Sunday, November 20, 2011

Messing with Texas death sentences, and other stories

Grits noticed several interesting if disparate items I thought I'd pass along:

Peach state contemplates de-incarceration
In Georgia, a special task force on reducing prison costs has released its recommendations. See the full report (pdf). Among them:
  • Reserve expensive prison beds for the most violent, high-risk offenders and find alternatives for nonviolent offenders found to be low risks to offend again.
  • Readjust the sentencing ranges for burglary, with more serious punishment reserved for break-ins of homes and less severe sentences for burglaries of unoccupied structures, such as tool sheds, barns and buildings.
  • Decriminalize minor traffic offenses that clog up the court system, making them violations and not misdemeanors.
  • Expand access to effective substance abuse and mental health treatment in communities across the state.
  • Allow inmates and those under supervision after release to be allowed to shave time off their sentences if they behave and take affirmative steps toward rehabilitation.

Okies suggest reforms around incarcerated fathers
In Oklahoma, a task force examined the issue of fathers in prison and the impact on their children:
Ideas for how to improve the father-child bond are among the recommendations that the task force will make to the Oklahoma Legislature.

For one, the issue of how incarcerated fathers pay child support has been discussed.

Basler said many incarcerated fathers don't mention their children because they owe child support and don't understand how to apply for a reduction in payments while incarcerated.

Because of this issue, the task force has on its list of recommendations an informational DVD on child support that would be shown to offenders upon entry.

Other recommendations include creating a standardized parenting curriculum and increasing the availability of parenting classes, increasing communication through video technology such as Skype and providing training for police on how to deal with an arrest when a child is present.

Tracking the trackers: Analyzing the tools of high-tech surveillance
With the US Supreme Court currently considering whether GPS tracking devices should require a warrant, I was interested to see a law student note titled "Where are we now? Location tracking, technological change and the Fourth Amendment." As it turns out, says the article, "courts use the term 'GPS tracker' to mean any one of a number of different kinds of devices, all with varying capabilities." The note purports to "analyze the specific details of current tracking devices—how they work, what they can do, and what they cannot," exploring the implications of those factors on Fourth Amendment jurisprudence. In particular,
some location tracking devices reveal the target’s location every second of every day, while others only provide information when asked; some devices require the investigator to approach the car to retrieve the information, while others allow the officer to retrieve the information from miles away; some devices are incredibly accurate, while others provide only general tracking information such as the direction and approximate distance of the target; some are able to alert the police when a target is moving or is outside of a certain area, while others require the police to retrieve the device from the car in order to download the information; some are powered by batteries, while others are connected to the suspect’s car and draw power from its power source.

All of these factors could be relevant to the Fourth Amendment analysis. For example, devices that investigators attach to car batteries may result in an unlawful seizure of the battery power or violated a protected interest in the car, and devices that allow the investigator to access the information from anywhere in the world may reveal information that is not actually exposed to the public the same way as devices that require police action. Increasingly more accurate devices may violate the sanctity of the home.
Grits had argued in the wake of oral arguments in the Jones case that the courts appear incapable of addressing these issues and that state legislatures should step in to fill the void. On that front, the article noted that:
a half-dozen legislatures have prohibited the use of electronic tracking devices without prior judicial approval. In California, for example, the legislature made it a misdemeanor to “use an electronic tracking device to determine the location or movement of a person.” The legislature made an exception for “the lawful use of an electronic tracking device by a law enforcement agency,” but it does not define the term lawful use. It did, however,“declare [...] that the right to privacy is fundamental in a free and civilized society and that the increasing use of electronic surveillance devices is eroding personal liberty. The Legislature declares that electronic tracking of a person’s location without that person’s knowledge violates that person’s reasonable expectation of privacy.”

What's messing with Texas death sentences?
Via CrimProf Blog, law professor David McCord from Drake University examined the causes of the decline in death sentences in Texas over the last couple of decades, noting that the decline in Texas death sentences has almost precisely mirrored the national decline over the same period:
During the peak five-year period for Texas death sentences—1992-1996—an average of 40 per year were pronounced; by contrast, in the most recent five-year period—2005-2009—an average of only 14 death sentences per year were handed down. The drop from 40 to 14 per year represents a 65% decline. In this, Texas has almost exactly mirrored and participated in the national trend: from an average of 312 death sentences per year nationwide in 1992-1996, to 119 per year for 2005-2009—a 62% decline.
So why has Texas witnessed fewer death sentences?
Analysis reveals five causes for the decline, with varying degrees of effect. Three causes are changes in the legal landscape: 1) fewer capital murder convictions—modest effect; 3) the advent of the life-without-parole (LWOP) alternative—large effect; 3) and the exemption of mentally retarded and juvenile defendants from death sentences—modest effect. The other two changes are at the county level beyond what can be accounted for by the three causes above: 4) the less-populous county opt-out—large effect; 5) the Harris County plunge—large effect.
Of these, the least discussed factor is the "less-populous county opt out." Smaller counties are seeking death sentences much less often than in the past, largely because of cost. Notes McCord, “Back in 2001 the Houston Chronicle reported that in smaller counties, '[County] commissioners have been known to second-guess prosecutors, raise property taxes, or suggest passing special bond issues to pay for death penalty trials.'”


    A Texas PO said...

    I've been told by several ADAs that they would rather push for life or LWOP for murder and capital murder cases largely because of the cost. The cost of defending a death penalty appeal can bankrupt some judicial districts/counties in this state.

    Anonymous said...

    What;'s worse concerning the tracking devices--and I certainly wish the Supreme Court could weigh in on this, though in this case I don't know if they can--is whether an offender should receive credit towards his or her sentence for time served confined to his home on a GPS tracking device. Current policy in Texas is that an offender can be detained at his or her home on SISP parole, and if he later pissed dirty or commits any other violation, whatever length of time, whether it be months or even years, is required to be reserved again. The result is that the offender, e.g., sentenced to 20 years ends up being detained, confined, or otherwise punished for, say, 22 years. Senator Whitmire introduced a bill last session to remedy this, but the bill was never even voted on in the Committee he Chairs, assumedly because on the occasions it was scheduled for testimony, quorums were not present for a vote to be taken. This is not only about fairness, due process, and double jeopardy, it is also about huge cost-savings to the tune of a couple hundred million a year.