Thursday, June 30, 2011

Is something in plain view if you can only see it by flying a toy helicopter with a camera over my back fence to peer onto my property?

Reports the Fort Worth Star-Telegram ("Arlington police testing surveillance aircraft," June 29):
Arlington police are testing small unmanned aircraft designed to take high-resolution video and photos of traffic accidents, hostage situations, pursuits of suspects and other emergency situations too dangerous to send personnel.

Data from the testing, which will continue through next January, will help Arlington and law enforcement agencies across the nation evaluate the feasibility and effectiveness of using such remote-controlled surveillance devices for public safety purposes, Police Chief Theron Bowman said.

The aircraft, which look like oversized toy helicopters, can also be equipped with night-vision cameras or thermal-imaging equipment to help officers locate suspects or victims thrown from crash sites, he said.

"These devices are literally eyes in the sky to us," Bowman said. "They have the potential to help law enforcement and the department become more efficient working with just a few people instead of having to employ many people" in certain situations.

For example, Bowman said the aircraft could quickly take hundreds of photographs of a multi-vehicle pileups, allowing a roadway to be opened hours sooner than if an accident investigator was taking pictures from the ground.

The city, working with the Federal Aviation Administration and the U.S. Justice Department, is participating in a national evaluation program. Its data will help develop training and equipment standards for agencies that use the aircraft as crime-fighting tools.

Both the Houston and Miami Dade police departments have also tested unmanned aircraft, and other cities have expressed an interest, FAA spokesman Les Dorr said. He added that his agency does not disclose who has applied, citing security and privacy reasons.

"Eventually, it's conceivable police departments could be authorized to conduct operational flights," Dorr said. (See the rest.)
This technology raises all sorts of Fourth Amendment questions which I fear will be answered destructively to those rights given the current makeup of the Texas Court of Criminal Appeals, the 5th Circuit, and the US Supreme Court. For example, is something in plain view if you can only see it by flying a toy helicopter with a camera over my back fence to peer onto my property? That wasn't a question that would have ever occurred to the people who wrote the constitutional prohibition on unreasonable searches and seizures, but I suspect the practice wouldn't be well received.

All sorts of other issues arise: What metrics should be assessed to judge whether such technology "works"? What restrictions should be put on information and pictures gathered? Who should have access to it? What should it be used for? What uses should be prohibited? Should the video be a public record (I tend to think so)? What other questions are raised by this development? Let me know in the comments.

Earning it the hard way

The Texas Comptroller approved compensation to Anthony Graves for his false conviction under provisions in the new HB 417 just passed by the 82nd Texas Legislature. Congrats to Anthony and to everybody who helped him seek compensation. Just like exonerees freed on habeas writs, he'll receive $80K per year incarerated in a lump sum (around $1.4 million) and a like amount spread out over a lifetime annuity. Eighteen years incarcerated for a crime he didn't commit; 12 of them on death row (including two execution dates set). That's earning it the hard way!

Unfunded mandates and life sentences for drug dealers

In Corpus Christi, Judge Tom Greenwall sentenced a 23-year old to life in prison over a drug dealing charge, citing his criminal history including several burglaries and a separate drug case, as well as a federal firearms conviction in March. Sentences like this make me wonder, if we now dole out "life" sentences for drug charges doesn't that a) demean the gravity of the punishment and b) work against the state's long-term economic interest?

Even if life in this instance means eligible for parole in 30-40 years, that's still a decision to remove this fellow from society for the entirety of his productive life over nonviolent offenses committed in his youth. So the state pays his full freight whereas on the outside world his economic activity, including property and sales taxes, would contribute to state coffers.

Nobody's saying it wasn't time for this kid to go take a long, state-sponsored timeout. But a "life" sentence is done for the public relations benefit, not because keeping him in a minimum of 30-40 years makes us safer than 20. (The parole board still must evaluate him for release, in either case.) Serving a 15 year sentence would begin to age him out of the prime, youthful crime committing demographic, after which, over time, the likelihood of new offenses declines.

Grits has argued for ratcheting down drug sentences one notch across the board in large part because of the effect on the state budget by reducing incarceration for low-level drug offenders. But while cost savings for offenders on the low end most affect the short-term budget, the long-term budget savings would be even more important, reducing judges and juries discretion to issue "send a message" sentences on nonviolent offenses. Just as grades lose their meaning with grade inflation, punishment gradients lose their meaning when a petty 23-year old drug dealer and a murderer get the same one.

We hear lots of commotion about "unfunded mandates" from the state to local governments, which I agree can be a serious problem. But far less often acknowledged is that, in the criminal justice system, arguably the biggest, most important unfunded mandate runs in the other direction: TDCJ's budget is mostly spent on fulfilling imprisonment obligations dictated by local sentences, whether from plea bargains or set by judges or juries. They can't control those sentence lengths or in the case of life sentences, even consider parole before decades have passed. As he ages, this offeder's health care expenses will grow; costs after he's 55 will be triple that when he's young.

Of course the Legislature owns most of the blame. They pass these draconian sentences, but the Legislative Budget Board does not require them to include their cost in the budget. So local prosecutors, judges and juries aggressively use those sentencing options, the prison budget predictably bloats, then when TDCJ is forced to parole some violent offender (to make room for this guy), they're criticized for not engaging in "Truth in Sentencing." But the reason there's no truth in sentencing is there's no truth in sentencing budgets. The Legislature passed laws with sentences more draconian than it can afford to pay for.

Constantly "enhancing" penalties without paying for it in the budget means TDCJ has no choice but to release more prisoners than ever - more than 70,000 per year, at last count. Texas now releases more prisoners every year than were even locked up at any one time during Ann Richards' tenure. Think about that: Texas releases prisoners every year in numbers so great they're greater than the whole prison system 20 years ago. We deal in volume now, and the state can't afford to process such lengthy sentences for nonviolent offenders in any significant number without either building new prisons we can't afford or stuffing more prisoners into units than they're designed for, which is what brought down federal litigation on California. That's the nature of "unfunded mandates," though; they don't give you any choice.

Personal feuds poison environment for reform at military crime lab

State and local crime labs, including in Texas, have been on the hot seat over the last several years and it turns out, according to a story from McLatchy Newspapers, US military forensics aren't exempt from the errors and lapses in professionalism that have sunk crime lab managers from Houston to North Carolina to San Francisco. Marissa Taylor reports ("Beyond missteps: Military crime lab roils with discontent," June 26):
The military's premier crime lab should be a place of sober scientific research, but lately it seems more like the set of a soap opera consumed with scandal and intrigue.

In less than four years, at least six internal investigations have been launched and six complaints filed against managers. The accusations and counter-accusations include racism, sexual harassment, assault and fraud.
The disputes have embroiled top managers and pitted them against one another. The lab's former lawyer says she was retaliated against for blowing the whistle. The military counters that she made off with official records.
Amid the upheaval and finger-pointing, a lab analyst was convicted of embezzling almost $70,000 from a professional association to pay for his gambling addiction.

"The place is a rat's nest," said Mike Jellison, a former firearms examiner who worked at the lab for 14 years. "It's not conducive to science."

Interviews and thousands of pages of court and military documents that McClatchy Newspapers obtained reveal a litany of concerns about the lab where analysts handle evidence from all the military branches. Each year, about 3,000 criminal cases are processed at the facility called the U.S. Army Criminal Investigation Laboratory.

Acrimony and backbiting permeate the lab, military officials have found. Employees accuse the lab of protecting bad managers and ignoring serious complaints such as conflict of interest and waste. Prompted by the swirling allegations, the military ordered sensitivity training for lab officials and conducted an employee survey to assess conditions.

