to balance budget

One regrettable trend emerging in the 82nd Texas Legislature is to divert funds from dedicated fees - both in the criminal justice arena and elsewhere - to help certify the budget. State Sen. Rodney Ellis has criticized SB 1582, which raids money designated for juror pay and withholds grants from the Task Force on Indigent Defense to counties. The bill passed out of the Texas Senate yesterday. According to Ellis' press release:

In 2005, Texas ranked dead last in the nation in what it paid jurors, who had not received a pay raise since 1954.  To boost jury participation, the legislature added an additional $4 fee on criminal convictions, and used the fee to provide Texas counties funds to raise jury pay to $40 a day.  In addition, any money raised above the level to fund the jury pay raise was dedicated to the Texas Fair Defense Fund to provide indigent criminal defense.
 
SB 1582 essentially eliminates the juror pay raise and uses that money to certify the budget.  SB 1582 also takes the millions in the Fair Defense Account and uses it to balance the budget.
 
"This is a rip-off," said Ellis.  "It took years to force this state to make these small but vital justice reforms and now, in one fell swoop, we are destroying any progress we've made."
 
Furthermore, in CSHB 1, the Task Force on Indigent Defense is now granted a "sum certain appropriation" rather than "estimated budget authority."  This seemingly minor change significantly reduces the amount of money available for indigent defense grants to Texas counties. It is estimated that $16.6 million will accrue in the Fair Defense Account over the coming biennium to balance the budget rather than be spent on grants to the counties for indigent defense, even though the Account is funded through a series of court-related fees specifically put in place solely to fund indigent defense.
 
"This is yet another example of this legislature taking money from those at the bottom while protecting those at the top," said Ellis.  "We used the exact same fee we are going to raid under this bill--this $4 fee on convictions--to give judges a pay raise that same session.   Are we going to reduce the salaries of our judges this session? No." 
 
"At some point we must stop the smoke and mirrors, stop robbing Peter to pay Paul and address the structural challenges facing this state," Ellis said.

Peggy Fikac at the Houston Chronicle has a story about the bill, quoting state Sen. Kirk Watson criticizing the practice of gather fees under a pretext that they're designated for a specific purpose, only to divert funds after the fact:

Sen. Kirk Watson, D-Austin, also questioned the practice of keeping large unspent balances from fees to help balance the budget. If the revenue is not allocated for a fee's intended purpose, it can be used instead to allow more spending elsewhere.

An estimated $3.7 billion in balances is used in this way in the current budget, and Watson said that would rise to an estimated $4 billion or more in the budget proposal.

He called it "a growing bad practice of financial management, which is that we tell the public we're raising a fee or a tax for a specific purpose, but it gets used to balance the budget in other ways."

Another great example of what he's talking about may be found in the plan to cut funding for local 911 emergency lines while keeping the dedicated fee on cell phones and landlines that pay for it. And of course, on a much larger scale, it's why Texas hospitals aren't getting most of the money "dedicated" for trauma centers from the Driver Responsibility surcharge.

The same thing is happening with the Texas Auto Burglary Theft and Prevention Authority, which is funded by a $1 fee on every insurance policy. The Corpus Christi Caller Times reports on plans for "keeping the $1 charge but doing away with the task forces statewide. The state would use the money to help plug a budget shortfall of billions of dollars." As Grits has argued previously, cutting grants for investigating auto thefts and burglaries is especially absurd in combination with a proposed penalty enhancement to the crime of burglary of a vehicle. Clearance rates for vehicle burglaries are already minuscule, so it makes no sense at all to slash investigative resources but INCREASE spending on punishment of the handful of offenders caught. Adding insult to injury, SB 9, which just passed the Senate yesterday, would double that theft prevention fee and divert half the increase to other priorities. 

These fees and surcharges were all created for one reason: The Legislature wanted to pay for this or that program but was unwilling to raise taxes. So they created supposedly "dedicated" fees to generate cash that they pretend are not tax increases. But now that dedicated money is becoming just another General Revenue source, making the fig leaf that fees aren't taxes that much more implausible. At this point, it's become a distinction without a difference.

TPPF: Reinvest savings from juvie corrections merger in community-based programs

Marc Levin and Vikrant Reddy from the Texas Public Policy Foundation have an op ed out today encouraging combination of the Texas Youth Commission and Juvenile Probation Commission, with the caveat that part of the savings should be reallocated to community-based diversion programs. The legislation, SB 653, is on the Major State calendar in the House today. The column opens:

Legislation that sunsets Texas’ two juvenile justice agencies could bring a brighter future for the state’s most troubled youths. The Sunset Commission has advised that the Legislature consolidate the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC).

On April 13, the Senate passed Senate Bill 653 which implements the broad contours of the Sunset Commission’s recommendation.

Now, Texas House of Representatives members must seize the opportunity to further strengthen this legislation by reallocating part of the savings, enhancing community-based programs and incorporating outcome-oriented performance measures to assess results.

The consolidation of the juvenile agencies should not be considered a public policy “experiment,” but rather a continuation of proven reforms enacted in 2007 and 2009.

The principle behind those prior reforms – and the principle embodied in Sunset’s consolidation recommendation – is that juvenile justice must shift its emphasis from incarceration to rehabilitation, emphasizing education, employment, and victims’ restitution.

Studies have found that re-offending rates are lower when youths are kept in their communities, closer to their families and social supports such as schools and churches.

In most instances, non-residential programs including drug courts, victim-offender mediation, and probation supervision and treatment are most cost-effective.

For some of the most serious offenders, residential settings near major metropolitan areas from where most youth offenders come can both protect public safety and maintain contacts with the youth’s family which is critical to successful reentry into society.

The results of moving towards community-based solutions for holding youths accountable speak for themselves.

RELATED: See this fact sheet on the merger legislation from TPPF.

UPDATE: The merger bill passed the Texas House with a number of amendments. Rep. Sylvester Turner opposed the bill, arguing that the agencies are working well and that the bill creates a "super agency" that because of its structure may shift costs down to the counties. The House, however, sided with Reps Madden and McClendon and approved the legislation on a voice vote.

Houston loses state rep over prisoner census count

If prisoners were counted in their home counties instead of the counties where they're incarcerated, Houston would have 25 instead of 24 state represenatives, it was revealed during yesterday's House redistricting debate. Reported the Houston Chronicle:

More than 60,000 Houstonians are living in state prisons and were not counted as part of Houston's population, Rep. Harold Dutton, D-Houston, complained to House Redistricting Chair Burt Solomons, R-Carrollton.

Had they been counted, Houston would definitely get 25 state representatives - instead of the 24 as proposed under the current redistricting map.

