TCJC lists reform bills approved

Here's the text of an email received today from Aña Correa at the Texas Criminal Justice Coalition regarding reform legislation supported by the group that was approved by the 82nd Texas Legislature:

The 82^nd State Legislative Session has finally come to a close, and although this has been one of the most challenging sessions we've encountered, 26 critical smart-on-crime policies have either worked their way to the Governor's desk or have already been signed into law!  Please find them below.

To download a document that describes how these policies will benefit the lives of Texans, please click here.  After the veto period ends next month, we will provide you with a more comprehensive document that explains what has actually become law, including appropriations.

We must thank the Representatives, Senators, their hard working staff, our colleagues, and the amazing TCJC team for their determination and dedication to furthering policies that will benefit all facets of society.  Although not all smart-on-crime policies made it through the legislative process, they progressed further this year than they had in previous sessions, which increases their likelihood of becoming law next session.

We must also thank you for supporting our efforts and the efforts of other advocates during the last few months.  Keep your fingers crossed that these next few weeks will bring only good things...

Effective Fair Defense and Innocence Practices

·    H.B. 27 (Representative Guillen): Relating to the payment of fines and costs by defendants who are unable to pay the fines and costs in misdemeanor cases. (Sent to the Governor) ·    H.B. 215 (Representatives Gallego, Hartnett, Giddings, Carter, and Branch): Relating to photograph and live lineup identification procedures in criminal cases. (Sent to the Governor) ·    H.B. 417 (Representatives Anchia and Jim Jackson): Relating to claims for compensation for wrongful imprisonment and group health benefits coverage for persons wrongfully imprisoned. (Sent to the Governor) ·    H.B. 1106 (Representative Johnson): Relating to providing certain information to a criminal defendant at the time the defendant is placed on deferred adjudication community supervision and at the time of the dismissal of certain proceedings against the defendant. (Sent to the Governor) ·    H.B. 1754 (Representative Gallego): Relating to the reorganization of powers and duties among agencies in this state that provide representation to indigent defendants in criminal cases and to the reorganization of funding sources for indigent defense. (Sent to the Governor) ·    S.B. 122 (Senator Ellis): Relating to postconviction forensic DNA analysis. (Sent to the Governor) ·    S.B. 1681 (Senator Ellis): Relating to the appointment of counsel and the rights of an accused and other requirements for the purposes of appellate proceedings or community supervision revocation proceedings. (Sent to the Governor)

Smart Sentencing, Probation & Parole Reforms

SENTENCING ·    H.B. 2649 (Representative Allen): Relating to the award of diligent participation credit to defendants confined in a state jail felony facility. (Sent to the Governor) DIVERSIONS ·    H.B. 1771 (Representative Madden):  Relating to the establishment of the Specialty Courts Advisory Council.(Sent to the Governor) ·    H.B. 1994 (Representative Webber): Relating to the creation of a first offender prostitution prevention program. (Sent to the Governor) PROBATION ·    H.B. 1205 (Representatives Turner, Allen, Aliseda, Eddie Rodriguez, and Gallego): Relating to the procedures for reducing or terminating community supervision and the establishment of certain time credits through which a defendant's period of community supervision is reduced. (Sent to the Governor) ·    H.B. 2624 (Representative Sheffield): Relating to procedures applicable in circumstances involving family violence or other criminal conduct and military personnel.(Sent to the Governor) ·     H.B. 3691 (Representative Gallego): Relating to community supervision and corrections departments and community justice plans. (Sent to the Governor) ·    S.B. 1055 (Senator Carona): Relating to reports concerning and the reporting of the use of certain funds by community supervision and corrections departments and to the preparation of commitment reduction plans by those departments. (Sent to the Governor) PAROLE ·    H.B. 2735 (Representative Madden): Relating to procedures for certain persons charged with an administrative violation of a condition of release from the Texas Department of Criminal Justice on parole or to mandatory supervision. (Sent to the Governor)

Re-Entry Strategies

·    H.B. 2889 (Representative Madden): Relating to the expunction of records and files relating to a person's arrest. (Sent to the Governor) ·    S.B. 144 (Senator West): Relating to allowing a person who successfully completes a term of deferred adjudication community supervision to be eligible for a pardon. (Sent to the Governor) ·    S.B. 167 (Senator West): Relating to the automatic expunction of arrest records and files after an individual receives a pardon or a grant of certain other relief with respect to the offense for which the individual was arrested. (Sent to the Governor)    ·    S.B. 198 (Senator West): Relating to exempting persons who are convicted of certain sexual offenses from registering as a sex offender in this state. (Effective on 9/1/11) ·    S.B. 462 (Senator West): Relating to the expunction of records and files relating to a person's arrest. (Sent to the Governor)

Juvenile Justice Reforms

·   H.B. 350 (Representative Walle):Relating to discharging fines and costs assessed against certain juvenile defendants through community service or tutoring. (Sent to the Governor) ·    H.B. 961 (Representative Turner): Relating to the sealing of and restricting access to juvenile records of adjudications of delinquent conduct or conduct indicating a need for supervision and to the confidentiality of records of certain misdemeanor convictions of a child. (Sent to the Governor) ·    H.B. 2015 (Representative Thompson): Relating to certain conduct indicating a need for supervision and the sealing of records related to that conduct. (Sent to the Governor) ·    S.B. 1208 (Senator Whitmire): Relating to the age until which juveniles placed on determinate sentence probation may be on probation. (Sent to the Governor) ·    S.B. 1209 (Senator Whitmire): Relating to the detention of certain juvenile offenders. (Sent to the Governor) ·    S.B. 1489 (Senator Whitmire): Relating to educational, juvenile justice, and criminal justice responses to truancy. (Sent to the Governor)

Always look on the bright side of life

Rick Casey at the Houston Chronicle rounds up some of the positive criminal justice bills that passed in the 82nd Legislature, including eyewitness ID reform, expansion of post-conviction DNA testing, the merger of juvenile justice agencies, and reform of the compensation law to let Anthony Graves and other non-habeas innocence cases receive compensation. See the full article for more. This session will be remembered mostly for the Legislature's failure to fund public schools and Medicaid, particularly once the public figures out (probably not until right after the next election, when the bills come due) that the Lege failed to fund the entire budget and the whole schtick about not tapping the "Rainy Day Fund" was a big hoax, but it's important to look on the bright side of life.

MORE: From the Austin Chronicle.

'The New Math': Prosecutors vs. the Tea Party

Shannon Edmonds at the Texas District and County Attorneys Association last week bemoaned pro-civil liberties views among Tea Party-backed politicos, worrying that legislators appear less fearful than in the past of openly criticizing prosecutors and their expansionist view of government:

This session's infusion of Tea Party sentiment in the legislative process has affected the standard law and order calculus that we use to gauge the potential fate of various bills. That "Tea Party sentiment" can be boiled down to this: "The government is the enemy. You work for the government. Do the math." Think we're kidding? Earlier this session, unsuspecting prosecutors who came to testify on a bill that would impair your budgets had to fend off a chairman who equated prosecutors with the Mafia, prompting one DA to profess surprise that he had apparently traded his white hat for a black one when he entered the Capitol. But that was just one early incident; let us share with you a more recent example.

Earlier this week, SB 1717 by Duncan/Lewis, an omnibus judicial reform bill, became what we call a "Christmas tree," so named because of all the amendments that other members tried to "hang" on it. Many of those amendments were formerly dead bills, including HB 1507 by Christian, a prosecutor-supported bill that would authorize non-lawyer JPs to issue evidentiary search warrants in smaller counties. Once offered, the amendment immediately started taking fire from several House members—urban and rural, Democrat and Republican—who expressed concerns about expansive searches, especially relating to blood draws in DWI cases. Now, there has always been some generalized resistance at the capitol to the existence of non-lawyer magistrates, but this time, the anti-government Tea Party effect crystallized that opposition into a solid voting bloc that defeated the amendment by a stunning vote of 17-121. As a result, the author of the amendment joined the ignominious "100 Club" for putting forth a matter that drew over 100 "nay" votes. We bring this to your attention because it is only one of several indications that things are changing at the state capitol. Just be glad that we passed some blood draw legislation last session, because if we hadn't, that bill would be D.O.A. this session. And that, friends, is the new legislative math for the foreseeable future.