"There are perceptions that managers are biased for a variety of reasons," Army Col. Eric Belcher concluded after one inquiry in 2009 that described a brewing problem with "extremely bad relationships between managers." (See the rest.)
RELATED: Mounting errors at military crime lab.

Wednesday, June 29, 2011

'Incendiary' Rick Perry, Todd Willingham and the death penalty

The Texas Tribune on July 12 in Austin is hosting a screening of the documentary Incendiary, which focuses on the Todd Willingham case, at the Bob Bullock state history museum. Go here to sign up, and use the code SpecialRate to receive a discount on the ticket price.

That said, I don't think the Willingham story will have nearly the effect on a possible Rick Perry candidacy as do some national pundits. Conor Friedersdorf at The Atlantic confuses optimism with analysis when predicting that California or Texas may soon abolish the death penalty because, "In the Golden State, it costs too much to execute the guilty -- and in the Lone Star State they've likely killed an innocent." In response to a post at Sentencing Law and Policy, I left this rebuttal in the comments: "Not a prayer Texas does it. Proving an innocent person was executed will not be a silver bullet ending the death penalty, that's abolitionist fantasy. According to the polling I've seen, a majority of people who think the state has already killed an innocent prisoner still support capital punishment."

Another reason it may not matter is Perry's unique strategic approach of pandering to the hard right while  ignoring the media and swing voters. A Perry presidential campaign would seek to win the GOP primary by pressing as hard to the right as possible, then hoping the tide of history washes him ashore at the Whitehouse without ever needing to appeal directly to centrists. Whenever challenged, demagoguery over the death penalty can and will obfuscate the issue enough for GOP voters to blame the controversy on the "liberal media" before moving back to their red-meat issues. In the GOP primary, it's too easy to shrug the issue off because of the volume of death penalty cases in Texas and the fact that no other Republican candidate would have done any different. For that matter, the death penalty is not an issue that particularly contrasts GOP candidates with Obama, who's after all out there initiating targeted assassination campaigns.

In the end, if a Republican wins the next presidential election it will be because of the economy, not any culture war issue like the death penalty. Perhaps I'm wrong - time will tell - but I have a hard time envisioning the Willingham case being raised in a context where it could actually damage a Rick Perry presidential campaign.

Tuesday, June 28, 2011

Lately in the Texas Register: Comment on Gov. Perry's criminal justice priorities

From the Texas Register:
  • Clarifying amendments were released related to substance abuse treatment for probationers from the Department of Criminal Justice's Community Justice Assistance Division (CJAD).
  • The Commission on Jail Standards withdrew several proposed but never enacted amendments regarding construction standards, definitions, and rulemaking procedures.   
Readers, let us know in the comments what if anything you see of interest in these proposed rules.

Finally, in a rare moment of bipartisan agreement with US Senate Democrats, Governor Perry's Criminal Justice Division is seeking input on funding priorities for spending federal law enforcement grants, according to this entry:
The Governor's Criminal Justice Division (CJD) is preparing its application for the 2011 federal Edward Byrne Justice Assistance Grant Program (JAG).

The Federal Fiscal Year (FFY) 2011 allocation to the state of Texas is expected to be $18.2 million.  CJD proposes to use the FFY 2011 award to fund initiatives that target violent crimes and sexual predators and enhance border security and adult substance abuse diversion programs.

Comments on the application or the priorities may be submitted in writing to Judy Switzer by email at or mailed to the Criminal Justice Division, Office of the Governor, P.O. Box 12428, Austin, Texas 78711. Comments must be received or postmarked no later than 30 days from the date of publication of this announcement in the Texas Register. 
What do you think of those priorities? What alternatives might Grits readers suggest?

Hillard Fields: Recantation overturns sex-offense conviction

Dallas' latest exoneration clears the name of Hilard Fields, who was exonerated yesterday of sex assault charges for which he spent five years in prison and will no longer be required to register as a sex offender. The victim has always maintained Fields' innocence, but her mother insisted Fields be prosecuted based on a letter she claimed to have read but which mysteriously went missing; her daughter denied its existence. Yesterday, though,, reports AP, "The Dallas County District Attorney's Office supported Fields' claim of innocence in the assault case after the mother of the alleged victim recanted her claim that the victim described the crime in a letter."

Boy, talk about a false allegation ruining your life! With the "victim" all the time adamantly claiming the "offense" never occurred. Given statutes of limitations, I doubt there's a remedy under criminal law for Mommy Dearest, but what a terrible thing to do, even if you fear your underage daughter wants to date a drug dealer! Said Craig Watkins, “Unfortunately for Mr. Fields, sometimes there are circumstances where a person truly is innocent, but because of ill feelings between the accused and other adults involved, the false allegation is allowed to escalate to the point of prosecution and that’s exactly what happened in this case.  This just shines the light on the fact that DNA is not the only type of evidence that can prove a wrongful conviction.”

And speaking of non-DNA exonerations, there have now been enough of them to say at least four types predominate: Bad or dated forensic science, as in the Todd Willingham and Ernest Willis arson cases; recantation cases, like this one; and proven allegations of Brady violations or other prosecutorial misconduct. Looking back to the turn of the century, you'd have to add lying undercover cops and drug informants, leading to dozens of false convictions in the Tulia, Hearne, and Dallas "fake drug" scandals. (Notably absent from the list: There are likely as many cases involving faulty eyewitness ID as in the DNA group, but without DNA courts defer to such witnesses.) I may be missing another category (suggest other examples in the comments), but those encompass most of the post-conviction, non-DNA exonerations I can think of from the recent past. Several of these cases, like Fields', resulted in plea deals (and thus "false confessions") to avoid longer prison sentences. In many cases (I can't speak to this one) defendants received ineffective assistance from their defense counsel.

I've heard attorneys working postconviction habeas writs on the ground say DNA cases are "easy," by comparison to most non-DNA cases, which is to say incredibly hard but at least often possible under Texas law. Non-DNA cases are even more of a slog, particularly after the prisoners first habeas writ (often pro se) has been rejected. Usually there's no one silver bullet, like the recantation in this case, and appellate courts defer heavily to juries when evaluating evidence. In that sense, Mr. Fields was fortunate (comparatively speaking, if you can use that term about a man who spent his adult life in prison or on the sex offender registry over a false conviction) not only that the witness recanted but that the prosecutor's office was willing to hear out, investigate and ultimately support his innocence claim. Most DA's offices would just fight such claims tooth and nail.

Fields is not eligible for compensation because of a concurrent drug conviction, but the ruling, if sustained by the Court of Criminal Appeals, will get Mr. Fields off the sex offender registry.

Congrats to Hillard Fields, Dallas DA Conviction Integrity Unit chief Mike Ware, who gets credit for this one heading out the door, and Fields' habeas attorney (and Innocence Project of Texas board chair) Gary Udashen.

Monday, June 27, 2011

Haunting Rick Perry, a poop too far, and other stories

Here are a few odds and ends Grits would blog about in more detail if I had more time.

'The first innocent man'
Robert Wilonsky at UnFair Park offers "A belated farewell to The Thin Blue Line's Randall Dale Adams, "The first innocent man." Wilonsky doesn't mean that Adams was the first innocent man convicted in Texas, by any means, but that "he's the beginning of the modern day parade of exonerees -- the way they're treated, thought of and talked about upon release." Relatedly, I'd neglected to mention that Gov. Perry signed legislation to allow Anthony Graves to be compensated, along with other non-habeas cases where prosecutors agree a false conviction has occurred. More on Adams: From Cary Clack at the SA Expresss-News.