The problem is, they're not getting representation in those other counties, either. A report (pdf) from the House Research Organization last fall revealed that:

Some Texas counties exclude inmates when establishing county commissioner precincts. Anderson, Bee, Brazos, Coryell, Childress, Concho, Dawson, Grimes, Karnes, Madison, Mitchell, Pecos, Walker, and Wood counties all have excluded inmate populations when establishing county commissioner, justice of the peace, and constable precincts, according to studies in March and June by Prisoners of the Census. In Anderson and Concho counties, excluding inmate populations prevented the creation of precincts that would have consisted entirely of inmates.

IMO counties shouldn't get to have it both ways. Counties that exclude inmates from their  commissioner precincts should not benefit from those same inmates for representation at the statehouse. Either they're your constituents or they're not.

Senate bills encourage retention, testing of old rape kits, DNA evidence

A couple of bills were heard in the Senate recently related to evidence retention and testing old rape kits that would help solve cold cases and exonerate innocent people who were falsely convicted.

Last week SB 1616 by Sen. Royce West, a bill originating with Dallas County DA Craig Watkins' office, passed out of the Senate Criminal Justice Committee. It would have DPS create rules that establish "statewide, uniform guidelines to be used in the collection, retention, and storage" of biological evidence. Regular readers know that the reason Dallas has seen so many DNA exonerations is that they actually kept old biological evidence when other counties destroyed it. This bill would create standards for "collection, storage, preservation, retrieval, and destruction of biological evidence," according to the bill analysis, that would force other jurisdictions to do the same. (See related coverage from the SA Express-News.)

Relatedly, yesterday the same committee heard SB 1636 by Sen. Wendy Davis, which would mandate the Department of Public Safety, if resources are available (and they are not) to eliminate the backlog of untested rape kits sitting around at police departments and crime labs around the state. The Texas Tribune's Becca Aaronson reported that:

According to a fiscal analysis of the bill, Houston, Dallas, and San Antonio alone have more than 22,000 untested rape kits.

“It sure does sound like an awful, broken system to me,” said Criminal Justice Committee Chairman Sen. John Whitmire, D-Houston, expressing concern for women who are sexually assaulted and then undergo the invasive process of submitting biological evidence, only to find out it won't be tested.

But DPS estimates it would cost Texas more than $11 million to outsource testing to crime labs with enough personnel to process all of the rape kits.

DPS last fall received a $2.4 million grant from the Department of Justice for reduction of its DNA testing backlog, including old rape kits. According to the grant request (which Grits recently obtained under the Public Information Act), there's a roughly 10-month wait at DPS labs for DNA testing. DPS received 7,076 DNA samples for testing in 2009, a 23% increase from the year before, and predicted 8,500 samples would be submitted in 2010, an additional 21% increase. That's quite a two-year growth rate, and the more DNA evidence is used for property crimes (about 35% of DPS' current backlog), the larger that number will grow The DOJ grant pays for overtime for crime lab workers to perform extra tests, which means it actually might be cheaper (and allow more tests to be performed) to outsource some of the backlog to private labs.

DPS labs can process about 518 DNA cases per month, according to their grant request. The agency has 75 DNA technicians who can each process about 16.4 samples per month. Crime lab director Pat Johnson told the Senate committee that his people were working at capacity and if they were required to test old rape kits, they would have to outsource the task at roughly $1,000 a pop.

Someone from San Antonio PD testified that forcing crime labs to test all the evidence would be a tremendous unfunded mandate. But in the discussion it became clear there are no teeth to the testing requirement - if money isn't available it won't happen, which makes the bill more of a symbolic statement than a substantive solution to rape kit backlogs.

In Fort Worth, according to testimony, police tested all their old rape kits over the last seven years and identified five serial rapists - i.e., people who were already in the federal CODIS database of DNA profiles for another rape. Nobody mentioned whether those five were already convicted, imprisoned, etc., but clearly the identification of potential serial rapists is the main benefit from testing rape kits in cases where they weren't needed as evidence in the instant case. Otherwise, law enforcement interests testified, often the rape kit only proves a sex act occurred, but cannot prove whether there was consent or speak to other issues affecting the defendant's culpability.

I was at the hearing testifying on behalf of the Innocence Project of Texas (IPOT), and suggested to the committee that they consider following the model Craig Watkins employed in Dallas, partnering with IPOT to vet cases one-by-one to determine if testing is needed instead of slogging through testing every last sample. That model would let the state get a lot more bang for the buck from the federal grant resources available to DPS and help prioritize which tests should happen first.

Speaking of which, the US Department of Justice recently gave a separate grant to the Houston PD to study causes of rape-kit backlogs, research which will hopefully help develop protocols for how to prioritize testing of old rape kits with limited resources. Once that research is done, it may suggest ways to handle large rape-kit backlogs in the absence of sufficient funds to test every sample. Too bad nobody has performed such an assessment before now.

Newest TX jail proposal may be financed by US Ag Department

The latest jail building project in Texas may be financed by the US Department of Agriculture, strangely enough, if Coryell County (Gatesville) accepts a $22 million loan the USDA offered them this week. The Killeen Daily Herald reported:

The Coryell County Commissioners Court voted to accept conditions for a $21.9 million loan to build a new jail and law enforcement center, but the conditions are not binding and acceptance of the loan will ultimately be decided by voters in November.

The U.S. Department of Agriculture Rural Development Farm Service Agency is offering the loan in response to an application the county filed in September, hoping to get a grant.

The interest rate for the loan will be either 4.6 percent, or the rate at the time of loan closing if it is lower. The county will repay the loan over 40 years.

Renovating the current 92-bed capacity jail or building a bigger facility altogether has been the topic of much discussion by Coryell County commissioners since 2010, when a report from the Texas Commission of Jail Standards projected the facility would need no fewer than 144 beds daily by 2027 to house inmates.

That said, some locals seem to think the voters won't go for it because repaying the loan would require a tax increase:

County Sheriff Johnny Burks pointed out accepting the loan would mean taxes would increase.

County residents Ron Poston and Norm Whitelend said they didn't think voters would approve the measure in an effort to keep taxes down.

Still, Commissioner Daren Moore said the court should move forward.

"I think we have to do something," he said. "I think it would be irresponsible for us to not at least move forward and let the voters decide where they want us to go."

The court unanimously approved the measure, which gives it one year to meet the conditions outlined in the letter and does not obligate it to do anything further. [County Judge John] Firth said if the court wanted to back out before April 2012, it could do so.

I find it bizarre that the federal government is financing local jails in any event, but it's particularly odd for such funds to come from the Department of Agriculture as opposed to the Justice Department or some other thematically related agency. What's not surprising is that local voters might reject new jail construction out of concern over taxes, which has become a recurring theme in such county-level debates.

RELATED: US Department of Agriculture should stay out of the jail building business

SCOTUS seems indifferent to prosecutorial misconduct

UC-Irvine Law School Dean Erwin Chemerinsky has an excellent column at the National Law Journal scolding the US Supreme Court for its seeming oblivion to the harm from prosecutorial misconduct. It opens:

The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct. Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels. For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.