Shannon's not the first to notice the difference between small government and Big Government conservatism: The Economist this week featured an article describing how the former approach is transforming the politics of criminal justice, including a discussion of initiatives in Texas. But it's especially notable (and heartening) that such sentiments now extend beyond budgeting to Fourth Amendment questions.

RELATED (5/31): From Ilya Somin at The Volokh Conspiracy, "The Tea Party Movement and Popular Constitutionalism."

TDCJ 'Going California'?: Prison health under-funded by nine figures

The big news in the corrections field recently has been the US Supreme Court's order for California to de-incarcerate its overstuffed prisons because of a failure to provide adequate healthcare. But Texas is setting itself up for the same type of situation with recently announced cuts to the prison health budget. Universities providing prison healthcare said prior to the 82nd Legislature that they weren't compensated for $57 million in healthcare services in the last biennium. The Legislature covered last year's shortfall in House Bill 4, but then they slashed another $71.5 million from prison healthcare over the next two years.

So if the last biennial budget was $57 million short and budget writers cut another $71.5 million without reducing the number of prisoners, the shortfall in the next two years - assuming the same levels of care - would run to $126.5 million, or around $800 per prisoner - a smaller reduction than earlier drafts of the budget but still around a 14% cut. In response, Grits commenters who work at TDCJ say thousands of clinic visits have already been canceled and operating room schedules have been reduced. While some of these services may not have been medically necessary, it's hard to imagine those levels of reductions without impacting actually needed services. As one commenter declared, "The system is clearly going California."

Even taking into account allegations by the state auditor that UTMB overcharged the state $37 million in the last biennium for services not covered under their contract, that's still nearly $90 million short of the amount needed to provide services that state officials already considered barely constitutional. (And notably, the state reimbursed universities for all the alleged overcharges, siding with UTMB over the state auditor.) A new $100 annual fee will replace $3 copays for inmates, but if there's no money in their commissary account they don't have to pay and nobody thinks it will remotely cover the shortfall. (UPDATE/CORRECTION: The bill to revamp inmate copays died unexpectedly on the last day but has been revived in the special session, reports the Statesman's Mike Ward.)

As far back as 2005, UTMB officials said the system was near the brink of failing to provide constitutional levels of care: "'We can't go any farther,' said [Dr. Ben] Raimer, a physician and former chairman of the state's Correctional Managed Health Care Committee. 'I'm certainly not going to be involved with a system that is not constitutional. . . . We're at that line now. One step across it and we're there.'" Unfortunately, the state since then has taken several more steps across that line, culminating in this year's outright draconian cuts.

Regarding future shortfalls, the Galveston Daily News claimed that HB 4, "if it becomes law, will make the Texas Department of Criminal Justice — rather than the health care institutions — responsible for the bills for treating prisoners. When the prison system runs out of money, it will have to find new sources of money or stop sending prisoners for care." However I see no such provision in the bill, which definitely covered last year's shortfall but as far as I can tell did not transfer future obligations to TDCJ. (Perhaps it's in other legislation that passed, but I can't find/haven't seen it.) And as California's example demonstrates, it's simply not an option to "stop sending prisoners for care." Whoever wrote that (the story was attributed to "staff reports") has a slim understanding of the dynamics of prison health finance.

In any event, whoever must pay, the demographics of Texas' aging prison population mean costs will likely go up, not down, since the Lege failed to enact most proposed de-incarceration initiatives this year (with a few exceptions Grits will discuss soon). The Houston Chronicle reported recently that "Elderly inmates in Texas make up 8 percent of the state's prison population, yet they account for more than 30 percent of prison hospitalization costs." In FY 2010, the state "paid $4,853 per elderly offender for care compared with $795 for inmates under 55." In that environment, it's hard to imagine the prison health budget won't enter the next biennial budget cycle somewhere in the range of $100+ million short. Or else the state simply won't provide needed care, potentially leading to California-style litigation.

OTOH, since the California litigation took 20 years to reach the point where the feds imposed a solution, perhaps this move represents an accurate political calculation that legislators can kick this can down the road for now without risking federal intervention. The day of reckoning, however, is fast approaching.

Texas budget ditches 'smart on crime' approach, reverting to old priorities

From LBB's summary (pdf) of Texas' conference committee report on the budget, here's the quite disappointing short-hand analysis of criminal justice spending from the budget conference committee, amounting to a rollback of diversion priorities funded over the last couple of sessions and a renewal Texas' old habit of prioritizing incarceration over smart-on-crime reforms. From LBB's summary:

$4.9 billion in All Funds ($4.8 billion in General Revenue Funds and General Revenue–Dedicated Funds) is provided for the incarceration of adult offenders in the Texas Department of Criminal Justice which includes housing, security, classification, food and necessities, health care, and treatment services. The bill includes a net decrease of $5.5 million in General Revenue Funds, which includes reductions compared to the 2010–11 biennium of $71.5 million for Correctional Managed Health Care services, $7.8 million for Texas Correctional Industries, $4.8 million for correctional support and other operations, $1.5 million for academic and vocational programs, and $0.5 for treatment services; and increases of $36.8 million for correctional security, $16.1 million for contract prisons, private state jails, and residential parole facilities, $15 million for contracted temporary capacity, and $12.7 million for substance abuse treatment.

An aggregate $5.5 million cut to spending on incarcerating adult offenders is a downright offensively paltry sum at a time when education and Medicaid will experience multi-billion dollar cuts. Faced with a choice between funding schools or prisons, in other words, the Texas Legislature decided it values prisons more. I see no other way to explain the outcome except as an expression of (misplaced) legislative priorities.

The budget continues Texas' longstanding pattern of prioritizing incarceration over community supervision and diversion programming. TDCJ's budget overall was cut $21.9 million, but with just $5.5 million cut from incarceration, that means community supervision got a $16.4 million haircut - less than previously anticipated, but with 80+% of TDCJ funding going to incarceration, 75% of cuts came from the smallest part of TDCJ's budget. Despite the success of much-touted de-incarceration reforms in 2007 and the resultant drop in crime, the Lege refused to further reduce costs by reducing incarceration. Frustrating; even angering.

The only bright spot on that ignominious list is the slight boost in substance abuse programming, but that amount won't be nearly enough to avoid estimated incarceration growth after Texas had successfully staved off new prison spending in recent budgets. There would be no need for the $31.5 million in private/contract prison costs if diversion programs had been expanded. Indeed, programs aimed at reducing incarceration could have mitigated the need for $36.5 million in additional "security" spending. Closing the Central Unit alone should have saved enough to cover that amount, but instead of making plans to incarcerate fewer people, the Lege chose to shift incarceration from public to private facilities with virtually no resultant savings. These priorities amount to an abandonment of the smart-on-crime reform approach for which Texas has recently received national praise.

Meanwhile, the $71.5 million cut to prison healthcare spending comes at a time when UTMB-Galveston was already claiming they couldn't afford to provide prison healthcare under their previous budget. And since we clearly won't be incarcerating fewer people (and since the prison population is aging, with health costs therefore rising), it's hard to imagine this won't result in further erosion of health services despite assertions from officials that previous levels of care were "barely" constitutional.

This budget isn't quite as damaging as cuts in 2003, but it replicates that Legislature's approach of promoting incarceration at the expense of community supervision and diversion programs. Talk is cheap; mass incarceration is not. This session the Legislature talked a good game on being "smart on crime," but looking at the resulting budget decisions, talk is all it was.

'Freedom Fighters'

Having worked now with the Innocence Project of Texas for the past two sessions, I've said several times what a humbling honor its been to work with the exonerees who've come down to the capitol over and over to lobby for criminal justice reforms. I can't over-emphasize how incredibly proud I am of these fellows, who didn't stop fighting when they got out of prison, or even when they received compensation, but kept on pressing to reform the system so the same thing wouldn't happen to others. The Texas Observer has a cover story by Michael May with the same title as this post featuring the core group that's been making it down this spring. Give it a read, and thank God before you go to bed tonight that you've never had to walk the long, hard road these fellows have traveled.