Haunting Rick Perry
Ta-Nehisi Coates argues in the New York Times that a Rick Perry presidential campaign would be haunted by Todd Willingham's ghost. My feeling: Perry believes it will help him in a Republican primary, which is all he's concerned with winning. He probably can't beat Obama straight up without some type of extraordinary 2010-style momentum beyond his control, so Perry's most realistic hope for becoming President lies with focusing on winning the GOP primary, then be the one who happens to be there when Obama loses, which given the state of the economy and perennial Democratic ineptitude, isn't a bad strategy.

Jail doctor's contract: Minimize hospital transports of seriously ill inmates
In Wichita Falls, the Times Record News describes litigation by the family of a deceased Wichita County Jail inmates who was allegedly denied access to medical attention. The suit alleges that minimizing access to health services was a contractual obligation for the jail doctor. Dr. Daniel "Bolin's 'cost-saving' and 'low price' contract, the suit claims, specifically instructed him to try to minimize transport of people in custody who suffer from serious medical conditions unless or until a patient's condition was near-death," reported the Times Record News.

Mexico hopes military less corrupt than local cops
Soldiers are replacing allegedly corrupt municipal police in much Tamaulipas, Mexico's northeastern most state.

An American face on the argument for foreigners' rights
Here's an example showing why I wished Gov. Rick Perry and the Court of Criminal Appeals took Vienna Convention rights of foreigners a little more seriously in Texas' justice system. If for whatever reason I found myself stranded in a Mexican jail at some point, I don't want anyone to give Mexico any excuses not to afford me every right a US citizen has coming to them, which means doing the same for Mexicans.

A poop too far
Grits argued this week that using DNA technology to solve burglaries and other nonviolent crimes would put too great a strain on crime labs. Imagine if the technology were used to find out whose dog pooped in your yard!

Plug for CURE fan drive
Bob Ray Sanders at the Startlegram makes a plug for donations to Texas CURE to purchase fans for indigent Texas inmates

Sunday, June 26, 2011

New laws TDCJ is planning for that you may not have heard of

The Texas Department of Criminal Justice has posted this summary (pdf) of legislation affecting the agency on its website, and Grits wanted to point out several highlights that haven't received a great deal of attention:

TDCJ-OIG gets pen registers for contraband investigations
Though underreported compared to more pricey approaches, probably the most efficacious piece of legislation passed this session related to reducing contraband was "HB 2354 by Madden - allows TDCJ's Office of Inspector General to possess and use a pen register during criminal investigations regarding escapes and prohibited substances and items in a correctional facility." (Added per commenter request.) Pen registers, or what back in the days of phone lines used to be called "trap and trace" devices, let TDCJ-OIG investigators access without a warrant a list of every phone number calling to and from a particular line if it's part of an escape or contraband investigation. They only get the list of numbers, they can't listen in on that authority to the content of the calls.

Reducing inmate numbers, a little
Very few bills on the list will reduce TDCJ's inmate population, but two notable exceptions are:
  • HB 2649 by Allen - allows a judge to award diligent participation credit for participation in a work, treatment, educational or vocational program to a defendant convicted of a state jail felony, in an amount not to exceed 20% of the original state jail felony sentence.
  • HB 2734 by Madden - requires as a condition of parole that an illegal alien released to the custody of the U.S. Immigration and Customs Enforcement leave the United States and not return by unlawful mean.
The Anti-'Enhancement'
Since this blog rails against the biennial passage of dozens of new crimes and (Orwellian-named) "enhancements" of old ones, I should give full credit for passage of a rare bill moving the chains in the other direction.
HB 3384 by Madden - removes the provision allowing a previous conviction for a state jail felony offense to be used for enhancement purposes (in most cases). Punishment for a state jail felony offense may be enhanced to a third degree felony if it is shown at trial that the defendant has been twice previously convicted of a state jail felony.
The Governor signed this legislation, according to the capitol website, reiterating last week's politics-make-strange-bedfellows theme where Grits and Rick Perry inexplicably ended up on the same side of various, sometimes high-profile issues. This topic has received less attention, of course, than the Governor's recent concern over groping by TSA employees in the airport. 

Summons instead of arrest for technical revocations of long-term parolees
County sheriffs will welcome this legislation if the Parole Division will embrace this change from arrests to summons, reducing the number of so-called "blue warrants" issued for administrative violations to long-term parolees:
HB 2735 by Madden - requires the Parole Division to issue a summons for a hearing before a parole panel, rather than an arrest warrant, to a parolee charged with an administrative violation of parole more than three years after having been placed on supervision. The parolee must not be serving a sentence for, nor previously been convicted of, an offense that would require sex offender registration and must not be on intensive or super-intensive supervision parole, be an absconder, or have been determined to be a threat to public safety.
Plugging probation into state planning; combining CSCDs?
Another underreported piece of legislation will generate a lot more comparative information about what services probation departments provide to their charges, and what they cost:
HB 3691 by Gallego - requires the TBCJ to adopt rules regarding contracts between community supervision and corrections departments (CSCDs) and between judicial districts and CSCDs in another judicial district. The bill also adds the CSCD director as a member of the community justice council and requires CJAD to prepare a report containing a summary of the programs and services included in each community justice plan (CJP), which would be submitted to the LBB along with the agency's legislative appropriations report.
The bill also, according to this description, envisions potentially combining some smaller probation departments in the future: "If CJAD (TDCJ) determines that a CSCD's or regional partnership of CSCD's report could create a savings to the state, CJAD may award a one-time lump sum equal to 35% of the savings and may also provide incentive payments for certain achievements over a biennium." The process by which TDCJ-CJAD "determines" this will be interesting to watch

Property transfers
A couple of real estate deals to watch during the interim: We already knew that the state would close the Central Unit in Sugar Land and sell the acreage around it, which is surrounded by an airport, a business park, and a new minor-league baseball stadium. This list confirms that "HB 2004 by Bonnen - requires the Texas Board of Criminal Justice (TBCJ) to sell approximately 2200 acres at the Ramsey unit in Brazoria County." So it'll be interesting to see in whose hands that property ends up. Further, "HB 2518 by Kolkhorst – requires the Texas Board of Criminal Justice to transfer to the board of regents of the Texas A&M University System 2.536 acres of property for the use of the Texas Forest Service. The property is currently leased from TDCJ by the Texas Forest Service."

Saturday, June 25, 2011

A bipartisan consensus favoring criminal justice pork

A frequent theme on this blog is that support for Big Government solutions in the criminal justice arena is usually bipartisan, and here are two recent datapoints supporting that claim:
  • Democrats created the Edward Byrne Justice Assistance grant program in the '80s and defending this state-level pork is one of the few areas of bipartisan agreement in an otherwise sharply divided US Congress.
  • The Justice Policy Institute just issued a report titled "Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies," documenting cross-partisan giving by the two largest private prison firms - Geo Group and Corrections Corporation of America - generally giving to successfully reelected incumbents on key committees. Party mattered less than position when analyzing who received private prison donations, according to this study.
Both those trends reinforce how important it is to avoid partisan labels when analyzing criminal justice politics. In both instances, the issues simply don't break along party lines: Elected officials from both parties support law-enforcement pork, just as both parties' candidates receive significant donations from corporate-prison interests. A recent post at Texas Prison Bidness reinforces the sense that these companies are seeking to buy political influence, or at least that's what I'd infer from news that former Bush-era Bureau of Prisons chief Harvey Lappin recently left the BOP to take an executive job at Corrections Corporation of America. That's pretty overtly "gaming the system," to use JPI's lingo: Hiring the guy who runs the federal prison system you've been seeking contracts from for years. That's gotta be helpful when preparing CCA's next bid.