There's no law granting immunity to prosecutors from lawsuits, it's a doctrine generated via judicial activism without any statutory basis. Indeed, I've never understood why courts give prosecutors "absolute" immunity when police officers only have "qualified" immunity. Many incidents that get police sued stem from split-second decisions - shootings, questionable searches, etc. - while prosecutors have much more time to deliberate over their judgments. Why should a prosecutor who withholds exculpatory evidence for months or years have less liability than a police officer who had to make a decision in the blink of an eye?

The disturbing result, Chemerinsky argues, is that "the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system." You could say the same thing about Texas courts, and the state bar, and just about everybody else whose job it should be to hold prosecutors accountable for misconduct.

MORE: From Paul Kennedy.

See related Grits posts:

• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?

'Jails brace for influx of mentally ill'

The title of this post is the headline of a lengthy Houston Chronicle feature today on the effects of proposed budget cuts to mental health funding on county jails. The story opens:

Dr. Steven B. Schnee, executive director of the Mental Health Mental Retardation Authority of Harris County, offered up an extended metaphor one day recently to illustrate the consequences of what he considers catastrophic cuts in state funding for mental health services. Schnee is a licensed psychologist whose agency assists more than 45,000 county residents annually through a variety of community-based programs.

"It's like saying, we're short money — and we are short money - so we're not going to put oil in our car. Or we're just going to put a little bit of oil in the car," he said, sitting in his fifth-floor office on the Southwest Freeway. "But when the engine blows up and we're spending thousands of dollars on the engine - because now the car doesn't work - we go 'Oh, my goodness! What happened here?' "

A dozen miles to the northeast, in downtown Houston, the man who runs the largest mental health facility in the state was pondering the same possibility. It's the Harris County Jail, where, on any given day, approximately a quarter of the 10,000 or so inmates receive constitutionally required mental health services for their diagnosable psychiatric conditions. Sheriff Adrian Garcia expects the numbers to grow.

"The cuts that we're hearing about are incredible," he said. "It's almost as if these people were invisible, as if there were no awareness of the problem within communities across the state of Texas, and particularly in Harris County."

See prior, related Grits coverage:

• Assessing local impacts of proposed mental health cuts
• Few bills proposed at Lege to remedy statewide competency restoration crisis
• Budget cuts would force police officers, jails to care for mentally ill
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• Competency restoration often best performed on outpatient basis 
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails
• When I was sick, did you imprison me?

Law enforcement for Pre-K funding

Given Texas' ongoing debates over budget priorities, I was interested to see this press release:

More than 600 police chiefs, sheriffs, prosecutors and other law enforcement leaders in all 50 states delivered a letter to Congress, urging them to reject proposed cuts to early care and education programs as they continue intense negotiations over the federal budget. In the letter, the law enforcement leaders said that they support high-quality early education as a critical strategy to reduce crime, lower prison costs and save taxpayers money. Click here to view the letter.

The national anti-crime organization Fight Crime: Invest in Kids is sponsoring a nationwide law enforcement campaign to promote support for high-quality early childhood education. Law enforcement leaders across the country are signaling their support during visits to early learning programs.

The letter to Congress from law enforcement leaders comes as the National Institute of Early Education Research (NIEER)--a leading research organization on early learning--prepares to release a comprehensive state-by-state survey of pre-kindergarten programs on Tuesday. The NIEER report is expected to show that severe cuts to some state preschool programs has caused thousands of children to lose early care and education services. (For more information, go to www.nieer.org.)

Border prosecution pork so far remains in draft budgets

Jared Janes at the Brownsville Herald reported earlier this month on grants from the Governor to a multi-jurisdictional "border prosecution unit," which I'd not heard about previously, spanning the 16 counties along the Rio Grande ("Prosecutors pool resources to combat border crimes," April 3). The BPU is a:

team of 16 state prosecutors was established in 2009 to better handle and coordinate prosecution of border crimes. Funded by a $4 million grant from Gov. Rick Perry’s office, the border prosecution unit, or BPU, is a network of assistant district attorneys who collaborate with the Texas Department of Public Safety to develop investigations into organized crime along the border.

In its first year of existence, the BPU prosecuted 2,312 cases, leading to 1,304 convictions on border crimes involving weapons, drugs and human trafficking. But the task force’s leaders say those convictions are only the beginning as they delve into time-intensive investigations of criminal enterprises. And those investigations are likely to continue, with the $4 million grant — along with a host of other border security programs — being funded to previous levels in draft budgets despite the state’s financial straits.

[Cameron County Assistant District Attorney Ismael] Hinojosa, whose work as Cameron County’s border prosecutor resulted in almost 400 convictions the first year, said the BPU forged inter-jurisdictional cooperation in a "critical stage in the fight against the Mexican drug trafficking organizations."

Those prosecution and conviction numbers seem awfully high to me, given that the border region has the lowest crime rate of anywhere in the state, so I'd be interested to learn what's included. With all the cuts being made in education, mental health, nursing homes, etc., it's remarkable that this program so far remains funded. It's hard to tell without knowing more whether it's an essential strategy for going after drug cartels or just more Prosecutor Pork. Paying prosecutors is historically a county responsibility and lots of DA's offices would like to have the state pay for an extra ADA; which isn't to say the money is being spent on laudable activities. In El Paso, the grants are being used to investigate prison/street gang members of Barrio Azteca who have allegedly been acting as hit-men in Juarez and by some estimates may be responsible for half the deaths there. Elsewhere, prosecutors are working cases developed by DPS:

While the grant provides at least one prosecutor in each jurisdiction, the BPU blurs the jurisdictional lines to allow district attorneys access to others if needed.

Hidalgo County District Attorney Rene Guerra said that cooperation between individual prosecutors and DPS is the BPU’s hallmark, encouraging joint operations that recognize criminal activities often are spread across multiple counties. In Hidalgo County, Guerra’s border prosecutor frequently assists the three DPS divisions — the Texas Highway Patrol, the Texas Rangers and the Criminal Investigations Division — with legal expertise in developing cases.

Grits filed an open records request with the Governor's office for documentation related to this grant, so perhaps we'll have more detail on the BPU soon. In the meantime, Janes' article was instructive, though mostly voicing prosecutors' approbation for the program.

False alarms are the "single greatest waste of law enforcement resources" in America, but political third rail

Dallas mayoral candidate and former Dallas police chief David Kunkle told the Dallas Observer that "verified response" for private burglar alarms is "good public policy and bad politics." He won't support the idea, not because he doesn't think it's a good one, but because he fears a tuff-on-crime backlash during a contested mayoral campaign. While Kunkle was police chief, Dallas briefly implemented verified response for business burglar alarms. As Merten wrote at the time, "The number of false alarms is staggering -- 97 percent -- and Kunkle compared it to having a car that would only start three times out of 100 and on those three times, it would take so long that you’d miss your appointments." That's about right: It's why Grits has repeatedly argued for sending the clunker to the junk heap.