Bill would probe rape kit backlogs, encourage testing

We should have a lot more information about backlogs of untested rape kits at Texas police departments this fall thanks to a bill by Sen. Wendy Davis that passed the Lege this week and is headed to the Governor. Reports Alexa Garcia-Ditta at the Texas Observer:

Almost immediately after a woman is raped, she must endure the invasive and often humiliating process through which evidence is collected. In most cases, an investigator swabs the inside of her vagina to collect DNA for a rape kit that will help identify her assailant. Imagine, then, if that evidence was never even examined, and police stash away the untested rape kit on a shelf, never to be thought about again.

Tens of thousands of women in Texas know exactly what that’s like—having undergone the rape kit collection process only to see the evidence go untested. In fact, the state estimates some 22,000 untested kits are collecting dust on shelves in Dallas, Houston and San Antonio law enforcement offices alone.

A bill by Sen. Wendy Davis, D-Fort Worth, aims to address this significant backlog of untested rape kits. Senate Bill 1636, sponsored in the House by Rep. Ruth McClendon, D-San Antonio, passed in both chambers and will soon head to Gov. Rick Perry’s desk.

The bill requires agencies to take inventory of all untested rape kits in their offices by this coming October. If the agencies don’t have the funds or personnel to test the evidence themselves, they must send their kits to the Department of Public Safety for testing. Also, local law enforcement agencies must send new rape kits to crime labs within 30 days of collecting the evidence, and then the crime labs have to test the evidence within three months.

John Bradley out as forensic science chair

The Fort Worth Star-Telegram  reports on a coming milestone that marks a dramatic snub to Governor Rick Perry's efforts to politicize Forensic Science Commission ("Texas Forensic Science Commission Chairman will be out of a job next week," May 25):

The controversial chairman of the Texas Forensic Science Commission will be out of the job next week.

The state Senate Nominations Committee has ended its work for this session without voting on Gov. Rick Perry's appointment in 2009 of John Bradley to chair the commission.

Bradley's term ends when the legislative session concludes Monday.

Perry appointed Bradley, the Williamson County district attorney, to lead the commission just days before it was to hear a report critical of the original investigation of arson evidence in a Death Row case from Corsicana.

The inmate, Cameron Todd Willingham, was executed in 2004. Some arson scientists say that the evidence suggests that the blaze that killed his children was an accident, not arson, and that, therefore, he was wrongly executed.

Bradley slowed down the panel's work and pushed members to find no misconduct by fire investigators.

Though the commission eventually released a report critical of the poor, unscientific nature of the arson investigators' work in the Willingham case, Bradley did succeed in what was widely considered the Governor's main goal in appointing him: Delaying any final outcome until after the 2010 gubernatorial election. Now, with the Senate's unexpected dismissal of the FSC chairman, presumably Mr. Bradley can hang a "Mission Accomplished" banner and  re-focus his efforts on the day to day tasks of Williamson County District Attorney.

Grits finds it remarkable that Bradley and his brother David, a member of the State Board of Education, have together lately served as twin spearpoints in right-wing attacks on science in Texas. That's quite a family niche! John Bradley has spent the last year and a half seeking to thwart investigation into flawed arson science, and his brother leads the anti-science crusade (particularly promoting alternative, religious based theories to evolution) on the SBOE. In both cases, the result was overreach. The SBOE's actions caused a voter backlash in last year's primaries against religious conservatives on the board, and JB's antics earned him bipartisan opposition in the Texas Senate. Those developments at least provide some basis for hope that Texans won't support an extremist anti-science agenda, even if they agree with other tenets of grassroots conservative ideology.

See related Grits posts:

• Punting: Forensic Science Commission fails to answer on negligence, misconduct allegations in Willingham fire investigation
• John Bradley's last hurrah at the Forensic Science Commission
• Nominations chair: Bradley appointment to FSC looks doomed as Rs join opposition
• Bradley nomination for forensic chair dead?
• Ellis: DA used forensic chairmanship to 'seize power,' 'thwart the will' of the commission, 'hide' its work from the public, increase 'bureaucratic bloat,' and 'slow its impressive progress to a crawl.' Otherwise he's doing great
• Questioning John Bradley 
• Delay, delay, it's the word of the day: Bradley proffers excuses to put off investigating forensic errors
• Forensic commissioner: State fire marshal testimony "embarrassing"
• Experts: Willingham investigation negligent even by 1991 standards 
• Arson experts finally scheduled to testify in Willingham inquiry tomorrow 
• Forensic Science Commission diverting resources from investigating negligence, misconduct 
• Peerwani: Arson testimony in Willingham case flawed 
• What trick, what device, what starting-hole canst thou now find out? 
• If arson science in Willingham case was 'flawed,' what about other, similar cases?
• A 'confluence of interests' supporting debunked arson indicators

A tainted Texplanation on TSA 'groping' bill

At the Texas Tribune, their "Texplainer" column posed the question, "Is TSA 'Groping' Bill Junk Legislation?," answering in the affirmative, but in the comments Grits took exception to their reasoning. The reporters hung their hats on a quote from University of Texas law professor Robert Chesney declaring that, "'It’s a bedrock principal of the Constitution that federal law is supreme over state law." To this Grits replied:

Yeah, who cares about that pesky 10th Amendment, anyway? That was clearly just a clerical error the Framers meant to edit out but forgot. (/sarcasm) The "bedrock principle" has an "except" in it that this argument fails to acknowledge. (Actually two "excepts," but nobody, and I mean NOBODY, certainly not law professors, champions the 9th Amendment anymore.)

Then there's this ignorant piece of editorial flotsam: "if the federal government created a law establishing that the minimum speed limit on a highway was 65 mph but a local entity, such as the state, passed a law saying the maximum speed limit on a highway was 45 mph, the state law and federal law would be in conflict."

That would be a great example if you drew the proper conclusion. Perhaps the authors fail to realize the feds CANNOT set those speed limits, and instead coerce states into doing it by threatening to take away federal highway funds. They can bribe states into doing what they want, but they cannot overrule state speed limit laws, so if the two were in conflict, contrary to Prof. Chesney, state law would be "supreme" over federal law.

Even the TSA disagrees with the interpretation given here! Their letter says the bill would ""make it unlawful for a federal agent to perform certain specified searches," which implies that it could be passed, enforced, etc.. They're just saying IF it passed it would interfere with their agency rules, but what they DON'T say is what Prof. Chesney claims - that the law would be constitutionally invalid.

How a proper federalism analysis would apply to TSA screening is another question, but it's one not at all Texplained in this article.

Roundup: In search of miracles, coming up empty

Here are several items that haven't made it into their own, individual blog posts while I've been focused  at the Lege, but which merit Grits readers' attention:

Non-DNA cases nearly require 'miracle' to exonerate
Grits has frequently discussed how DNA exonerations are really just a sampling of actually innocent people in prison, since DNA evidence exists in fewer than 10% of violent crimes and often was not preserved in older cases. The Texas Observer's Laura Burke recently published a story of just such a case where the state relied on a jailhouse snitch and failed to turn over exculpatory evidence (a statement from a now-deceased witness declaring "He didn't do it") to convict a man of murder. His one, pro se habeas writ failed and while the story raises many haunting questions, years after the fact there appears simply to not be enough evidence to exonerate. Concludes Burke, "For every person exonerated for a crime they didn’t commit, there are many like James Legate: questionable cases, bulldozed through a flawed system, with no recourse left. Only a miracle could exonerate him."

Parole officers seek ministers' reentry help
Reports the Fort Worth Star-Telegram, "Tarrant County parole officers appealed to ministers Tuesday to help them cast a wider net.  Parole officers who once focused on capturing parole violators and returning them to prison are now setting their sights on finding resources to help parolees stay on the outside. Parolees need jobs and places to live -- things that ministers help members of their flocks with every day." Smart idea.

Don't ban "a plant that God made"
Freshman Republican David Simpson killed a bill banning Salvia Divinorum today on religious grounds, arguing the state shouldn't make it illegal to be "possessing a plant that God made," particularly if it is used by some for religious purposes. He declared what's needed is "parental responsibility," not legal bans. Quite a remarkable stance given that in 2009, 58% of all drug arrest in Texas were for marijuana, most for user-level amounts. I wonder if, in the mind of the representative, the same analysis translates? Salvia smokers needn't celebrate, though, as the bill sponsor successfully attached the measure to another piece of legislation soon thereafter.