See related Grits posts:

Using DNA in nonviolent offenses would swamp crime labs

In the future, as the national CODIS database expands to include, conceivably, every US arrestee, DNA will be used to solve all sorts of common crimes, not just violent offenses. It can be used for nonviolent crimes now, in fact, but the main barrier to doing so is a lack of resources at crime labs. In Northwestern Louisiana, federal grants are being used to process DNA in burglaries in a pilot program, reports the Shreveport Times.
The effort to clear a backlog of burglary cases started in March. The crime lab was staffed with eight new full-time DNA analysts and the will to go after a stack of property crimes cases, crime lab Director Jimmy Barnhill said.

The crime lab has tested DNA from 76 cases this year — 70 burglaries, five sexual assaults and one classified as "other."

Of those 76 cases, 78.5 percent came back with DNA matching someone in the Combined DNA Index System maintained by the state, crime lab forensic DNA analyst Jessica Esparza said.

Burglaries had an 84 percent hit rate against CDIS, meaning 84 percent of the time an unknown burglary suspect will be named by the system, Esparza said. She said 59 percent of the total 2011 hits came from the Shreveport Police Department and 6 percent came from the Bossier City Police Department.
As new techniques come online like "touch DNA" that let investigators discover biological evidence in settings heretofore considered clean, the possible forensic uses for such technology will continue to grow faster than will the number of techs employed by the state to process the evidence, and much faster than city and county budgets to pay for local or private processing. There are opportunities for privatization here, but private labs doing this work also face greater responsibility to back it up in the courts than ever before when their work is used later on.

Either way, ramping up lab volumes while doing the work the right way, in a manner that will survive appellate and regulatory scrutiny, is one of the major challenges facing modern crime labs. They could begin processing DNA in more burglary cases, but as it stands, doing so requires a tradeoff with, say, reducing rape-kit backlogs. Short of some special, federally funded pilot program like in Shreveport, I doubt most law enforcement agencies would choose of their own accord to prioritize DNA testing resources on nonviolent offenses while untested rape kits linger on their storage shelves.

The 82nd Texas Legislature passed a bill this year that will require the creation of statewide rules at DPS governing collection and preservation of biological evidence. That's pretty much where the rubber meets the road on whether local labs and evidence handlers can competently manage the ever-growing volume of biological evidence coming their way. If it needn't be properly stored, cataloged, etc., they can probably go along to get along. If the evidence must be managed using high professional standards, the cost of expanding DNA testing to new domains may be, as a general rule, too prohibitive. At a minimum that tension will be explored more thoroughly as those rules are developed, both at DPS and perhaps on this blog.

RELATED: From Forbes, "Is DNA testing of dog poop forensic science gone too far?"

See related Grits posts

Friday, June 24, 2011

The hot drug war south of the river and Mexico's 2012 elections

Check out the best recent analysis I've seen of the potential impact of the 2012 Mexican presidential election on that country's hot and bloody drug war, from Scott Stewart at Stratfor who argues that diversification of cartels into extortion and other organized-crime venues gives criminal gangs a business model, albeit with reduced revenues, even if drugs were legalized. Stewart thinks "the conditions on the ground leave the Mexican president with very little choice. This means that in the same way President Obama was forced by ground realities to follow many of the Bush administration policies he criticized as a candidate, the next Mexican president will have little choice but to follow the policies of the Calderon administration in continuing the fight against the cartels." As an aside, Stewart adds an observation voiced on Grits in the past, that diversification into non-drug related organized crime:
is also a factor that must be considered in discussing the legalization of narcotics and the impact that would have on the Mexican cartels. Narcotics smuggling is the most substantial revenue stream for the cartels, but is not their only line of business. If the cartels were to lose the stream of revenue from narcotics sales, they would still be heavily armed groups of killers who would be forced to rely more on their other lines of business. Many of these other crimes, like extortion and kidnapping, by their very nature focus more direct violence against innocent victims than drug trafficking does.
IMO that's both spot on and extraordinarily depressing, since the status quo in northern Mexico is unsustainable and the Mexican military response not only ramped up the killing, but contributed to further political destabilization throughout northern Mexico. Some questions arising from the piece include, how will public dissatisfaction translate in the Mexican electoral arena next year? Will any candidate offer the public a realistic alternative to military deployment? For that matter, is there a realistic alternative and if so, what is it (beyond legalizing narcotics)? Can the next Mexican president, from whatever party he hails, stop the bloodshed surrounding cartel feuds, however noble or well-meaning their intentions? Can any strategy, however brilliant, survive implementation by corrupt law enforcement, and how can corruption be rooted out? Taking the suggestion at face value, how would the US react to Mexico striking accommodations with cartels in exchange for peace instead of crushing them militarily, if it came to that? Assuming Mexico won't allow US boots on the ground in their country (a safe bet) what influence can the US really have on that sort of street-level law enforcement?

North of the river, I doubt what's happening in Mexico will become an issue seriously discussed in the US 2012 presidential election, at least nothing besides vague discussion of preventing "spillover" onto American soil, ignoring that almost all of the so-called spillover happens in the other direction. Obama's Mexico policy has been substantively no different than his predecessor's. How many Mexicans must die in Juarez and other border towns, often at the hands of American-based gangs working as assassins for Mexican cartels before the the US decides Mexico is a more pressing problem than Moammar Qadafi? Or will they wait until the killings ramp up in El Paso, Dallas, Houston, Chicago, Atlanta, etc.? ¿Quien sabe?

Thursday, June 23, 2011

Every arm can wield a hammer: Defending Perry's veto of Texas texting ban

When Governor Rick Perry announced his vetoes, Grits praised the Governor's decision to kill legislation criminalizing texting while driving. On Tuesday, James Ragland at the Dallas News published a column excoriating Perry for the veto ("Texas goveror's logic for vetoing texting-while-driving bill seems twisted," June 22, behind paywall), declaring that "The 'logic' that Texas Gov. Rick Perry used to veto a bill that would, among other things, prohibit TWD is twisted, if not downright hypocritical," though he granted that "I don’t know if outlawing TWD would prompt Texas drivers to stop cold turkey or merely inspire them to do a better job of hiding their perilous habit."

Setting aside the difficulties of enforcement, Ragland says if Perry supports seatbelt and DWI laws, he has no justification for vetoing this bill. But I measure the issue on a different axis: Criminalizing common behaviors is a slippery slope, and Perry is at least willing to engage in a meaningful debate, unlike Ragland, regarding at what point criminalizing more drivers becomes counterproductive, charging average, law abiding citizens with criminal offenses while diverting police efforts from more serious crime.

Apparently it's come to this in the writing of criminal law, at least according to James Ragland: It's just a good thing to make criminals of non-criminals over any subject you disapprove of even if you don't think doing so will work! Criminalizing new behaviors has become so habit forming, it's the go-to move even (perhaps especially) for liberals. The real danger from the impulse, though, is that creating new crimes or "enhancing" old ones is a purely tactical and thus a bipartisan (really a trans-partisan) approach. You can theoretically criminalize anything you don't like, after all - every arm can wield a hammer. The Wichita Falls Times Record News editorial board chimed in that it was worth passing the law just "in the hopes of saving even one person." The Midland paper called the veto a "mistake."

Seemingly to counter Ragland's opinion column, but mostly reinforcing it, the News followed up by publishing an article today from reporter Erin Mulvaney giving a "both sides of the story" (sort of) account of the topic. My favorite part of the story was this quote from a National Safety Council official:
Dave Teater, a senior director for Transportation Strategic Initiatives for the National Safety Council, said texting and driving is a new threat to public health and safety and that the governor’s decision to veto the legislation was “disastrous.”

“If the state is not willing to say whether it’s right or wrong, then it implies that it is not that dangerous,” he said. “People are crashing and causing fatalities across the country. … If our government can’t be involved in public safety, I don’t know what government is good for.”
A blogger's dream. How much is wrong with that sentiment? If state law is silent on a topic, that "implies that it's not dangerous"! In court the 5th Amendment will protect you, but in the court of public opinion Mr. Teater is willing to convict states on their silence - unless they pass this bill as some sort of loyalty oath. But the proposed solution really isn't one, despite terrible anecdotes about distracted driving and cell phones which have arisen, perplexingly and counterintuitively, accepting prohibitionists' arguments, during a period when traffic deaths are declining.