Dallas originally considered verified response for residential alarms as well, which is where the really big savings would come. But alarm companies rallied their customers to preserve the subsidy, and ultimately those companies and their customers convinced the City Council to reverse course on commercial alarms as well. Merten notes that the Dallas City Council repealed the program one week after Chief Kunkle gave them a presentation urging its continuation, and I was able to locate that briefing (pdf) online. Here are some of the data the Chief used at the time to argue for the program:

• In 2004 the Police Department received almost 62,000 burglar alarms
• Of these, 97.2% or about 60,100 were false
• Responding to these alarms required the time of approximately 45 Dallas Police officers
• This false alarm rate was consistent with findings across the nation
• In Dallas, 86% of the citizens and businesses without alarms are subsidizing alarm responses for 14% who have alarms
• False alarm dispatches are the single greatest waste of law enforcement resources in the U.S.
• 2004 police response time for priority 3 calls was about 32 minutes

In the first year after implementation, business burglaries in Dallas declined by about .6%, according to Kunkle's briefing, meaning in aggregate the effect on business burglaries was a wash. However, DPD responded to 25,949 fewer alarms, or a 45% decrease, freeing up the equivalent of 24 full-time officers to focus on actual crimes. Given that result, with so many departments cutting officers, you'd think these days more cities would be leaping to implement verified response to maintain levels of police coverage with fewer cops on patrol.

But as Kunkle says, this is an instance where tuff-on-crime politics interferes with good public policy and common sense. The small minority being subsidized by police responses to alarms are extremely vocal and well-organized by alarm companies, who have lists with contact info of concerned customers that would be the envy of any political consultant. Plus, those with alarms almost by definition are relatively wealthier - after all, they got an alarm because they have stuff to steal - and therefore also more politically influential. By contrast, the 86% of Dallasites without burglar alarms who're footing most of the bill are unorganized, unaware of the subsidy, and may not even perceive they have a dog in the fight.

That calculus may and should change in an era of budget cuts and law-enforcement layoffs. Verified response would allow agencies to reduce their number of officers without reducing meaningful police coverage. And all the sky-is-falling rhetoric never seems to pan out as predicted in cities where verified response is implemented. I hear many, many politicians talk about cutting "waste" in government, so why are so many too cowardly to confront the "single greatest waste of law enforcement resources in the U.S."?

Easter full of criminal justice themes

Easter is strikingly filled with criminal justice themes, isn't it? The Christian religion was essentially founded on a repudiation of Roman capital punishment. Easter celebrates the sinless Man-God killed for His beliefs who triumphed over the grave, mooting, even while respecting to the end, the earth-bound laws that condemned Him. Jesus, a blameless man executed, is the all-time poster child for the innocence movement. Corrupt and biased prosecutors prevailed in His case because of a judge's personal indifference and deference to the mob. Christ's betrayal by Judas was the archetype cementing into Christian values a lingering distrust of snitches and informants. Romans accused the disciples of grave robbery. St. Peter committed assault with a deadly weapon in the Garden of Gethsemane then thrice lied about his identity to avoid arrest. And taken as a whole, the passion story documents Jesus' arrest, trial, and execution all taking place in an incredibly short span, as though criminal convictions could be obtained as quickly in real life as on an episode of Law & Order.

Christmas is a story about family. Easter is a story about a wrongful criminal conviction, the misapplication of the death penalty, the overweening power of the state, and the irrepressible urge of humanity to resist it.

Happy Easter, gentle readers. Enjoy this beautiful day.

Hospitals: Driver Responsibility surcharge an unreliable funding source

Regular readers know this blog would like to see the Driver Responsibility surcharge abolished, but in the current budget environment, all that's actually moving in the Texas Legislature is a more modest bill to require DPS to implement incentive rules that are already in the Administrative Code. The main reason killing the surcharge is so difficult: It raises about $3 million per week, half of which goes to the state General Revenue fund and half of which supposedly goes to trauma hospitals. Except most of the money for trauma centers never makes it there. In the Houston Chronicle today, there's an editorial from trauma hospital officials related to the Driver Responsibility Program that raises an interesting question: Why is it that most of the money that's supposed to go to trauma centers is sitting in a state bank account instead of paying for hospital care? From the op/ed:

Since 1993, the Designated Trauma Facility and EMS fund has helped offset uncompensated trauma care costs in designated trauma facilities. Since 2004, a portion of the proceeds from the Driver Responsibility Program have been the main source of funding. Unfortunately, since 2006, only a portion of the funds collected have been appropriated and distributed. 

And, by the end of the current biennium, the fund is projected to have collected some $300 million not appropriated to support the state's safety-net hospitals like UTMB, Memorial Hermann and Ben Taub.

This is unacceptable. Having a statewide trauma system benefits everyone, and the state should support this resource with funds intended for that purpose. Simply put, we must strengthen the state's trauma system safety net. Otherwise, we run the serious risk of stretching it too thinly and reducing survival rates for critically injured patients in the region. Left unchecked, the safety net that we all depend on when minutes count will fail.

In the scheme of things, trauma centers have done at least as much to reduce murder rates and drunk driving deaths as police and criminal laws in the last two decades, just because when bad things happen people are less likely to die if they make it quickly to a Level 1 trauma center. So I strongly agree they need to be funded by a reliable revenue source. But the Driver Responsibility surcharge has not turned out to be very reliable, bringing in hundreds of millions less to hospitals than was promised by supporters and the Governor in 2003 when it first passed. There's about a 65% non-payment rate, and of course, of the money designated for hospitals, "only a portion of the funds collected have been appropriated and distributed." Becca Aaronson at the Texas Tribune earlier this year mentioned this little-discussed aspect of the DRP - the fact that most of the money designated for hospitals doesn't actually get there:

In initial budget proposals, lawmakers have resisted alloting the fund's full amount for trauma care because it helps pad the state's general revenue account.

“It’s sort of a savings account for the state,” said Dinah Welsh, CEO of Texas EMS Trauma and Acute Care Foundation. Because the funds are dedicated, they can’t be appropriated for any other purpose — so if they’re not marked for trauma care, “they sit in an account sort of in the sky," Welsh said. The Legislature appropriated $150 million last biennium for trauma care from the dedicated DRP fund, she said, but an additional $380 million stayed in the DRP account.

Why leave that much money undistributed? ¿Quien sabe? If I had to guess, that money is likely being used to draw down some sort of federal matching funds. Or else I can think of no reason why nearly half a billion dollars would be left in an account undistributed in these tight budget times. That money should be allocated to hospitals in the current budget, or somebody should publicly explain why not.

It should be said: Despite my opposition to the DRP, I want trauma centers funded as much as the next guy. When my 12-year old niece died in a terrible church bus accident along with another boy a couple of years ago, a trauma center in Mississippi kept her alive for three weeks before she gave up the ghost, and saved the lives of many other badly injured children. When a school or church bus turns over, when somebody gets shot or is in a terrible car accident, of course I want the hospitals to have the resources they need. But that's what taxes are for.