Police Monitor sought harsher punishment for SWAT members
Reports the Austin Statesman, "Austin Police Monitor Margo Frasier recommended harsher discipline than what several officers received after a member of the department’s SWAT team last year left a party, crashed his unmarked patrol car and was charged with drunken driving."

Teachers to be notified of felonious students
Reacting to incidents in Austin and Tyler, the Senate this week approved a bill that "would require teachers to be alerted when they have students in their class who have been arrested or accused of serious crimes." The law already required oral notification but now it must be in writing and requires administrators to inform teachers who have direct supervisory authority over the student.

Smoke 'em if you got 'em, inmates: Smith County smoking ban excludes jail
In my hometown, Smith County Commissioners implemented a smoking ban in and near all county buildings EXCEPT for inmates in the jail, reports the website Texas Watchdog. "The court briefly flirted with a smoking ban in jail until reminded by Smith County Chief Deputy Bobby Garmon that the inmates, nearly 100 percent of whom smoke, started a small but violent riot the last time Sheriff J.B. Smith issued a ban. 'Aside from the commissary and visitation, cigarettes are my best tool to keep these inmates under control,' Smith told the court. 'You take that away from a cell full of men, and they will be fighting all day long.'” Meanwhile, legislators are poised to enact a statewide smoking ban for customers of bars and food purveyors licensed by local health departments (presumably with a new Class C criminal statute to enforce it), though the measure wouldn't affect jails. Cigarettes have been banned as contraband in Texas prisons for years. Relatedly, proving the fifth time to be the charm, Smith County voters finally approved a much-downsized jail expansion earlier this month.

Class action suit over jail healthcare in Abilene
Former inmates at the Taylor County Jail (Abilene) have filed a class action lawsuit related to alleged poor healthcare at the facility. One of the lead plaintiffs "claims to have suffered a broken back at the hands of jailers, the suit alleges, and now suffers from a permanent injury due to abuse and neglect by jail staff." The suit claims the jail deprived plaintiffs "of reasonable medical care and resulted in an impermissible punishment of these pretrial detainees in violation of their substantive due process rights under the Fourteenth Amendment for the United States Constitution."

Bail schedule contributing to Harris County jail crowding
Earlier this month, Murray Newman had an essay on the practice of requiring bail for penny ante misdemeanors, declaring "in my opinion, it is silly and oppressive to hold people in jail on low-level crimes while complaining of jail overcrowding in the next breath."

Staff turnover at jails monitored
Under legislation headed to the Governor, jails would be required to report to the Commission on Jail Standards how many staff members leave their jobs every month

Deporting jail visitors?
Since Barack Obama came into power, a common theme from his Administration has been that they wanted to focus scarce immigration enforcement resources on illegal immigrants in jail instead of workers, criticizing the Bush Administration for diverting US Attorneys on the border from actual crime fighting activities. The so-called Secure Communities push has since been criticized for casting its net too broadly, but apparently there's an effort behind the scenes to expand the program further from those in jail to their family members. In San Antonio, Immigration and Customs Enforcement (ICE) recently sought permission to check the residency status of visitors to the Bexar County Jail. The Sheriff said "no," but it's a safe bet Bexar isn't the only county in which Washington is seeking such an arrangement. Relatedly, San Antonio PD had refused to participate in the program ICE is mad that municipal courts in the Alamo City weren't contacting them on Class C tickets. But Republican state Sen. Tommy Williams helped out the Obama Administration this week by tacking an amendment onto another bill to require all law enforcement agencies to participate in Obama's Secure Communities initiative. His amendment also authorizes DPS to operate southbound checkpoints.

TDCJ staff fired for excessive force, contraband
Several firings at the Texas Department of Criminal Justice caught my attention recently. Three guards were fired and a fourth allowed to retire after charges of excessive force at the Neal Unit in Amarillo. And at The Back Gate, a website run by TDCJ prison staff, we learn that Maj. Julia Humphrey, wife of parole commissioner and former TYC administrator Billy Humphrey, was terminated for allegations related to contraband.

DA convicted of misusing seized assets
Former Jim Wells County DA Joe Frank Garza was convicted of running an asset forfeiture scam. He received 10 years probation, 180 days in jail, $10,000 fine, was ordered to pay restitution of $2,000,000 (how likely is that?), plus the episode cost him his law license. He was using forfeiture money to illegally boost his own pay and that of his employees.

'The Role of Parole in Texas: Achieving Public Safety and Efficiency'

The headline of this post is the title of a new report from the Texas Public Policy Foundation. I haven't had a chance to read it yet but wanted to pass along the link (pdf) Here's the description received via email:

Texas has made significant progress in reducing the number of new crimes committed by parolees even while increasing the parole rate. Through reforms such as providing incentives for inmates to complete programs that reduce recidivism, reducing the number of inmates discharged without supervision, and increasing the use of electronic monitoring, policymakers can build on this success. In particular, HB2649, which is on the Senate intent calendar today, would enhance public safety by providing judges the discretion to give state jail inmates an incentive to complete rehabilitation programs and work while behind bars.

New Indigency, Incentive programs for DPS surcharge

Here's a press release from the Texas Department of Public Safety announcing details of the indigency program for people who owe the Driver Responsibility surcharge:

DPS announces details of DRP Indigency Program

The Texas Department of Public Safety is now offering an Indigency Program for surcharges owed under the Driver Responsibility Program. The Texas Legislature authorized an Indigency program to provide low-income drivers the ability to pay surcharges, bringing them into compliance with the surcharge law and allowing them to become licensed and insured drivers.
 
The Indigency Program applies only to individuals living at or below 125% of the federal poverty guidelines as defined by the U.S. Department of Health and Human Services (see chart below). The Indigency Program reduction does not apply to any other fees besides surcharges that a driver may owe DPS.
 

125% of the 2011 HHS Poverty Guidelines
Persons in Family
	48 Contiguous States and D.C.
1	$   13,612.50
2	$   18,387.50
3	$   23,162.50
4	$   27,937.50
5	$   32,712.50
6	$   37,487.50
7	$   42,262.50
8	$   47,037.50
For each additional person, add	$     4,775.00

 
Those qualifying for the Indigency Program will pay 10 percent of the original amount owed for all surcharges combined, for a maximum amount of $250. (Service fees will still apply.) Any payments already made will be applied to the reduced amount. If prior payments are more than the reduced amount owed, no payment will be required. There will be no refunds for payments that exceed the indigency maximum.
 
To request a reduction, drivers must complete the application in full, and the application must be notarized. The completed, notarized application should be mailed to the Municipal Services Bureau (PO Box 16733, Austin, Texas 78761-6733) for processing.
 
The Indigency Program application is available online by visiting www.txsurchargeonline.com or calling the toll-free number 1-800-688-6882 and selecting option 7. Easy-to-read instructions are also included with the application.

Once the application is approved, any surcharge suspensions will be cleared on the applicant’s driving record within three business days. Applicants will be mailed a notice with the reduced amount to pay and the due date. Payment of the reduced amount and other fees that are owed must be received within 180 days from the date of the notice. If payment of the reduced amount is not received by the due date, the suspension of driving privileges will be reinstated. However, the reduced amount will still apply until it is paid in full.
 
The Driver Responsibility Program, which assesses fees for a variety of driving-related offenses, was passed by the Legislature in 2003 and directed the Department to administer the program. Traffic offenses that carry an automatic surcharge for three years include DWI-related offenses, driving with no insurance, driving while license suspended, driving without a license and accumulating too many points because of tickets. (For example, the fee for a first-time DWI offender is $1,000 per year for three years.) The revenue generated by DRP goes to trauma centers, emergency medical services and the General Revenue Fund.