As for what else is government good for besides public safety? How about "preserving rights"? That's the foundational role of American government to which Ragland and Treater's comments seem oblivious. A LOT of otherwise law abiding people use their cell phones in the car, so the proposal is to criminalize a new segment of average people, expanding the baseline pool of who may be stopped, questioned, arrested, racially profiled, etc.. significantly. 

The bill further eviscerates drivers' remaining 4th amendment rights at traffic stops. Nearly everyone now carries a phone. Criminalizing its use in the car could give officers "reasonable suspicion" at just about every traffic stop. Would it be enough for an officer to say they saw you glancing at your lap when they ask you to get out of the car, pat you down, and search your vehicle? Probably. In fact, given erosion at the Supreme Court regarding Fourth Amendment rights at traffic stops, it's quite reasonable to make a stand here that enough is enough.(I wish the Governor had found his Fourth Amendment backbone a little sooner, in fact, but that's a column for another day.)

And for this sacrifice of liberty, we get no documentable improvement in public safety. Mulvaney did at least mention countervailing research (discussed on Grits when it came out): "A study released last year by the Highway Loss Data Institute examined insurance claims in several states before and after laws were in place banning texting while driving and found that the laws did not result in fewer crashes," wrote Mulvaney, adding that "When the study was released, the institute told The Associated Press the findings 'don’t match what we already know about the risk of phoning and texting while driving.'”

Though the finding is sidestepped in the story as a one-off, I think the result makes perfect sense. Most texting drivers are younger, and young people already are at greatest risk to cause traffic accidents. They're already distracted and if this wasn't distracting them, they'd find something else; there are plenty of distractions out there to be had, after all. Meanwhile, cars are getting safer, hospitals save more lives than ever and the median age in America is rising. In other words, criminal laws have very little to do with the actual reasons traffic deaths are declining, certainly not to such an extent that they deserve such narrow, singular fetishizing as supposedly the only way government influences behavior, particularly at the level of very personal tasks like preventing "distraction."

My own views, then, lie much closer to those expressed by the lone critic of the bill (besides Perry's veto statement) quoted in the story, "Rep Bryan Hughes, R-Mineola, [who] said he voted against the bill because the state already has laws against distracted driving and reckless driving, but a broad prohibition on using cellphones gives police a reason to violate the Fourth Amendment, which forbids unreasonable search and seizure." Bingo! There's that other purpose of government Mr. Teater couldn't locate.

In closing, Mulvaney contacted Grits a couple of days ago to go on the record for this story, but since she didn't quote any of what I sent her, I'll republish it here to close out this entry:
We already have laws governing similar behavior and it's not needed. There are laws against reckless driving already, so on its face it's redundant if the behavior is in any way endangering others.

OTOH, if I read a text at a stoplight I don't think it harms anyone. It's already an area where civil litigation metes out liability quite successfully and criminal law has little to add. Plus studies show similar laws passed in other states simply don't reduce traffic deaths, see here.

Finally, banning everything that could distract people is just not practical or reasonable, and even if the bill became law, the state can't enforce it. Lots of things can distract you when you drive, from roadside advertising to disciplining a kid in the back seat, adjusting the radio, eating, fiddling with GPS, putting on makeup, you name it ... all the stuff people do in their cars. You can't ban it all.

All this bill has going for it is tearful anecdotes and handwringing - the policy arguments all run against it.
See related Grits posts:

Tuesday, June 21, 2011

'Rick Perry: Don't Touch My Junk'

The headline of this post is how the Fox News blog titled the AP story about Governor Perry adding legislation to restrict Transportation Security Agency pat downs to the "call" for Texas' special session. As first reported in the Houston Chronicle:
Gov. Rick Perry announced he had added legislation that would make it illegal for TSA agents to engage in “intrusive touching” at airports security checkpoints without probable cause to the list of items for the legislature to consider during the special session.

The measure had previously failed to muster enough support in the Texas Senate to come up for a vote because the Justice Department wrote a scathing memo against the bill, which threatened legal action against the state, and the measure became enmeshed in Senate politics.

There are questions about what impact the legislation might have since airport security is a federal matter.
Grits approves of this move for at least two reasons. First, as I wrote last fall, I despise the idiocy, intrusiveness, and redundancy of post-9/11 airport security, and I want to see a re-assertion of the 4th and 10th (if not even the 9th) Amendments on all available fronts. Whether or not federal courts would allow it is both a legal and a political matter, but as a political stance I'm happy to see it. Further, I'm not quite as morose about the bill's legal prospects as Conor Friedersdorf at The Atlantic who says it's a "publicity stunt that's doomed to fail." I might have thought so until I saw the disingenuous arguments TSA and its supporters made in reaction to the bill, and then I began to wonder if, underneath all the Anti-federalist mumbo jumbo and bipartisan Big Government chutzpah, the Emperor really isn't wearing any clothes? Perhaps we'll now find out?

I do agree it will be difficult to overcome the trend over recent decades of federal courts accumulating power instead of disseminating it to the states on "national security" grounds, a pattern of court precedent that one imagines may be too powerful to overcome. But the reason has as much to do with politics as with constitutional argument. For that reason, the bill is worth supporting if only to begin chipping away around the edges at federal overreach on security matters, and I couldn't agree more that  "it's nice to see that it is suddenly good populist politics to push back against War on Terror national-security excesses."

MORE: From the Texas Tribune.

RELATED: "A Tainted Texplanation on TSA 'groping' bill."

Pilot collaboration on DNA testing could presage regional Harris County crime lab

The Harris County Commissioners Court is throwing the City of Houston a lifeline when it comes to processing backlogged rape kits, proposing a pilot program that could end up having such evidence tested at a county-run crime lab. Reports the Houston Chronicle ("Harris County lab could help relieve HPD crime lab," June 21):
Harris County Commissioner Steve Radack said he would like city officials to move quicker on developing a regional crime lab and treat DNA testing as a priority. 

"I think it's time for the city to take its head out of its holster and understand the horrible problem that is present in the city and for that matter in the region when it comes to having the ability to quickly process evidence such as rape kits that, at this time, the city at times takes years to process," he said. "Victims of crimes deserve more than the city is willing to offer."
Voters already approved bonds to construct a new lab, reports the Chronicle: "In 2007, Harris County voters approved $80 million in bond funds for the building of a new forensics facility, allowing officials to begin developing plans to expand the institute, formerly the medical examiner's office." However, the county anticipates having sufficient facilities by next year to handle all of HPD's DNA testing. Until then, the pilot would start small, but the aim would be consolidating DNA testing in the Harris County lab down the line:
Harris County officials are forging ahead with plans for a regional crime laboratory beginning with a pilot program that would allow their lab to take on some of the Houston Police Department's DNA testing.

Under the proposed pilot program, which is set to go for approval before Commissioner's Court on Tuesday morning, the Harris County Institute of Forensic Sciences would receive, process and report on HPD sexual assault cases requiring DNA testing. The caseload would be limited to 25 cases for every two months of the program's duration.

Unlike the HPD crime lab, which has thousands of sexual assault cases awaiting testing, the county lab has no backlog, according to officials. If the program succeeds, it could spur steps to allow the county to take on all of HPD's DNA testing needs.