Grits wholly agrees with the hospital editorial writers that "the state should support [trauma centers] with funds intended for that purpose," and I see no valid reason to withhold their money. But the problem is the Driver Responsibility surcharge has too many "purposes"; it's a servant with too many masters. Its purpose is partially to fund trauma centers, in theory, but only half the money goes to hospitals, and they don't get most of what's designated for them. The $380 million hospitals didn't get is serving some purpose we can't at the moment divulge. The other half of the money goes to General Revenue, which is functionally the main purpose of the surcharge at this point, since the hospital money isn't all getting distributed.

And of course the DRP's original, stated purpose - at which it's miserably failed - was to encourage drivers to purchase liability insurance, renew their licenses, and to discourage DWI. Instead, the surcharge has caused about 2 million drivers to lose their licenses for non-payment, with more than 1.2 million remaining off the license rolls to this day. That in turn leaves them ineligible for insurance, including thousands of drunk drivers. Speaking of whom, the fees are so draconian, prosecutors have begun pleading DWI charges down to things like "reckless driving" or obstructing a roadway," resulting in a 29% decline in total DWI convictions in the first four years after the surcharge was implemented, even though DWI arrests increased over the same period.

This is what a political consultant friend of mine calls an "origami" policy - fold it this way it looks like one thing, fold it that, another. Williamson County District Attorney John Bradley has called it "taxation masquerading as a public safety initiative." The DRP's weakness is a lack of focus; in trying to be all things to all people, the surcharge has failed at every goal set out for it, from funding hospitals to punishing DWIs and reducing the number of uninsured drivers on the roadways.

Stepping back to look at the issue from 30,000 feet, at some point, Texas will need to make structural changes to finance the state healthcare system because the figures they need to cover Medicaid in the long-term will run into the many billions, making the $75 million per year or so that's supposed to go to hospitals from the DRP look like chump change. Minor adjustments to hospitals' Medicaid payment schedules would reduce their funding more than that. When those charged with rethinking healthcare finance at the Lege finally get down to envisioning a new finance model - and that may not happen until a special session or even 2-4 years from now - ideally they should subsume funding for trauma centers into whatever fix they finally come up with, creating a real dedicated fund where the money actually gets to the hospitals and just get rid of the DRP. At this point, as evidenced in today's op/ed, even the people who supposedly benefit most from the surcharge as constituted aren't happy with it.

Longview jail death likely due to withdrawals from withheld medication

Autopsy results are in regarding the Gregg County jail death discussed on Grits here - a story that's received excellent coverage from the Longview News-Journal. The "autopsy report for 33-year-old Amy Lynn Cowling revealed her cause of death was 'probable' seizure due to methadone and prescription drug withdrawals." Another News-Journal story added this pitiful tidbit: Cowling was "found unresponsive in a jail separation cell ... kneeling in a praying position beside her bed before being removed and declared dead a short time later." Further:

Investigations into the death found jail logs had been falsified, but it was unclear ... whether the check sheets were among the falsified documents.

Gregg County officials arrested two former jailers in connection with the alleged falsifications. One was said to have occurred in November, another was in relation to Cowling’s death. A total of four jailers were fired as a result of the death investigations, including the two who were arrested. Another resigned.

Cowling's death was particularly tragic because her incarceration was so pointless: A single mother of three, she was arrested Christmas Eve during a traffic stop where troopers discovered outstanding traffic warrants from 2007 in two neighboring counties. She couldn't pay so remained in jail where she died five days later.

'Grave Injustice'

The TV show 48-Hours Mystery on CBS last night ran an hour-long feature on Anthony Graves' dramatic exoneration after an heartbreaking false conviction for capital murder. Here's the text version of the story.

Grammatically Incorrect: Illusions of privacy and your iPhone

Here are a few items that merit Grits readers attention:

Creepy Big Brother Tech in your iPhone
Your iPhone and that fancy new iPad collect your location tracking data wherever you go and periodically send all the information to Apple, with law enforcement agencies accessing the information whenever they please. And they please a lot: According to one researcher, Sprint Nextel provided law enforcement agencies with its customers' (GPS) location information over 8 million times between September 2008 and October 2009."  It's not just iPhones, either: "an HTC Android phone determined its location every few seconds and transmitted the data to Google at least a few times an hour, according to a report in The Wall Street Journal." I'll try and learn more going forward about how or if this technology is being used in Texas. MORE: From Popular Mechanics, "Should cops be allowed to scan your phone during a traffic stop?"

CCA: Grammarians unwanted among judicial ranks
Mark Bennett at Defending People critiques what he describes as Humpty-Dumptyesque legal reasoning from Judge Barbara Hervey and the Court of Criminal Appeals to uphold a search warrant that the trial court and the appellate court both held invalid. At Liberty and Justice for Y'all, B.W. Barnett blogs on the same case, explaining why, henceforth, Texas judges interpreting police statements in search-warrant affidavits need no longer feel constrained by grammatical rules that might normally guide interpretation of a sentence in other contexts - say, in a sophomore high-school English class.

Psychology and the law
From In the News, Karen Franklin turns us onto a special issue on psychology and law from the journal Current Directions in Psychological Science which includes a number of articles from a who's-who authors list that may interest Grits readers (all pdfs):

• Interviewing cooperative witnesses
• Current issues ad advances in misinformation research
• Eyewitness identifcation
• Outsmarting the Liars: Toward a Cognitive Lie Detection Approach
• Suspect interviews and false confessions
• Current directions in violence risk assessment

Drawing conclusions about illusions
In part as a result of my interest in the brain science behind eyewitness identification errors, I've recently been studying optical illusions and learned that I can't see some of them. On Huevos Rancheros I published a rumination on how much of what we see comes from information filled in by our memory, a subject with implications for eyewitness testimony and perhaps other aspects of the criminal justice system.

Actual innocence case from Brownsville: Teen choked by city jailer he was falsely accused of assaulting

Here's an actual innocence case out of Brownsville that doesn't exactly fit the DNA exoneration mold, from the Courthouse News Service, which reports the story of George Alvarez, who "spent 4 years in prison based on a Brownsville Police jailer's false assault charge against him, and BPD's concealment of a video that proved his innocence." The Court of Criminal Appeals recently approved his habeas corpus writ based on "actual innocence" grounds, and he's filed a civil rights lawsuit (pdf) in federal court. (Texas has no state civil rights statute of its own comparable to Sec. 1983 in the Civil Rights Act.)