In related news, the Texas Senate just passed legislation today that would require the Department of Public Safety to implement an "incentive" program to let drivers who want to pay off their surcharge up front do so with a substantial discount to provide greater incentives for compliance, and to prevent so many drivers from beginning to make payments then defaulting before the three years are up. The bill was supported by Grits and hospital interests (who helped negotiate the provisions last year in a DPS working group of which your correspondent was a member), so with luck it will earn the Governor's approval and DPS can implement the rules, which were enshrined in the Texas Administrative Code last year but left unimplemented awaiting "direction" from the Legislature. Now that the Lege has provided that direction (and many thanks to Reps Ryan Guillen and Armando Walle along with Sen. John Whitmire for helping push this through), it's time for DPS to move forward and finish the job it began nearly nearly two years ago when this blog first petitioned DPS for rulemaking on the subject.

I'd have much preferred the program were abolished altogether, but these are both quite positive, incremental reforms that demonstrate state leaders are at least aware of the problems caused by this Orwellian-named civil fee, which is charged in addition to regular criminal fines and penalties.

Lessons from SCOTUS ruling on California prison crowding

Yesterday the US Supreme Court, on a narrow 5-4 majority, ordered the state of California to reduce prison crowding because of inadequate medical care in a case style Brown v. Plata (see the opinion), ordering them to lower the number of state prison inmates by as many as 38-46,000. When Texas faced similar litigation over prison conditions years ago in Ruiz v. Estelle, it ultimately prompted a massive statewide prison building spree. But with budgets tight California has no money for that, so some prisoners will be released early, some housed in county jails, and their legislature will likely be compelled to divert more low-level offenders from prison on the front end.

Perhaps the most remarkable line out of all three opinions came from Antonin Scalia's dissent, joined by Clarence Thomas, overtly embracing the tenets of judicial activism and the merits of judges imposing their own views when they conflict with written statutes. They announce in the dissent's second paragraph that "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa."  As I wrote in the comments at Sentencing Law & Policy, these two have now formally embraced the whole "Living Constitution" concept, to judge by this quote. They're explicitly advocating that "tradition and common sense" should trump "the law" when judges disagree with the outcome that following the law would create. What an astonishing view coming from those two self-avowed textualists! So much for "plain reading" of statutes. Apparently judicial activism is the new conservatism.

Returning to questions of prison crowding, it should be said that while Texas prisons have their own share of problems, they pale in comparison to the Golden State: A footnote quoted "Doyle Wayne Scott, the former head of corrections in Texas, [who] described conditions in California’s prisons as 'appalling,' 'inhumane,' and 'unacceptable' and stated that '[i]n more than 35 years of prison work experience, I have never seen anything like it.'”

But that doesn't mean there aren't warnings within this ruling for Texas as it begins to slash funding for prison medical care. Indeed, given Texas' already low spending on prison healthcare and further cuts in the next budget, it's worth pointing out language from the decision confirming that "If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation." The Texas Civil Rights Project has called inadequate medical healthcare "Texas' secret death penalty." Further, given that Texas' university providers are laying off healthcare workers, it's notable that a lack of sufficient medical staff contributed to the court's decision:

The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care.

The shortage of medical staff is so severe in California that "Prisons were unable to retain sufficient numbers of competent medical staff ... and would 'hire any doctor who had ‘a license, a pulse and a pair of shoes.'” "At the time of trial," wrote Justice Anthony Kennedy, "vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists."

There are some in the free world who may not care if prisoners receive adequate healthcare, but there are consequences that spread outside the prison system, including the development of antibiotic resistant infections: According to a footnote, "One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners 'bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.'” Prisons are a common breeding ground for antibiotic resistant infections that eventually, inevitably spread to the outside world.

Inadequate mental healthcare was also a factor; again from Kennedy's opinion:

Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. [citation omitted] In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court-appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.”

Remarkably, "Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could support a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them."

Finally, based on findings of fact from the lower court, the majority discounted the argument that its order to reduce the prison population would automatically harm public safety:

The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety.

Indeed, Kennedy's opinion speculated from the record that reduced incarceration may even improve public safety:

Some evidence indicated that reducing overcrowding in California’s prisons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over-crowding, acknowledged that “‘overcrowding causes harm to people and property, leads to inmate unrest and misconduct, ... and increases recidivism as shown within this state and in others.’” ... The former warden of San Quentin and acting secretary of the California prison system testified that she “‘absolutely believe[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’” ... And the head of Pennsylvania’s correctional system testified that measures to reduce prison population may “actually improve on public safety because they address the problems that brought people to jail.”

The dissents, filled with inflammatory language, read more like op eds than legal opinions - a testament to the extensive record developed by the lower courts. Even Scalia said, "Because these 'findings' have support in the record, it is difficult to reverse them under a plain-error standard of review." So instead of follow the law and apply that standard, he'd simply substitute his own policy preferences if given the chance. In this case, he wasn't, but in the future after this episode it will be difficult to take seriously complaints about activist judges from Justices Scalia and Thomas. To borrow from former California Governor Richard Nixon's famous comment about Keynesianism, apparently "we're all judicial activists now."

Crime in Texas down despite declining incarceration, increased unemployment

Though Texas' incarceration rate has decline steadily over the past few years, the 2010 Texas Uniform Crime Report shows crime declined substantially from 2009 to 2010, calling into question quite a few assumptions about incarceration and crime.

According to the new "Crime in Texas Annual Report 2010" (pdf) from the Department of Public Safety, "this is the first time since 2000 that all seven index crime rates declined during the same year. Murder was down 7.4%, rape 9.2%, robbery 14.9%, aggravated assault 4.9%, burglary 5.9%, larceny/theft 4.9% and motor vehicle theft 12.3%." Overall, violent crime declined 8.3% and property crimes were down 5.7%.

Not only does it strike me as notable that these crime rates declined at the same time that Texas' incarceration rate has been declining (the prison population has remained steady the past few years while the overall population has grown tremendously), but property crime rates declined substantially despite the recession, calling into question the link between theft and unemployment/poverty. Even family violence incidents went down 1.6%, though with the economy on the fritz and the population growing you might expect the opposite result.

The number of arrests of adult Texans declined 4.6% last year while arrests of juveniles declined a whopping 9.3%.  The decline in arrests for adults is especially significant in my view because adult arrests continued to increase over the last several years despite declining crime rates.

Among Texas cities with more than 100,000 residents, crime rates declined in all but three: Round Rock, which experienced an 8% crime spike (because that Williamson County "tuff on crime" approach works so well), Irving Killeen with a 9.1% boost, and Frisco, which saw a massive 28.8% increase. Of the six largest cities, all saw declines:

Houston: -5.9%
Dallas: -10.2%
San Antonio: -2.7%
Fort Worth: -1.9%
Austin: -4.7%
El Paso: -5.1%

Two Texas law enforcement officers were killed feloniously in the line of duty during 2010, while 13 officers were killed in duty-related accidents - also a decline from last year. Reported assaults on police officers declined 6% last year.

This news comes at a time when new diversion programs and higher parole rates at the Department of Criminal Justice have reduced incarceration rates substantially, creating a disconnect with those who argue that more incarceration reduces crime. And the decline in property crimes and domestic violence during what some have called the "Great Recession" runs counter to "common sense" assumptions that those rates will go up when more people become unemployed and desperate.

See the full report here (pdf).

Bill boosting Harris County jail crowding headed to Senate floor

A bill Grits criticized earlier this session that would worsen Harris County jail overcrowding - extending the stay of misdemeanor defendants booked into the county jail from a maximum of 24 to 36 hours until they receive a probable cause hearing - has wended its way through the process and is on the Senate "intent calendar" for Monday. The closing paragraphs to this Houston Chronicle editorial explain why it's a bad idea, particularly in a county so full it's had to ship off hundreds of inmates to Louisiana:

State Sen. Rodney Ellis, a Democrat, was the only member of the seven-member Senate Committee on Criminal Justice to vote against the legislation. A report by his staff contends that keeping prisoners in jail longer will inevitably worsen overcrowding, cost the city and county more money, and result in more defendants losing their jobs because of extended incarceration.

It also questions the need for extending the time limit for holding prisoners, noting that Harris County prosecutors requested waivers for additional time in only 3 percent of the misdemeanors filed in a nine-month period last year.

Rather than keeping minor offenders longer, the report recommends picking up the pace of probable cause hearings for prisoners and changing Houston police arrest policies, encouraging officers to issue more tickets rather than arresting people and locking them up.