"The integration of the city's DNA caseload with ours will be the first step, a first building block for future incremental expansion," the institute's Chief Medical Examiner Dr. Luis Sanchez said in a prepared statement.
The HPD crime lab has been so dysfunctional for so long, this is surely a good, if minimalist first step and I hope the city goes along with it. Whether bureaucratic turf fights or feuds over funding keep a full merger from eventually happening is anybody's guess, but particularly given the City of Houston's current budget crisis, it seems unlikely HPD will solve the problem on its own without such regional collaboration.

See related Grits posts:

Austin chief: Police treat high-profile defendants differently from the rest of us

The president of Austin's police union, Wayne Vincent, questioned whether local talk show host Jeff Ward received special treatment after Ward had his fiancé call APD Chief Art Acevedo while he was pulled over on the side of the road. Surprisingly, the chief responded by openly admitting that, as a matter of departmental policy, police supervisors pay more attention, much more quickly, in cases involving "high profile" defendants. Reported the Austin Statesman ("Police union president questions dismissal of radio host's DWI charge," June 21):
Vincent raised questions over whether Ward received preferential treatment.

"The process did not play out the way it was supposed to," he said.

Acevedo disagreed.

"We have an internal review process on incidents, and we follow that protocol," he said. "The only thing that occurred here is that the county attorney made a decision not to file charges."

Acevedo added that officers frequently review the arrest videos for elected officials, celebrities, athletes, police officers and other high-profile cases.

"Ward's case was treated like any other high-profile incident," Acevedo said. "It was reviewed by the chain of command and submitted to the county attorney's office, who made an independent decision."
Why should elected officials, celebrities, athletes and police officers be treated differently than everybody else? That seems hard to justify. Several commenters at the Statesman made that point, with one declaring "WHY is there a different set of rules for one segment of the population? This is wrong, wrong, wrong." Why, indeed!

OTOH the complaint could backfire for Vincent, who's trying to make hay criticizing the chief to score points with police rank and file in an upcoming, contested union election. Since, according to Acevedo, police officers are the only non-public figures whose cases receive special treatment, one doubts Vincent's union members really would prefer that policy be reversed.

RELATED: False arrests for DWI in Austin highlighted by bust of talk-show host.

Federal judge: Leniency for criminal cops contributes to corruption

While sentencing a Mesquite police officer for stealing drug money, a federal judge yesterday complained about law-enforcement officers receiving lenient sentences that would never be available for members of the general public. He issued an above-guidelines sentence after complaining about a string of recent, light sentences for wayward police officers in thd DFW area. Reported the Dallas News ("Former Mesquite narcotics sergeant gets 15 months for stealing," June 21, behind paywall):
A judge frustrated over a string of probation sentences for dirty cops on Monday sent a former Mesquite narcotics sergeant to federal prison for 15 months for stealing money he thought belonged to a drug dealer.

John David McAllister was arrested in March after FBI agents set up a sting in which they placed $100,000 of supposed drug money in a vehicle and asked McAllister to help them seize it. Undercover cameras showed McAllister stuffing $2,000 into his pants.
DMN's Jason Trahan reports that Federal District Judge Sam Lindsay cited several instances where law enforcement officers got off light:
“This court takes the deterrent effect very seriously,” Lindsay said. “If law enforcement officials are going to break the very law they are sworn to uphold, they need more than a slap on the wrist.”

He cited several local cases in which officers got probation for committing crimes, including another Mesquite officer. A Dallas County judge in April gave former Officer David Sutton a year of probation after he pleaded guilty to a state jail felony for stealing $1,800 from the Santa Cops and Special Olympics programs. Sutton told investigators he had been having financial problems.

In May, a Dallas County jury generated waves of criticism for giving former Dallas police Officer Alph Coleman 10 years of probation and a $10,000 fine after finding him guilty of participating in the robbery of a Sam’s Club in 2008.

Lindsay also cited the case of Carlos Ortiz, who was allowed to remain an FBI agent despite being involved in two armed standoffs in 1992 and 2004. He finally received two years in federal prison after he told a friend last summer that he was going to kill his wife and the head of the Dallas FBI, Robert E. Casey Jr. It was only then that he was fired, arrested and charged.
“Those breaks would not have been afforded to members of the public,” Lindsay said.
Lindsay is right, and it takes judges with a stiffer backbone to do something about it. Yesterday in an analysis of rulings by new Texas Court of Criminal Appeals Judge Elsa Alcala, Grits described "an opinion overturning a conviction of a Harris County Sheriff's deputy involving a telemarketing scam run on behalf of the union, using a much more defense-oriented analysis of sufficiency of the evidence than any average, non-officer defendant should ever expect to receive from her. All of a sudden, when a Harris County Sheriff's deputy was accused, her habitual deference to juries went out the window." This is the default stance for Texas state judges, from the district court level up to the highest criminal court, and as Lindsay points out it directly contributes to corruption.

Before sentencing, McAllister told the judge the nature of the job contributes to an attitude that police can get away with whatever they want: “I was the big man on campus ... The job breeds that." Corruption might lessen if judges routinely recognized that fact about police jobs, but instead, with rare exceptions like Judge Lindsay, the baseline impulse from officialdom is to routinely ignore it. It'll take more than this one case to change the perception of law enforcement that when they engage in serious misconduct, judges and prosecutors will usually have their backs.

MORE: From the Fort Worth Star-Telegram and NBC-DFW.

Will new healthcare tax on inmate families boost demand for prison medical services?

Reports AP:
The Texas House has approved legislation meant to tamp down rising health care costs for the state's prisoners.

Passed by a vote of 124-14, the bill requires inmates who initiate a doctor's visit to pay a $100 annual fee, unless they are indigent. It also requires the Texas Department of Criminal Justice to house inmates with similar health conditions in the same units, so as to help reduce costs.

The measure additionally directs the department to provide some over-the-counter medications and at no cost to indigent inmates. It now heads to the Senate.

Opponents say the bill is too much of an increase from the current, $3 prisoner co-pay per doctor's visit. But a budget analysis predicts it will save Texas nearly $10 million over the next two years.
Two points: First, the state doesn't "save" money under this plan, it just generates more revenue from taxing inmate families by seizing money from commissary accounts. Referring to a new tax as "savings" is downright Orwellian.

Second, in past Grits comment strings, medical professionals working at Texas prisons have questioned whether this policy will increase demand for services thanks to changed economic incentives. Presently, many younger, relatively healthy inmates use relatively few medical services. But if they think they're already paying for it, anyway, they may be more likely to ask to see a doctor or nurse for relatively minor complaints. Of course, the $100 doesn't come close to paying for the true cost of their medical services, but from the inmates' perspective, folks who previously paid nothing will now pay $100, and those who previously factored in the cost of a $3 copay now will think to themselves, "Well, I've already paid for the services, I may as well use them." Time will tell, but there's a real risk this move will boost overall medical costs significantly more than the $10 million raised from new taxes on inmate families.

Monday, June 20, 2011

Family trips = truancy? Rent seeking schools punish parents for family travels

A story in the Dallas News published last month ("Texas truancy law offers guidance for some, loopholes for others," May 16, behind their paywall) gave an absurd example of how Texas truancy laws are being misused.  According to reporter Jessica Meyers:
Leila and Frank Pate returned from an extended Christmas vacation in Italy to a court summons. They’d prepared for the travails of travel with young children. But the Frisco couple didn’t envision it leading to a misdemeanor charge and a label of criminal negligence.

“We’re criminals because we took a vacation to see family,” said Leila Pate, who wanted her second-grader and kindergartner to visit ailing relatives in the farthest stretches of southern Italy.

She informed the school district about the trip and packed a bag of class work. The kids practiced their Italian. They received approval for two of the 10 planned absences.

The summons came before the jet lag ended.

The district said the children’s attendance reports showed an unacceptable number of days missed. State law requires schools to prosecute when students skip or arrive late 10 or more days within a six-month period or three or more days within a month.

“We’re looking at [the order] and going, ‘This is just absolutely bonkers,’” said Frank Pate, who runs several businesses with his wife. “This is about money for them.”
Anybody who thinks those kids didn't learn more traveling in Italy than they would have spending that time in school is a fool and a philistine.

Meyers notes that the county and school districts split and $80 fee for each truancy charge, plus "Districts have extra incentive to act diligently because they receive funding based on student attendance." The only loophole to avoid this "crime": Some parents actually withdraw the student from school before such trips then re-enroll them when they return to avoid criminal charges.

It's absurd that the law equates kids playing hooky from schools with their parents taking them on a planned family trip, criminalizing both. A bill passed this session allowing the fee to be waived if it would cause the family economic hardship, but another much-needed fix, at a minimum, would be to accommodate parents who choose to take their kids out of school for short stints because of family travel plans, deaths in the family and other contingencies based on the parents' decisions as opposed to youth skipping school on their own. That's an absurd and pointless story, reinforcing my sense that for school districts this law is more about the money than it is ensuring kids get a good education.

See related Grits posts:

Meet Elsa Alcala, newest Texas Court of Criminal Appeals Judge

While I was out on vacation a little over a week ago, Texas' latest Court of Criminal Appeals Judge, Elsa Alcala, was invested as the court's ninth member, replacing Charles Holcolmb who announced his retirement last year. Alcala was first appointed a state district judge by George W. Bush after a stint in the Harris County DA's office, then later appointed to the 1st Court of Appeals by Gov. Rick Perry. Reported the Austin Statesman, “Alcala, one of five children who lost both parents by age 14, marveled that an 'impoverished, orphaned Mexican-American girl can, through public education and the grace of God, become a jurist on one of the state’s highest courts.'” (In a photo from the Statesman, at left, IMO she looks a bit like Supreme Court Justice Sonia Sotomayor.)

Since her nomination was announced, I've wondered where Alcala will fit on a court led by a self-avowed "pro-prosecution" judge known for often strained, pro-government opinions.  When I asked attorneys I trust about Alcala, the negative responses I received actually related to her husband and brother-in-law, Dan and John Spjut, rather than her. Her husband, a former Houston police lieutenant turned attorney, earned notoriety in a case covered well by Rick Casey at the Houston Chronicle in which his brother repeatedly failed to meet with his client, prepare for trial, or even show up to court in a family law dispute, sending his clearly unprepared sibling Dan to try the case at the last minute. Having never spoken to the client before, Mr. Spjut's direct examination lasted less than four minutes. “Like the ‘sleeping lawyer’ case," wrote 1st Court Justice Terry Jennings, "this case will stand as a significant embarrassment in the history of Texas jurisprudence.”  Indeed, Casey reported, Jennings said "in dissent that Walker received 'assistance' of counsel 'far below that afforded to the criminal defendant in the infamous sleeping lawyer case.'” Two of Alcala's colleagues on the 1st Court of Appeals, however, inexplicably found the Spjuts absentee lawyering was not ineffective. Dan Spjut disputed speculation that the ruling was made out of "professional courtesy" to his wife.

That said, it's certainly not fair to judge Alcala as a jurist on the basis of failings by her husband or brother-in-law. So over the past few days I took some time to skim dozens of criminal opinions she authored on the 1st Court of Appeals - not all of them by any stretch but most of them over the last three years or so and perhaps enough to get a sense of her approach. It's somewhat difficult to infer a Court of Appeals judge's views because they're so bound by the Court of Criminal Appeals' opinions, and for the last dozen years or so Texas' high criminal court has been dominated by Judge Keller and Co., who reflexively go out of their way to side with prosecutors in virtually every instance. But at least one can get a sense of the judge as a writer and thinker, and whether her tendency is to follow stare decisis (past court precedents) or hew her own path.

My take is that, while Alcala is surely conservative and pro-law enforcement, rarely dissented to pro-government opinions in criminal cases, and while she's particularly likely to side with the government in cases involving her husband's former employer at HPD, the judge doesn't appear to be nearly as knee-jerk in siding with prosecutors as, say, Judges Keller or Hervey on the Court of Criminal Appeals. Most of her decisions affirmed lower court rulings and stuck closely to existing precedent, but there were also instances where she demonstrated an ability to think for herself.

A good example may be found in a case out of Waller County in which she upheld a drug possession charge against a defendant but overturned a simultaneous conviction for possession inside a correctional facility. The drugs were in the defendant's purse when she was arrested which was taken to the jail by a police officer where it was logged, searched, and the drugs (less than a gram) discovered. Alcala reasonably ruled that the defendant did not bring drugs into the jail but in fact the arresting officer did. But I can easily imagine the pro-government wing of the CCA allowing that sort of phony baloney charge to stand.

In another case, she upheld a Batson challenge (racial bias in jury selection) out of Smith County in which the current and former DA were implicated in racially biased "strikes" of all African-American jurors. Certainly the CCA's record on Batson challenges, most famously in the Miller-El case, decided by the US Supreme Court in 2005, can hardly be described as sympathetic toward Batson claims. But Alcala's decision fairly closely tracks SCOTUS reasoning in the Miller-El case to evaluate race-neutral claims for juror strikes in a way I doubt Judge Keller would find remotely palatable. In another case involving a jury trial at municipal court, she reversed and remanded the conviction to a County Court at Law because a proper Batson hearing hadn't been held.

In one of Alcala's rare dissents in a criminal case, she would have reversed and remanded a conviction because the trial court did not instruct the jury to consider the possibility of convicting only on a lesser included offense, since the jury could have plausibly inferred that the defendant was not in immediate flight when an assault occurred a half hour after a theft. I don't suspect for a moment Judge Keller or Hervey on the CCA, for example, would have blinked before signing off on the majority opinion, but Alcala's dissent smartly parses the case law to make distinctions between the instant case and those cited by her colleagues affirming the decision.

Similarly, in another case, Alcala authored a decision reversing a conviction and ordering a new trial because a judge did not give a jury instruction involving self defense in a case where an abused son killed his father. An earlier opinion overturned the murder conviction of a 70 year old widower on the same grounds.

In a habeas writ from a misdemeanor DWI case, Alcala sided with the defendant to say that the trial court had erred in refusing to grant habeas relief, saying his retrial was barred by double jeopardy. According to the opinion, "The constitutional double jeopardy protection embraces the defendant’s right to have his trial completed by a particular tribunal. [citation omitted] When a mistrial is declared over the defendant’s objection after the jury is sworn, a retrial is barred by double jeopardy unless there was manifest necessity for the mistrial." In that case, a juror had a heart attack during trial, but the defendant was willing to go forward using only five jurors. The judge instead declared a mistrial and ordered the defendant retried, which Alcala and her colleagues said violated US Supreme Court precedent.

None of that, of course, should lead readers to think Alcala's 1st Court of Appeals work wasn't mostly supportive of prosecutors, and often when there was a judgment call to be made, she went against defendants. In one case, she upheld indecency with a child by contact even though the alleged victim's sister - who supposedly witnessed the event and confronted the alleged molester, according to the victim's testimony - insisted she recalled no such incident. While corroboration is not required to secure a conviction in such cases, when a corroborating witness is named and that person wholly disputes the victim's account, it's hard for me to see how a rational juror could say there's not reasonable doubt. Alcala, though, deferred to the jury, refusing to "substitute our judgment for theirs." There were other examples where Alcala sustained convictions based on remarkably shaky evidence, at best, on the same grounds.

In another case, Alcala had no problem with officers talking a witness into a greater level of certainty during a photo lineup, covering up facial hair in the photos and giving her confirming details about his height that that may have later tainted a live lineup. Of course, Texas hadn't then passed the legislation approved this year governing lineups and requiring police to have policies on the subject, but she certainly seemed willing to give officers a lot of leeway in such matters.

Even more leeway was granted when Alcala authored an opinion overturning a conviction of a Harris County Sheriff's deputy involving a telemarketing scam run on behalf of the union, using a much more defense-oriented analysis of sufficiency of the evidence than any average, non-officer defendant should ever expect to receive from her. All of a sudden, when a Harris County Sheriff's deputy was accused, her habitual deference to juries went out the window.

In all, one imagines Governor Perry could have done worse than Alcala's appointment (particularly given that last year rumors swirled that Williamson County DA John Bradley might be named to the slot). Her views don't reflect my own, but neither do I suppose she'll just be another yes-woman to Judge Keller and the faction she leads on the CCA. Grits has written before that "There is no liberal wing on the Texas Court of Criminal Appeals. There's a conservative wing ... and a more or less totalitarian wing." From reading this sample of opinions, I'm hopeful, if not certain, Alcala may end up residing in the former camp.

Friday, June 17, 2011

Perry vetoes new crime of texting while driving

Governor Perry's vetoes are out, and they include one of his first ever criminal-justice vetoes I actually agree with! The Governor vetoed HB 242 which created penalties for a new offense of texting while driving for adults. His reasoning:

 Texting while driving is reckless and irresponsible. I support measures that make our roads safer for everyone, but House Bill 242 is a government effort to micromanage the behavior of adults. Current law already prohibits drivers under the age of 18 from texting or using a cell phone while driving. I believe there is a distinction between the overreach of House Bill 242 and the government's legitimate role in establishing laws for teenage drivers who are more easily distracted and laws providing further protection to children in school zones.

The keys to dissuading drivers of all ages from texting while driving are information and education. I recommend additional education on this issue in driving safety and driver's education courses, public service ads, and announcements, and I encourage individuals and organizations that testified in favor of the anti-texting language included in this bill to work with state and local leaders to educate the public of these dangers.

I agree with pretty much everything in that veto statement. Who'da thought?

See related Grits posts:

False arrests for DWI in Austin highlighted by bust of talk-show host

Local radio talk show host and former All-Star Longhorns place kicker Jeff Ward recently had DWI charges dropped against him after prosecutors viewing the dashcam video deemed there was no probable cause to believe he'd committed the offense, reported the Austin Statesman. Travis County Attorney David Escamilla told the paper, "After our review of the evidence, including the officer's in-car video, we confirmed to APD that there was not sufficient evidence to support a DWI charge." Ward issued a statement afterward declaring "I have been respectful and patient throughout the process, knowing from the outset that I was not intoxicated. There was no reason to go forward with the case. I can only hope that my innocence is reported and discussed with the same enthusiasm as my arrest."

The incident re-raises an issue the Statesman tackled last month in a story revealing that Travis County dismisses "a higher percentage of drunken driving cases than other major Texas counties, in part because prosecutors said police filed weak cases." As indicated in the chart at left, law enforcement in Travis County - primarily Austin PD - arrest nearly twice as many people for DWI as other large Texas jurisdictions, and those cases are dismissed from 2-10 times more often than those other locales, raising the possibility that police in Travis County are systematically arresting people for DWI when there's no cause to believe they're drunk.

For years I've heard defense attorneys in Travis County complain that APD will arrest drivers merely if they've been drinking, whether or not they fail field sobriety tests or blow .08 on a breathalyzer, claims corroborated by the Statesman's findings and Ward's experience. An attorney in the May Statesman story voiced that view: "'Generally speaking, I think if you have alcohol on your breath in Austin, Texas, you are going to jail,' said Brian Roark, an Austin defense lawyer and former county prosecutor."

Wherein lies the problem. Drinking and driving, while increasingly a cultural taboo, is not in and of itself a crime. Driving with a blood alcohol content over .08 is a crime, but arresting everyone with alcohol on their breath inevitably ropes in people who've had a drink or two but are still abiding by the law. Folks like Ward may eventually have charges dismissed, but they've often still spent a night in jail, often paid thousands for an attorney, and in Ward's case, suffered needless public embarrassment.

Austin Chief Art Acevedo told the Statesman, "My No. 1 priority is telling my officers, 'Don't you worry about what happens to the court piece, your job is to get people off the road,'" which sounds to me like the department is encouraging a pattern and practice of false arrests systematically from the top down. Surely the "#1 priority" of police in such circumstances shouldn't be "to get people off the road" no matter what, but to determine first and foremost whether they've actually committed a crime.

Can imprisonment rehabilitate?

The US Supreme Court yesterday held in Tapia v. United States (pdf) that federal law "does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation" in federal cases. (See SCOTUSWiki's case backup page, Doug Berman's first-take analysis here, and coverage from the Los Angeles Times, the Sacramento Bee, McClatchy Newspapers, and UPI.)

The defendant had been sentenced to the Bureau of Prisons with a recommendation that she participate in the Residential Drug Abuse Program (RDAP), but Ms. Tapia argued that the terms of the sentence (a lesser sentence for completing a rehabilitation program," violated a Congressional command that judges “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” Justice Kagan's opinion declares that "A court does not err by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs." And a footnote mentions that “Congress did not intend to prohibit courts from imposing less imprisonment in order to promote a defendant’s rehabilitation.” But in this case, wrote Kagan, "the record indicates that the District Court may have increased the length of Tapia’s sentence to ensure her completion of RDAP, something a court may not do."

Kagan identified the four stated purposes of criminal sentences - retribution, deterrence, incapacitation, and rehabilitation - but explained that federal law does not allow all of them to be considered in crafting different types of sentences. For example, not only may rehabilitation not be considered when ordering imprisonment, but "retribution" may not be considered when ordering community supervision. Kagan found especially "illuminating ... a statutory silence—the absence of any provision granting courts the power to ensure that offenders participate in prison rehabilitation programs."

The opinion does not impact state courts, interpreting only a federal criminal statute, but this same issue comes up frequently in the context of drug courts, which in Texas may require longer-than-usual incarceration stints in secure lockups known as "community corrections" facilities as a condition of probation for up to two years to facilitate rehabilitation.. For that matter, the statute authorizing drug courts explicitly allows "a court [to] use other drug awareness or drug and alcohol driving awareness programs to treat persons convicted of drug or alcohol related offenses."

So while the federal statute explicitly excludes rehabilitation as a goal of incarceration on the grounds that locking someone up is "not an appropriate means of promoting correction and rehabilitation," Texas law specifically contemplates imprisonment in a secure facility in pursuit of rehabilitative goals.

The Catch-22 for Texas' stance comes in cases like Tapia's where a defendant is recommended for a treatment program but there are lengthy delays because of a shortage of treatment capacity (Tapia, despite the court's recommendation, never actually entered the federal RDAP program). Another version of that phenomenon: Texas' parole board frequently extends prisoners' time they're incarcerated because they've not completed this or that treatment program, even when the reason they didn't complete it is a lengthy waiting list for services, not anything the prisoner did or didn't do. That's been an issue most particularly in DWI cases, but at various times that observation would also apply to drug treatment, sex-offender treatment, and other rehabilitative programs.

Should rehabilitation goals be considered in sentencing someone to prison? While Kagan finds ample backing to say federal law "precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation," it's an open question - one on which I'd like to hear Grits readers' opinions - whether that's the right policy.

It's also interesting to me, though understandable, that drug treatment in a secure facility is equated in this opinion with pure "imprisonment" with no rehabilitative goals. In Texas political debates and even in the statutes, treatment in a secure facility is considered a separate beast from straight up imprisonment - an "alternative to incarceration," in the parlance. But the offender is still locked up while receiving treatment. What do you think? Is this a distinction without a difference?