Alvarez was 17 years old, 5'4" and a slight 135 lbs. when he was jailed for allegedly burglarizing a car then attacked and choked by a 200 pound city jailer. The jailer filed an offense report claiming Alvarez attacked him seeking assault charges, but he and his superiors failed to include with the complaint exculpatory video evidence showing that was not true. The blue wall of silence continued even after the evidence was discovered during an investigation by BPD's internal affairs division, making them complicit in the coverup. What's fascinating to me is how the exculpatory evidence was ultimately discovered, a roundabout tale described in the closing paragraphs of the article:

While Alvarez was doing his time, a detainee named Jose Lopez filed a similar lawsuit against BPD "for use of excessive force by its jailers, for the withholding of video evidence, and for the filing of fabricated charges against him," according to the complaint.

Through discovery in the Lopez case, the video of Alvarez was discovered in BPD's internal affairs records, Alvarez says: "Plaintiff George Alvarez's CD was buried inside an internal affairs folder along with the Brownsville Police Report filed against plaintiff," Alvarez says. "Counsel for plaintiff noticed that a police report charging George Alvarez with felony assault was attached to the CD and also noticed that the police department withheld the CD and did not include it as part of the police report. A review of the CD quickly revealed its exculpatory content."

Alvarez filed for habeas corpus and the Texas Court of Criminal Appeals found him "'actually innocent' of the charges that sent him to prison," according to the complaint.

He seeks punitive damages from the City of Brownsville, Police Chief Carlos Garcia, Jailer Jesus Arias, Sgt. David Infante, Lt. Henry Etheridge and Cmdr. Robert Avitia.

Quite remarkable: There were not one but at least two cases where the Brownsville PD Internal Affairs division allegedly withheld exculpatory video to cover up assaults by their employees, one of them resulting in a man being sprung from prison on an "actual innocence" habeas writ. This is the biggest police department on the eastern end of the Rio Grande - how confident does this make you that BPD Internal Affairs is diligently pursuing corruption among their rank and file officers?

Here's a link to Alvarez's habeas writ before the CCA, though regrettably all the documents don't appear to be linked there as one would usually expect.

More bribe-taking cops, judges

Here's yet another South Texas police chief convicted of conspiring with drug traffickers:

Former Sullivan City Police Chief Hernan Guerra has been sentenced to 10 years in federal prison without parole for drug trafficking, United States Attorney José Angel Moreno announced yesterday. ...

Guerra was convicted of conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana in January of this year after pleading guilty to the federal drug trafficking offense. At that time, Guerra admitted that as police chief of Sullivan City, he assisted the drug traffickers cross their loads of marijuana by alerting members of the illicit organization to the location of U.S. Border Patrol units and by directing his officers to other locations to avoid their interfering with or intercepting the traffickers as they ran the loads of marijuana from the river into Sullivan City. Guerra was paid for the assistance he provided the traffickers.

And there was a similar recent incident out of Laredo, reports Channel 6 News in Webb County:

A Laredo police officer ... was sentenced to over 24 years in prison after being convicted for drug trafficking firearms offenses, prosecutors informed.

Orlando Jesus Hale, 28, a member of Laredo Police Department (LPD), was found guilty of conspiracy to possess with intent to distribute cocaine, using and carrying a firearm during and in relation to a drug trafficking crime and possessing the firearm in furtherance of the drug trafficking crime.

The law agent was sentenced to 235 months in prison for the drug trafficking offense and to a consecutive 60-month prison term for the firearms charges. Overall, Hale received a sentenced of 295 months in prison (24 years and a half).

Hale and LPD officer Pedro Martinez III conspired to escort vehicles loaded with cocaine through Laredo, Texas. The two defendants used their police radios to monitor LPD dispatch traffic during the escort.

Meanwhile, since we're on the subject of corruption, I should mention former Judge Abel Limas in Brownsville who pleaded guilty earlier this month to taking bribes in exchange for favorable rulings in criminal cases. Reported the McAllen Monitor:

Limas pleaded guilty ... to racketeering by soliciting, extorting and accepting bribes totaling at least $257,300 in exchange for giving favorable rulings. His plea, which came in the U.S. District Court for the Southern District of Texas, resulted from a federal indictment....

His alleged activities make up the most explosive corruption case here since the federal conviction in 2005 of former Cameron County Sheriff Conrado Cantu, who is now serving a term of nearly 25 years for racketeering.

The indictment against Limas, an attorney and former police officer, is the result of a years-long investigation that has brought his 35 years in law enforcement and judicial work to a screeching halt.

Most police officers and judges would never engage in such behavior, but nor do most aggressively seek out those among their colleagues who do - these cases all stemmed from investigations by outside agencies, they weren't caught by the locals' checks and balances. Anyone who thinks law-enforcement corruption is only a problem south of the river is kidding themselves, and it's not just along the border, either.

Mother of all Big Brother Bills clears committee in Senate

In a brief meeting this week the Texas Senate Transportation and Homeland Security Committee kicked out Sen. Tommy Williams SB 9, discussed here and here, which is more or less the Mother of all Big Brother legislation, at least for the 82nd session. Some of the objectionable parts of the bill were eliminated, including southbound checkpoints aimed at generating revenue from asset forfeiture, but it would still would require arresting peace officers instead of jailers to check immigration status, authorize the Department of Public Safety to use license plate readers, and let law enforcement place a GPS tracking device on your car without a warrant or other court order. Yuck, yuck, and triple-yuck.

The committee tacked on two amendments before kicking the bill out of committee, only one of which (by Sen. Kirk Watson) offered any remedies to the policy concerns on which this blog is focused: It says data from license plate readers can only be used for law enforcement purposes (as if that's some great limitation) and requires deletion of the data after one year if it's not used in criminal investigations. The amendment also makes data sharing agreements regarding information from license plate readers subject to the open records act. That's an improvement, I suppose, but still a far from satisfying gruel we're being forced to swallow. I'd rather the data be deleted immediately if license plate readers don't result in a "hit" for warrants, stolen cars, etc.. And rather than for "law enforcement purposes," IMO the information should be restricted for use in "criminal investigations." That way the focus will stay on stolen cars and fugitives instead of trolling the general public looking for people with outstanding traffic warrants.

Coverage of the bill from the Rio Grande Valley - the only media who seem to be paying much attention besides Grits and the Texas Observer - has focused mainly on the expansion of immigration checks, putting the onus on police officers in the field instead of performing the task at the county jail. I can't believe more media attention hasn't focused on the suggestion that police can put a GPS tracker on your car without a warrant! For whatever reason, and there are plenty available, I'm hopeful this bill gets tripped up somewhere along the line.

Harris County among leaders in national jail population decline

Harris County, now the third largest local jail system in the country (passing Chicago's Cook County a few years back), is one of six county jails in the United States to reduce its overall inmate population by more than 1,000 prisoners last year, which marked the second year running that the overall national county jail population declined. Says the Bureau of Justice Statistics:

The U.S. local jail inmate population has declined for the second consecutive year, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The jail population declined by 2.4 percent in the 12 months ending June 30, 2010.

The number of inmates dropped from 767,434 to 748,728. This follows a 2.3 percent decline in 2009 and is the second time the jail population has declined since BJS began the Annual Survey of Jails in 1982. In addition, the jail incarceration rate in 2010 declined to 242 jail inmates per 100,000 U.S. residents―the lowest rate since 2003.