According to Sen. Ellis, "If the state's problem is that our jails are bringing in too many people, then we need to concentrate on the options we already know can solve this problem — alternatives to incarceration for low-level, non-violent offenses. These smart-on-crime reforms would have the added advantage of making our communities safer and our justice system more effective and efficient. Before we rush to waste more taxpayer dollars to trample on people's constitutional rights, let's enact real reforms that we know work."

The legislation poses another problem as well. Settlements of previous federal suits against the county for jail overcrowding specify the 24-hour deadline for providing prisoners with probable cause hearings. If passed, HB 1173 would put Harris County in a legal quandary.

We need to be working toward a solution to our chronic jail problems, not passing laws that would worsen the situation and provide a precedent other counties might follow. Keeping minor offenders in jail longer is bad policy that Harris County's delegation in Austin (along with the rest of the Legislature) should reject.

Juvie justice reforms cross ideological divide

Patti Hart at the Houston Chronicle ("Lawmakers in lockstep on juvenile justice," May 22) marveled that legislation merging the Texas Youth Commission and the Juvenile Probation Commission found:

an endorsement by the strangest of political bedfellows this session: the liberal Texas Appleseed and the conservative Texas Public Policy Foundation.

Their joint endorsement blessed the latest milestone in a five-year transformation of the Texas criminal justice system, perhaps the one area in state government where the left and right have found common ground — in the shared belief that prisons cost too much and accomplish little.

Particularly noteworthy in her story was a quote from a conservative donor and boardmember from the Texas Public Policy Foundation (TPPF) on why a conservative group would back such an initiative:

TPPF generally supports low-tax policies, but its involvement was inspired by more than just fiscal concerns, according to Midland oilman Tim Dunn, a donor and board member. Dunn said he decided to underwrite a criminal justice researcher at the think tank because he was impressed by former Nixon adviser Chuck Colson's prison ministry. He also saw the growth of the prison industry as an extension of government power, which clashes with his views on limited government.

"We care about money too," Dunn said. But, he added, "It is not in our best interest to take someone who is a productive member of society and train them to be a hardened criminal. It's morally stupid."

Hart mentioned that Sen. John Whitmire and Rep. Jerry Madden have "promoted similar reforms in the adult criminal justice system," but the adult-side reforms haven't been nearly as sweeping as among juveniles, where the youth prison population has declined an astonishing 72% since 2006 while juvenile crime steadily declined. Grits was hopeful that the success of de-incarceration among juveniles coupled with the budget crunch would spur larger reductions in adult incarceration, where the 2007 reforms praised by Hart in the article have mostly maximized their impact and stalled out. Technical revocations are down on the parole side, she notes, but on the probation side they remain stubbornly high. Texas' decision to close one prison this year - the first such closure in state history - pales in comparison to what's happened at TYC.

Texas' juvie model provides a blueprint for a much more massive de-escalation of costs on the adult side, if the Lege can ever muster the political will. This session, they could not. But the more that backers of limited government begin to extend that critique to mass incarceration, the sooner the time may come when that can happen. At the end of the day, as P.S. Ruckman recently pointed out, sensationalistic media hyping fear is probably a bigger barrier to change than conflicting political ideologies, which as demonstrated in this story can accommodate reform on both the left and the right.

A 'confluence of interests' supporting debunked arson indicators

For those who've followed the saga over the Todd Willingham and Ernest Willis arson cases at the Texas Forensic Science Commission, this Wisconsin State Journal article ("Burning questions: Old assumptions hard to put out," May 19) helpfully frames the problems with arson investigations without all the politicized death-penalty baggage surrounding the topic here in Texas.

John Lentini, a prominent fire investigator and one of the harshest critics of the current state of fire science, said some of the probes amount to little more than "witchcraft and folklore."

He cited a 2005 test designed by the U.S. Bureau of Alcohol Tobacco and Firearms in which fire investigators were asked to identify the general area where two test fires were started in separate rooms. The fires were extinguished less than three minutes after achieving "flashover" — the point when, Lentini says, "a fire in a room becomes a room on fire."

Each time, just three of the 53 investigators got the area of origin right, and it was a different three each time, Lentini said. Subsequent tests have produced similar results.

I wonder how investigators at the Texas state fire marshal would fare on such a test, given that they've continued to stand by investigative conclusions based on the same, debunked premises described in the article? Notably, as arson science improved - or more accurately, as actual science began to seep into arson investigation for the first time beginning in the late 1980s - arson convictions declined precipitously:

Since 1980, the number of intentionally set fires has been on "a long-term downward trend," currently accounting for about 8 percent of all structure fires, down from about 20 percent 30 years ago, the National Fire Protection Association reported last year. Roughly half a million buildings in the United States are damaged or destroyed by fire each year, the NFPA estimates. ...

At least some of the decline, Lentini believes, is because investigators are taking a more cautious approach.

The Wisconsin story focuses on a fire in a bar where a deputy state fire marshal named Joseph Siehelr and an insurance investigator concluded arson simply because, as in the Willingham and Willis cases here in Texas, the investigators could not conclusively identify another cause:

Perhaps most important, Siehelr used a form of reasoning known as "negative corpus" in determining the blaze was an arson. Siehelr testified he and the experts paid by Awe's insurance company ruled out all accidental causes in their area of origin, "which leaves no other possible conclusion than for this to be incendiary."

The National Fire Protection Association's Guide for Fire and Explosion Investigations is considered the gold standard in the field. It has been revised for 2011 to add strong language saying such reasoning never should be used.

"It is improper to opine a specific ignition source that has no evidence to support it even though all other hypothesized sources were eliminated," the guide states. In those cases, it says, the investigator must label the fire as undetermined.

Denny Smith of Kodiak Fire and Safety Consulting of Fort Wayne, Ind., a national expert in using the process of elimination in fire investigation, said it's "pretty clear" Siehelr's reasoning "meets the criteria of what shouldn't be done."

Most of the discussion surrounding arson science in Texas has come in the context of the Willingham case, and thus in the context of the criminal justice system and ultimately debates over the death penalty, which Grits has long argued diverted focus from the bigger picture. But most fires don't kill someone or result in the death penalty, and flawed arson investigations also come into play in more workaday cases where an insurance company simply doesn't want to pay a claim. The attorney in the Wisconsin case described noted "a confluence of interests," between insurance companies and arson investigators: "The insurance company is looking to get out from under a policy, and the state fire marshal wants to hold someone responsible for the fire. There was an incredible rush to judgment — a mindset of going onto a scene looking for a crime, not looking for what happened."

Perhaps the best place to attack crappy arson science isn't in criminal court at all. Maybe what needs to happen is some deep-pocketed civil attorney needs to vet complaints over denied insurance claims at the Department of Insurance to find clients - possibly even enough for a class action suit across multiple states - against insurance companies denying claims over arson based on debunked indicators. The Wisconsin attorney is right there's a "confluence of interests" between insurance companies and law enforcement, but unlike fire marshals offices, insurance companies don't have either sovereign immunity or court-endowed qualified immunity, as do fire investigators. Federal courts in the past have accepted "negative corpus" reasoning in such cases, but given the strong language in the most recent NFPA discrediting that approach, the issue seems ripe to be revisited on a much broader scale.

Dallas News: De-fund constables, then eliminate them

The Dallas News this week published an editorial advocating for de-funding Dallas County constables, shifting as many of their functions and as much of their budget as possible to the Sheriff, and seeking their outright abolition through a constitutional amendment in 2013. Said the editorial ("Time to unplug constables?," May 20):

The county has evidence that at least 36 deputies may have lied about attempts to serve residents with eviction notices or documents regarding other civil actions. If the accusations are true, residents have been penalized — in some cases, kicked out of their homes — without proper notification, and taxpayers countywide have been paying salaries of deputies who are lazy or incompetent.

The law gives the county commissioners so little authority here that all they can do is urge the elected constables not to look the other way.

At the very least, the deputies — who represent more than half of the 70 who serve civil papers — should be placed on paid administrative leave until the investigation is completed. Depending on the results, resignations, firings or prosecutions may be in order.

But this would only address the latest in an outrageous pattern of behavior in the constable offices that stretches over the past decade. In that time, news stories have documented towing irregularities, campaign contribution scandals and assorted charges of DWI charges, sexual assault and bribery.

Although the constables have proved themselves incapable of legally and effectively managing their operations, this branch of county government can’t be eliminated without the time-consuming process of passing a constitutional amendment.

Beginning immediately, the Commissioners Court can begin dismantling these virtually unaccountable fiefdoms by cutting the constables’ budgets and shifting essential duties to the sheriff’s department.

Grits has long considered constables a pointless anachronism. Their primary function is supposedly serving civil papers, but on paper and in reality they're full-blown peace officers with the same authority as sheriff's deputies or municipal cops. Many constables have evolved into sizable, autonomous, mini-police departments, where mission creep has expanded their role to mimic (and thus duplicate) the day-to-day work of municipal police and sheriffs, but often with a much lower level of professionalism and accountability. Such redundancies are the source of Grits' usual objections, but this scandal takes the issue to a whole new level, with more than half the Dallas deputy constables who're supposed to be performing that primary function allegedly claiming to do the work but just spending time at the donut shop, perhaps the golf course, etc.. The idea that people were kicked out of their homes without ever receiving eviction notices is a particularly horrifying result.

Summer is budget-making season for counties across the state, who generally prepare their annual budgets over the summer for approval in September. So in the coming months there will be an opportunity to strip down Dallas constable budgets to bolster funding at the Sheriff's department or perhaps shift to other priorities. Most of what they do can be performed by other agencies, and should be. The serving of civil papers is their only function that's not redundant with other agencies, and in Dallas they're apparently not even doing that worth a damn.

Questions remain after TYC, juvie probation merger

Governor Perry has signed the TYC-Juvenile Probation Commission merger into law, establishing a new Texas Juvenile Justice Department by the end of the year. But Tarrant County juvie probation director Randy Turner worries that the merger wasn't well-enough vetted and "that assumptions driving the merger could be wrong," reported the Fort Worth Star-Telegram on May 18. In particular, Turner worries:

that projections of stable levels of incoming youths may be incorrect. Many nonprofit, county and city institutions are experiencing cutbacks, which may make it difficult for them to serve young offenders.

Those realities, in addition to economic hardships for the families of at-risk children, could bring more youths through the juvenile justice system's doors, Turner said.

During the past four years, the federal government has cut funding to local juvenile programs; Tarrant County's portion fell from as much as $3 million to $300,000, Turner said.

"The cuts are coming," Turner said. "Families are in economic distress, people are losing their jobs, there's been a loss of resources in the schools and a loss of mental-health resources. I can't help but think that the probability is greatly increased because of all the cuts that more of these children will be funneled into the criminal justice system."

Whether or not those concerns are justified or will bear out in the real world, the deed is done. By the time the 83rd Legislature convenes in 2013, it should be clear whether Mr. Turner is just a Nervous Nellie or Nostradamus. I've heard similar concerns about the merger from a handful of institutional players in and out of the capitol, but nearly every critic of the bill save Turner refused to publicly criticize it because they feared the two powerful committee chairman - Sen. John Whitmire and Rep. Jerry Madden - who were pushing the idea.

OTOH, Grits would be the first to concede there are strong arguments for the merger on efficiency grounds, particularly given TYC's massive recent downsizing. Time will tell whether this merger represents actual "reform," or merely change for change's sake. I honestly don't have an opinion on the propriety of the merger. I can see good points from both sides, but there are quite a few questions neither proponents nor critics seem able to answer. And advocacy groups this year too frequently played the role of cheerleader for the bill instead of loyal opposition, providing political cover for the merger instead of insisting all the hard questions get asked and publicly answered.

As an aside, among juvie justice advocates it's a true shame that the Texas Criminal Justice Coalition couldn't find money to keep my friend Isela Gutierrez on board after her excellent work in the 80th and 81st sessions: She was one of the only juvie advocates who I always trusted to shoot straight, even if it risked pissing off powerful people - a rare commodity indeed under the pink dome. Yet she always did so in a respectful, even humble manner that your correspondent greatly admires but could never replicate. We really missed you this year, Isela! :-(

DNA testing, innocence claims pursued in 30-year old Lake Waco murders

The Waco Tribune Herald last Sunday (May 15) had a fascinating story about McLennan County's most famous homicide case, which opened:

Nearly 30 years after a grisly crime known as the Lake Waco murders rocked the city and drew national attention, efforts are under way to exonerate the only living defendant through DNA testing of shoelaces used to tie up one of the victims.

If the testing were to show the wrong people were convicted in the 1982 slaying of three teenagers, the ramifications could be much greater than simply freeing a man from prison.

Because one of the four defendants in the case, David Wayne Spence, was executed, exoneration also could constitute the first proof of wrongful execution in modern U.S. history.

The Trib story is behind their paywall but a helpful reader forwarded a copy.

A fascinating element to the controversy stems from the fact that the ex-wife of the DA who convicted the four men is helping lead the charge to seek DNA testing that might clear them. She approached the Governor's office in 2008, who referred her to the UT-Austin innocence clinic to seek funding for DNA testing. There's been some inexplicable holdup at the lab, however, and

Ace Trib reporter Cindy Culp wrote that "Questions about whether the right people were prosecuted for the crime have long swirled around the case. The issue got the most attention before Spence’s 1997 execution. But the questions have been present in one form or another during nearly the entire saga." Indeed, in 1997 New York Times columnist Bob Herbert wrote a column on the case titled "The Impossible Crime." Law enforcement even consulted psychics seeking leads.

The main evidence to secure the convictions were unreliable forensics and jailhouse snitches, evidence that author Frederic Dannen began to question while writing a book about the 1986 murder of Spence's mother, Juanita White:

White’s slaying was not connected to the lake murders, but the two cases — investigated by [the same detective] and prosecuted by [then-DA Vic] Feazell — bore some similarities.

In both cases, the biological evidence used to tie the defendants to the victims’ bodies consisted of marks identified as human bites.

[Muneer] Deeb’s trial was moved to Cleburne because of publicity surrounding the case. He received a death sentence, but an appeals court gave him the right to a new trial, which led to him being acquitted in 1993.

The supposed matches in each case were made by the same prosecution expert. But bitemark evidence increasingly has been challenged by forensic experts as unscientific. Some now say it should not be used to positively identify a suspect.

Plus, the reputation of the prosecution’s expert later suffered a blow. In an unrelated Florida case a month after Spence’s first trial, he testified that certain human remains belonged to a Florida runaway after comparing an enlarged photo of her against the corpse’s teeth. Two years later, the girl turned up alive. Also, in both the Lake Waco and White murder cases, defense attorneys claimed that information about other suspects was withheld from them by prosecutors. And in both cases, defense attorneys complained about the state’s use of jail inmates’ testimony, which they contended was inherently unreliable.

[Prosecutors], however, maintain their investigations were solid and the convictions were valid.

The holdup stems from a private lab contracted to do the testing, which not only didn't process the evidence in a timely manner but also won't give any information to the defense team about why. Attorneys are considering legal action against the lab.

The father of one of the victims, Raymond Rice “said he always has thought the right people were convicted. But he is not surprised DNA testing is being done because of the number of exonerations in recent years. If the testing were to prove Anthony Melendez is innocent, he should be released from prison, Rice said. 'I’m sorry if they made a mistake,' he said. 'But I can’t go back. Nobody can.'”

'An Absolute Honest-to-God Texas Frame-up'

Michael Hall has a well-done column at Texas Monthly with the same title as this post on the dissatisfying denouement of the so-called "Mineola Swingers Club" case, which opens:

Well, it’s finally over, and if you didn’t look too closely, you’d think the good guys had won. Today at a pre-trial hearing in Smith County, six of the seven so-called Mineola Swingers Club defendants—accused of unbelievable acts of child sexual abuse—pled guilty to “injury to a child” (a felony) in exchange for their freedom. They’ve all been in jail or prison since 2007, though two had their sentences overturned. The remaining defendant—whose conviction is still intact—will remain in prison.

I’ve rarely seen the wheels of justice grind up so many innocent people—and I’m not just talking about these seven defendants. I’m also talking about the children who became witnesses against them, plus the family members of everyone involved in this sordid mess. As long-time Tyler attorney Bobby Mims, who is also a vice-president of the Texas Criminal Defense Lawyers Association, told me in my first story on the cases, “In my thirty years of practice, I’ve never seen anything like it—an absolute, honest-to-God frame-up.”

The story provides an excellent, if angering explanation of why innocent people may plead guilty in cases such as this:

Why would they do this if they aren’t guilty? Well, innocent people plead guilty all the time. They confess to crimes they didn’t commit (about a quarter of the DNA exonerations involve some form of false confession) and they plead guilty to crimes they didn’t commit. They especially do it when they are certain they will be found guilty, no matter what they do or how good their attorneys are. In these cases we’ve already seen four different juries vote guilty—in the time it takes to watch a movie. These defendants know the realities. They can go to prison for life—or they can go home. They don’t have a whole lot to lose by pleading guilty. Their lives have already been ruined—they’ll always be known for these allegations anyway.

There's little doubt more than a few innocent people enter into plea deals for exactly those reasons: The (il)logic of the plea bargain system all but demands it. Even if you're innocent, would you risk a life sentence if you could plea guilty and go home by the end of the week?

Ultimately, says Hall, "There was no crime. There was no sex kindergarten and there were no child-sex shows at a swinger’s club. Ultimately, I can’t help but believe that [Smith County DA Matt] Bingham knows this. Let’s put it this way: If he really believed these people put on live sex shows with children, would he really be setting them free now?" Exactly.

Search warrant challenged in Great Eldorado Polygamist Roundup

Yesterday morning Grits attended oral arguments at Texas' Third Court of Appeals regarding the search warrant(s) that instigated the Great Eldorado Polygamist Roundup at the Yearning for Zion (YFZ) Ranch, which was the part of the case that originally drew Grits attention and got my dander up. Readers will recall that authorities swarmed the ranch and seized more than 400 children based on what turned out to be a hoax phone call alleging sexual abuse.

The Third Court already ruled that Judge Barbara Walther abused her discretion on the civil side based on some of the judgments now being called into question to challenge the search warrant used to invade the ranch (and given what attorney Robert Udashen yesterday called the "armada" of law enforcement that descended on the ranch, "invaded" is the appropriate word). But Judge Walther let the criminal cases continue, racking up several convictions based on evidence seized in the raid. This is the first time an appellate court will directly address the validity of the search warrant.

It's difficult for me to imagine how the court could decide the search warrant is valid without contradicting its own ruling on the civil side, particularly regarding the "particularity" requirement in the Fourth Amendment. In its mandamus order (pdf) requiring CPS to return YFZ children to their parents, the Third Court ruled (and the Texas Supreme Court agreed) that the entire community including independent residences could not be considered a single household, just like an apartment complex with a single property owner doesn't eliminate Fourth Amendment rights of individual apartment dwellers. Footnote 10 to the court's mandamus order specifically declared that:

The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 [of the family code] and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a "household."

But that rebuts exactly the argument the state used to justify the search warrant yesterday. They said they needed just one warrant to search every home and building on the 1,600+ acre ranch because there was a single corporate property owner and only one name on the utility bill. But since the 3rd Court has already ruled these were separate "households," I don't see how they can accept this argument. The logical extension of that line of reasoning would be that a particularized search warrant is unnecessary for people living in all-bills-paid apartments, for example, and that an alleged crime by one apartment-dweller would give police the right to enter and search every apartment in the complex. Clearly that would be absurd, but if the court allows a search based on that reasoning at the YFZ Ranch, there's no distinction articulated by the state yesterday that would prevent them from using general warrants in urban settings or anywhere else where many families live separately on a single property.

As far as I'm concerned, Judge Walther not only abused her discretion on the civil side, as the Third Court has already ruled, but that abuse began with the issuance of what amounted to a colonial-style "writ of assistance" of a type not seen in America arguably since the 1760s. Who knows if the 3rd Court panel will approve the warrant, or for that matter whether the Court of Criminal Appeals will be as firm in upholding the particularity requirement as was the Texas Supreme Court. But if this search warrant is allowed to stand it would set a terrible precedent, letting the ends justify the means.

It should also be mentioned that, though the name "Rozita Swinton" was never uttered, her nutty presence loomed large over the proceedings, and much of the discussion on both sides centered around whether she should be considered an anonymous source or a "named victim." The standard under Franks v. Delaware, the court was told, is whether information included in the probable cause affidavit was a) false and b) included knowingly and intentionally, or with reckless disregard for the truth. The issue arises because of the squirrely nature of the phone calls: They came to a women's shelter, not law enforcement, and a shelter worker fed Swinton key information, including the name of the man she falsely accused of assaulting her (he was an FLDS member on probation in Arizona).

Indeed, not only did they not check out Swinton's story at the time, to this day they haven't fully investigated. To repeat what Grits wrote in 2009, "why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture." If that had happened, I suspect it would have revealed improprieties by authorities that would invalidate the search warrant. Officials were looking for any excuse to launch such a raid and IMO knew or should have known at the time they went in that the call was a likely hoax. In particular:

• Authorities knew before the raid that Dale Barlow was in Arizona, had spoken to him, but made no effort to have him arrested or detained by his probation officer.
• The caller mispronounced the name of the town (there's a long "a" in Eldor-A-do), used terminology that did not match FLDS religious lingo, and only gave details about the group and the ranch that could be easily gleaned online.
• Authorities knew early on the calls to the shelter didn't come from Texas, and with minimalist investigation would have identified the caller as a routine hoaxer.

The Ranger's failure to seek corroboration for the hoax might be justified if he truly thought the caller was in imminent danger. But authorities waited several days to move in with a small army of cops from every jurisdiction from miles around, sweeping up hundreds of children with no particularized suspicion at all, giving them plenty of time to investigate further if they cared to do so.

One strange aspect of the hearing was the assertion by the prosecution that the phone calls had come from a "blocked number," which the state claimed should be considered corroboration because some numbers at the YFZ Ranch were blocked. But that claim runs counter to evidence that law enforcement had those numbers early on. In an arrest warrant affidavit (pdf) for Swinton from Colorado Springs later that year, CSPD Detective Terry Thrumston wrote that:

On April 13, 2008, I was contacted by Sereant Hugh Velasquez (1514D) regarding information he had obtained from Sergeant Sean Mandel. Sergeant Mandel told Sergeant Velasquez he had been contacted by the Texas Rangers in regard to their investigation into the Yearning for Zion (YFZ) Ranch. Sergeant Mandel related Texas Ranger Brooks Long had advised him he had two cellular telephone number listings from the Colorado Springs area (719-351-0913 and 719-243-2866). Sergeant Mandel was aware that the phone number, 719-351-0913, that was possibly related to the reporting party for the YFZ Ranch incident in Eldorado, Texas, was also identified in a prior CSPD case report.

On April 14, 2008, I spoke with Texas Ranger Long and confirmed telephone number 719-351-0913 was in fact a local Colorado Springs telephone number associated with Rozita Swinton. I informed Ranger Long that Rozita Swinton was known to make false reports of sexual abuse to the police and other agencies. The Texas Rangers advised they would be responding to Colorado Springs to conduct further investigation.

Why weren't these phone calls to Colorado Springs made before the raid? Swinton first called the shelter on March 29, 2008, and the raid occurred on on April 3, giving them plenty of time to investigate. And if by April 13 Ranger Long had Swinton's real, not "blocked" phone numbers, why couldn't he have secured them in the days before the raid? The defense didn't question the claim the numbers were "blocked," which startled me given the CSPD's take on Swinton and the ease with which they identified her as a false reporter as soon as Rangers contacted them. While it may be true the Ranger didn't have the information before the raid, it appears he made no effort to get it; at least we know by April 13 he'd figured out how to get that information, and I see no reason the same tactics couldn't have been applied in the days before the raid.

Whether the failure to follow up with available investigative tactics was "reckless" is a matter for the court, but IMO it's just another example of the underlying, opportunistic dynamic in the case. This wasn't a situation where law enforcement was investigating a crime by an individual and uncovered mass wrongdoing. Instead, locals had been seeking ways to drum the FLDS out of the county and leaped on the opportunity to roust them.

MORE: See coverage from the San Angelo Standard Times. AND MORE: The Standard Times had a followup story, "Possible ramifications of FLDS appeal detailed."