Local jails, unlike prisons, are confinement facilities mainly operated by a local law enforcement agency. Jails typically hold inmates while they await court action or serve a sentence of one year or less.

The decline in jail inmates was mostly concentrated in large jail jurisdictions, or those holding 1,000 or more inmates. Among the 170 jail jurisdictions with 1,000 or more inmates on an average day, two-thirds reported a decline. Six jail jurisdictions reported a drop of more than 1,000 inmates, accounting for 46 percent of the decline nationwide.

Los Angeles County, Calif., with a drop of 3,007 inmates, led the nation in overall decline in its inmate population during the 12 months ending June 30, 2010. Five other jail jurisdictions reported a decline of more than 1,000 inmates during this period: Maricopa County, Ariz. (down 1,196 inmates); Orange County, Calif. (down 1,143); Philadelphia, Pa. (down 1,111); Fresno County, Calif. (down 1,105); and Harris County, Texas (down 1,096). 

With an inmate population made up mostly of pretrial defendants, there's obviously a lot more turnover at local jails than state prisons. The BJS found that jails on average see 17 admissions annually for every occupied bed reported, with local jails admitting nearly 13 million people nationally in the year ending June 30, 2010. Large jails everywhere tend to be full, while many smaller jails have extra capacity, says BJS, which jibes with the pattern in Texas to a T. Here's the full report (pdf).

Five Texas jails rank among the 50 largest: Harris County has the nation's third largest jail, behind Los Angeles and New York City. (Even at these reduced numbers, the Harris County Jail is still larger than the prison systems of 19 states.) Dallas' jail is 7th largest in the county; San Antonio's 16th; Tarrant County's 26th; and Travis County's 34th; 

The incarceration rate of 242 per 100,000 gives us a national benchmark to which we may compare Texas county incarceration rates, which are updated monthly by the Commission on Jail Standards in this report (pdf), which gives the ratio in terms of inmates per 1,000, but may be adusted. Here are the rates for a few Texas counties for comparison, in declining order:

Hudspeth: 769
Limestone: 531
Gregg: 485
Potter: 430
Ector: 427
Wichita: 425
McLenan: 385
Tom Green: 382
Smith: 382
Lubbock: 380
Jefferson 373
Galveston: 327
Cameron: 309
Nueces 295
Dallas: 287
Kaufman: 282
Brazoria: 275
Grayson: 257
Harris: 257
Bexar: 255
Bell: 245
Angelina: 244
Johnson: 242
Montgomery: 241
Travis: 238
Midland: 233
Randall: 231
Walker: 228
Hays: 217
El Paso: 205

And it should be mentioned: What's widely considered the safest city in America? Why El Paso, of course, which is one of the few counties of any size incarcerating its citizens substantially less frequently than the national average. Who'da thunk?

Cutting Houston PD budget safely means changing unproductive police polices

With layoffs of so many police and constables around the state, it's high time local law enforcement began changing policies that misallocate scarce police resources away from crime fighting and toward activities aimed more at influencing public opinion than catching criminals. In the Houston Chronicle today, James Pinkerton has a story ("626 could lose their jobs at HPD") on a plan submitted by the Houston police chief to lay off nearly two hundred officers and manymore civilians. His story opens:

Houston police Chief Charles McClelland confirmed on Thursday that he has proposed laying off 181 police officers and 445 civilians — including hundreds of jailers — who work for the department as a way of finding $39 million in savings to contend with the city's budget shortfall.

However, McClelland stressed the plan is based on the current budget numbers, and he hopes he won't have to actually lay off police officers when the budgeting process firms up next month.

"It is my goal to keep my entire workforce intact,“ McClelland said. "Clearly, this is going to be one of the most difficult budget years that this department, this city, has ever faced."

McClelland said the budget-cutting numbers change daily but noted that currently he has been asked to reduce the $685 million HPD budget by $39 million. If layoffs are necessary, city employees will receive notices around the middle of next month.

"If I had to implement a plan based on the budget number I have today, that would require me to lay off 181 classified police officers and another 445 civilians," McClelland said. "Do I believe that's going to happen? I don't know."

The chief said to avoid laying off officers he would have to find more than $7 million in additional funds, and $10 million more to avoid pink slips to the civilians. McClelland said any officer layoffs would be accomplished by seniority, a process specified by state law and a city agreement with the police union.

"It's unfortunate, except the problem is the city has not done the best job of spending the money it has," said City Council member Jolanda "Jo" Jones. "The only place to get money to pay for police is other departments. Do people want us to stop picking up the trash or not fix the pipes when they bust. It's tough, but do we want to shut down other stuff?"

Grits disagrees with Council member Jolanda Jones that the only way to pay for police cuts is to rob from other critical departments. Some of those savings could come from reallocating currently misapplied resources at the agency itself with just a few simple policy changes. Grits has argued before, and it's still true, that smart policies can boost police coverage, or at least make up for proposed staffing reductions, even in a bad economy.

First, Houston PD should embrace new discretion granted by the Legislature in 2007 to give citations for low-level misdemeanors where police are not required to make an arrest. Before Austin implemented such a policy, 37% of all arrestees entering jail were there on charges for which they could have received a citation. I haven't seen comparable data recently, but the policy has certainly contributed to Travis County's once-full jail now having extra space, easing pressure for new constructions that local officials once considered inevitable. Plus, arresting for petty misdemeanors takes officers off the street and effectively reduces the number of cops on patrol at any given time.

The second big policy change that would save millions would be to stop wasting officer time on responding to unverified burglar alarms - particularly residential ones. Implement a "verified response" system to stop subsidizing alarm companies and make them respond first instead of constantly sending out officers unnecessarily. False alarms make up 95-99% of all police responses to burglar alarms, with residential customers having a higher false alarm rate than commercial ones. Salt Lake City implemented an excellent verified response system (pdf) after realizing that false alarms made up 12% of local police calls. While I haven't seen data for Houston, at many Texas departments false burglar alarms are the number 1 type of police service call, and in all cities they're in the top three. Eliminating responses to all but verified alarms would be like putting dozens, perhaps hundreds more officers on the street without hiring one new person. A win-win all around.

A third thing Houston PD could do to stop wasting police officers' time on unproductive activities is to either eliminate so-called "consent searches" at traffic stops - where a police officer has no probable cause to search but instead asks the driver's permission - or else require written consent. According to their most recent racial profiling report, Houston PD performed a whopping 11,354 consent searches at traffic stops last year, or about 30% of all traffic-stop searches. When the City of Austin implemented a requirement to obtain written consent for traffic-stop searches, the number of consent searches plummeted by 63% in a single year; last year just 6% of APD searches at traffic stops were consent searches. But the "hit rate" - i.e., the proportion of searches that resulted in contraband - stayed almost exactly the same. Crime rates continued to decline and it didn't affect public safety at all.

Consent searches are by definition fishing expeditions because if an officer had reason to think a crime had been committed, there'd be probable cause. Many of the worst abuses come when the tactic is employed by agencies trolling the highway looking for asset forfeiture income instead of enforcing the traffic laws. Consent searches just aren't  a productive way to spend officers' time, and reducing their number eliminates an unnecessary, time consuming officer task that doesn't produce tangible results.

Those aren't the only ways to adjust police policies to save money without robbing other city priorities, but they'd be a good start and would help the county jail crowding problem to boot.

Texas House flip flops to kill Innocence Commission bill in statement vote

There was a remarkable and regrettable flip-flop today on the House floor regarding Rep. Ruth Jones McLendon's HB 115, which would create an Innocence Commission to study the causes of false convictions and recommend solutions. The Texas Tribune reported yesterday that the bill passed on second reading 82-54. But today Rep. Tryon Lewis rose in opposition, arguing rather blandly and not entirely coherently that such matters should be left to the judiciary. Reps. McLendon and Pete Gallego tried to salvage the bill, but a surprising number of House members changed their vote, with the measure going down 91-51. Here are the 32 no votes from today who voted "yes" yesterday:

Aliseda, Beck, Bohac, Brown (Fred), Christian, Creighton, Darby, Davis (John), Eissler, Geren, Hamilton, Harless, Hartnett, Hildebran, Hopson, Huberty, Hughes, Jackson (Jim), Legler, Madden, Nash, Parker, Patrick (Diane), Ritter, Sheets, Sheffield, Smith (Todd), Smithee, Torres, White, Woolley, Zerwas

I don't know the backstory behind so many members flip-flopping in a 24 hour span, but this vote turned what had been sort of a bland, study-the-problem bill into quite a statement vote - and not an encouraging statement, at that - from the Texas House of Representatives.

MORE: From the Dallas News and the SA Express News.

'Tyler Tea Party announces opposition to latest Smith County Jail Plan'

The title of this post is the headline of an extraordinary press release from the Tyler Tea Party, Inc., which further reads:

The Tyler Tea Party, Inc. has reviewed the latest jail plan released by the Smith County Commissioners Court and after reviewing the documentation the Tyler Tea Party believes that the voters should vote AGAINST in the election to be held on May 14, 2011.

The Tyler Tea Party, Inc. opposes the bond election for several reasons including a lack of transparency, timing and issues regarding the arguments used to support the plan.

On the issue of transparency, this plan fails on all fronts. This is the fifth jail proposal developed by the Smith County Commissioners Court. The court has released the least amount of supporting documentation for this plan. On the County's website, the Commissioners have released a power point presentation that is long on promise but short on details. The lack of supporting documentation, weighs against supporting the plan.

On the issue of timing, the most recent jail plan could not come at a worse time. The economy right now is terrible. The Tyler Independent School District just had a school bond election fail and talking about laying off employees. Tyler Junior College is discussing how to fund its expected short fall. Now the County is asking the voters to support a new jail even though the voters just voted against more schools. The timing of the bond election also weighs against supporting it. Additionally, in January of this year, the county was shipping only 41 defendants to other counties. This was one of the lowest numbers in years. Additionally, at this time there is a bill pending before the Texas Legislature that would allow Counties to have tent jails. These issues related to timing also weigh against supporting the plan.

Finally, the arguments being used to support the bond package are contradictory and rely heavily on assumptions that require the Commissioners Court to realize savings which they have never been able to realize in the past. The primary argument made by the Commissioners to support the bond proposal is that the County has already spent 16 million dollars in housing inmates in other counties. The Commissioners seem to be hinting that these funds could have been spent on constructing a new jail. However, this is not true. By voting no in the last 4 or 5 jail bond elections, the County has actually SAVED money by voting no. Additionally, by voting no to this bond election the County will save money. Further, the County has acknowledged spending $41.00 a day in housing inmates in other counties is less than would be spent in Smith County if a bond election passed and a new jail built. Therefore, Smith County will actually be spending more money to house inmates here than other counties and on top of that the County would have to pay for the cost of construction. This is not a conservative approach in tough economic times. Further, some of the arguments currently made do not ring true. When this plan was first announced, the Commissioners Court stated that the plan would not address all of the County's needs and some inmates might still have to be shipped. However, more recently, the County has announced that it will be able to make substantial income from renting beds to other counties. Both of these statements cannot be true. Further, the history in Smith County is that every jail built was full the day it opened. Four years ago, the County said that it had to have a minimum of 1200 new beds. Two years ago, the County said that it had to have a minimum of around 600 new beds. Now the County says it needs around 300 new beds and can make substantial money renting them out to other counties. These inconsistencies also weigh against supporting the jail plan.

After reviewing the proposal and discussing it among the members of the Tyler Tea Party, Inc. we recommend that the voters of Smith County vote AGAINST the jail bond proposal. Early voting begins May 2, 2010. The election will be held on May 14, 2011.

Their math is correct that leasing out 41 beds from a neighboring county is cheaper than building a new jail. And regular readers know that any promises of revenues from leasing beds should be disregarded as naive foolishness. Quite remarkably, my hometown voters have now rejected four proposals in three different elections since 2006 to approve new debt for jail expansion. This fifth version is radically scaled down from the others, but would still require a tax increase. In the short term, with jail populations declining and untapped alternatives for jail diversion available to local police and judges, Smith County voters are absolutely rational to reject an expensive jail expansion based purely on a cost-benefit analysis.

While I realize all the local Tea Party groups are unrelated and postions taken by one may not translate to the next, it strikes me that the Texas Tea Party movement weighing in against jail construction could be nearly as important a development as the Right on Crime movement, and perhaps a related one. Until now, I haven't heard a lot of Tea Party activists turning their "less government" mantra onto the subject of jail building, police powers, etc., but judging from the Tea Party leaders I know personally, the potential is there. Certainly that's the case as long as the conversation is focused on runaway spending. In the Tyler Morning Telegraph (which never met a jail proposal its editors didn't like), a Tea Party spokesperson declared, "'We have federal spending at unthinkable levels, the state has a $25 billion shortfall and now the county comes along saying 'we want to tax a little more,' she said. 'When does it stop?'"

When, indeed? Consider: The United States has 5% of the world population and 25% of its prisoners, with Texas vying with Louisiana for the highest incarceration rate among the 50 states, meaning Texas has more or less the highest incarceration rate on the planet. Further, Smith County has among the highest local incarceration rates of any sizable Texas county. So if the Tea Party folks in Tyler - which is virtually a global spearpoint of the mass incarceration boom - begin consistently asking "When does it stop?" when they're asked for new money for jails and police, it could be a real game changer - certainly for criminal justice politics in Texas and perhaps even nationally. For once, politicians at least in my home county, seemingly can't placate their conservative flank with yet another dose of Incarcerex: