Jury: No liability, this time, but improvements needed in MH treatment at Travis County Jail

In Travis County, a federal jury declared that, although jailers weren't the "proximate" cause of Rachel Jackson's death, but there were areas where the county's operation of its jail needs to improve. Reported Steven Kreytak at the Austin Statesman:

A federal jury in Austin ruled [Friday] that neither the actions of Travis County officials nor of a former jail psychiatrist caused the death of a mentally ill woman found dead in her cell in 2008. But in an extraordinary move, the jury issued a statement calling on the county to improve the operations of its jails.

Following the jury’s decision in the lawsuit brought by the family of 21-year-old Rachel Jackson, who died while in “psych lockdown” in the Del Valle jail, U.S. District Judge Sam Sparks agreed that the panel could read a statement into the record.

“While we cannot find that Travis County proximately caused the death of Rachel Jackson,” the foreman said while standing in the jury box, “we do see significant opportunity for improvement in the processes, documentation and communication within the Travis County Correctional center.”

Outside the courthouse, jurors declined to elaborate on the statement to a reporter.

In too many cases, jails and prisons substitute for mental health beds, and that appears to be what happened here, with fatal results. Jail facilities weren't created for this purpose, jail staff for the most part aren't trained for it, and in general the criminalization of mental illness has become one of the darkest stains tainting modern society. I'll be interested to learn more about the concerns underlying jurors' public statement.

RELATED: From Patricia Kilday Hart: "Help mentally ill on outside so they don't end up inside."

No indictments from Houston BAT van probe

A grand jury investigating misconduct at the Harris County District Attorney's Office declined to issue indictments, but put out a stinging public statement critical of the DA's Office's handling of the affair. Reports Brian Rogers at the Houston Chronicle:

A Harris County grand jury ended its session Tuesday, ending a months-long investigation into the district attorney's office and the Houston Police Department's DWI testing vehicles with a blistering report, but no indictments.

"There was no evidence of a crime," said grand jury foreman Trisha Pollard.

Pollard signed off on a one-page report blasting the DA's office for "unexpected resistance" and accusing the office of launching an investigation into the grand jurors, the special prosecutors and judges.

The grand jury also harshly criticized Rachel Palmer, a prosecutor who invoked her fifth amendment right to refuse to testify.

"The stain upon the HCDAO will remain regardless of any media statements issued or press conferences issued by anyone," according to the statement.

Certainly, the spectacle of a prosecutor taking the 5th Amendment to avoid testifying was an almost absurdist display, and Grits cannot recall another DA called to testify before a grand jury in the fashion that occurred here. I'm not sure what if anything has been resolved, or what conclusions to draw. I'll look forward to reading a copy of the grand jury's report.

MORE: Big Jolly, who sees this as vindication for Pat Lykos, has posted the grand jury statement and Lykos' official  response. Lykos portrays the grand jury proceedings as a witch hunt by her political enemies, and there is something to that assessment. But I also think the DA's Office and especially Houston PD bear responsibility in the matter. One of Lykos' prosecutors, Rachel Palmer, notoriously took the 5th (the right against self-incrimination) instead of testifying about activities performed on the job. That's a highly unusual development, and it's hard not to wonder if the outcome of the investigation might have been different if the ADA had testified. Lykos likely deflated the matter as a campaign issue, though, by testifying herself.

The DA's public statement declares, "Despite repeated public insinuations to the contrary, there was no criminal conduct in the operation of HPD BAT vans, nor was  there suppression of evidence." "No criminal conduct" I'll accept, but the truth is Houston PD knew about problems with BAT vans in fall 2010 when the issues were raised by their own analysts, two of whom later resigned rather than participate in flawed forensics. It was only after defense attorneys found those ex-analysts and brought one of them to court that anyone in officialdom publicly acknowledged potential problems with BAT vans' accuracy. So while this may be the end of the runaway grand jury story (and HPD BAT vans generally, which are being phased out later this year), your correspondent sees little vindication for anyone coming from this episode, just an enormous politicized mess that pretty much tarnished everyone remotely associated with the process.

AND MORE: From Mark Bennett, who thinks the DA's Office may have improperly used a secure database in violation of federal law.

Court-of-inquiry a unique Texas proceeding for seeking justice

From Tim Cole's posthumous exoneration to a failed effort in the Todd Willingham case and now in the aftermath of Michael Morton's exoneration, defense attorneys have sought to use courts of inquiry, not always successfully, to ferret out injustice and police and prosecutor misconduct when official channels have been barred. The military has a much-different process with the same name, but according to the Texas Tribune, the type of "court of inquiry" sought in the Michael Morton case is unique to Texas, and the proceedings have been upheld as constitutional by the federal 5th Circuit. The Trib has a "Texplainer" column on these rare proceedings, which have "primarily been used in attempts to resolve issues related to wrongful convictions."

Chiefs' push to weaken eyewitness ID improvements could boost market for defense experts

Law enforcement interests, both through the Texas Police Chiefs Association and individually, are seeking to undermine the new model eyewitness ID policy from Sam Houston State University's Law Enforcement Management Institute of Texas (LEMIT), produced under the auspices of a bill, HB 215, passed last year at the Texas Legislature.

LEMIT did a fine job creating the model policy (pdf), by most expert accounts, closely following the large body of research developed in the last three decades on preventing eyewitness errors. Many of their recommendations were included in best practices from the National Institutes of Justice as far back as 1999, so for the most part these are not new ideas. But some chiefs are balking at prescribing neutral witness instructions, as well as using blind administration and presenting photos sequentially. Animated by these complaints, the police chiefs association reportedly is attempting to develop its own, watered-down policy to promote among its members in lieu of the official one.

The first shot across the bow of LEMIT's model policy at the capitol came in a letter from McAllen Police Chief Victor Rodriguez (uploaded here) to Senate Criminal Justice Committee Chairman John Whitmire, offering a stream of red herrings and misinformation about the law and the new model policy. See also an informative FAQ (pdf) created by LEMIT in response to agency questions.

Under the new statute, LEMIT produced a model policy but law-enforcement agencies are not required to follow the university's advice. Local departments must enact their own "detailed written policy," including specific "procedures" in several different areas, by September of this year, but the law does not require them by any means to adopt the model. Soon after the Legislature left town, however, the Texas Court of Criminal Appeals gave departments a big, extra incentive to use LEMIT's version.

Before getting to that, however, it's worth disputing Chief Rodriquez's utterly bogus, central claim that "unless a law enforcement agency chooses to risk evidentiary admissibility of a photograph or live lineup in a criminal matter, that agency must prove up adoption of the LEMIT policy or the 'credible research' or proof of '[common acceptance]' behind that agency's adopted procedures." This is ... how may we put it delicately? A lie.

The new statute specifically says that "Evidence of compliance with the model policy or any other policy adopted under this article or with the minimum requirements of this article is not a condition precedent to the admissibility of an out-of-court eyewitness identification." (Emphasis added.) So there is literally zero, nil, zilch, nada chance that eyewitness testimony won't be admitted because of this law. "Our side" considered it a loss (I was lobbying for the Innocence Project of Texas on the subject), but the law simply did not give criminal defendants the means to keep eyewitness testimony out of evidence if lineups don't follow written policies, nor if written policies are inadequate.

Ironically, though Chief Rodriguez wants to blame the Legislature for his woes, the much more significant penalty for failing to follow best practices was laid down in October by the Texas Court of Criminal Appeals in a case called State v. Tillman (pdf).  In Tillman, Texas' highest criminal court ruled that a judge abused his discretion by failing to allow expert testimony to tell a jury about flaws in a police lineup - a truly landmark ruling for that particular court.

Combined with HB 215, however, that ruling takes on even greater weight, informing us what the real "penalty" will be if departments adopt policies not based on the LEMIT model policy or credible research: The county may have to pay for expert witnesses for indigent defendants - or allow expert testimony for defendants with their own counsel - to explain how deviation from best practices might harm the accuracy of identifications. In other words, if a local department chooses not to follow the LEMIT policy, they have a right to do so and all witness testimony will still make it into evidence. But if a department failed to follow key best practices - particularly if they overtly chose to do so by deviating from the LEMIT policy - it seems hard (at least for this non-lawyer) to see how judges could interpret Tillman any way other than to require judges to admit expert testimony critical of the deviant policy - to do otherwise, according to Tillman, would constitute an abuse of discretion..

So no, eyewitness testimony will NOT be thrown out if local departments don't use LEMIT's model policy. But counties may have to pay for expert witnesses that wouldn't be necessary if law-enforcement agencies based their policies on science instead of habit and folklore. Further, LEMIT's model policy could provide courts a handy guideline as to whether a local policy deviates from best practices. Though at this point we may only speculate, Grits won't be surprised if the LEMIT policy becomes the de facto standard by which Texas judges analyze whether the defense gets a Tillman expert.

Finally, at the Innocence Project of Texas (IPOT, from whom your correspondent draws his main paycheck) we're planning to ask under open records for eyewitness ID policies at more than 1,000 Texas law-enforcement agencies this fall after the deadline passes for policies to be finalized. IPOT will evaluate policies based on compliance with LEMIT's published model policy, grading each to identify which followed best practices and which are deficient. So now judges have a standard to judge whether a deviant policy or procedure violates best practices (LEMIT's model policy), and by the end of the year they'll a handy list of departments whose base policies fail to pass muster.

It's true, then, that there will be a lot of pressure on local departments to simply adopt the LEMIT policy, with most of it coming from the judiciary and the court of public opinion, as opposed to any language in HB 215. Eyewitness testimony in all cases will remain admissible under the new law, regardless of what local policies are adopted or whether they're followed. But the CCA has created a greater incentive for compliance in Tillman than the Lege could last year muster. Color Grits unsurprised that there are police chiefs out there grousing about the new statute and the contents of the model policy, even if their complaints come a day late and a dollar short.

See related Grits posts:

• Model eyewitness ID policy includes sequential presentation
• Public hearing on eyewitness ID model policy
• Will new Texas eyewitness ID law reduce false convictions?
• Onus on state, local departments to improve eyewitness testimony
• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

Hate crimes statute seldom used

I neglected to mention that at the Austin Statesman, Eric Dexheimer last week had a lengthy item in which your correspondent was briefly quoted critiquing Texas' seldom-used hate crimes statute, which has yielded just 10 successful prosecutions since Gov. Perry signed it into law in 2001. "'The law should punish bad actions, not unpopular or ignorant beliefs,' said Scott Henson, who writes the Grits for Breakfast criminal justice blog. 'It's another enhancement passed more out of political posturing than from good public policy or common sense.'"

From Grits' perspective, the hate-crimes statute flew in the face of the concept of equal protection under the law, creating an Animal-Farm type scenario where some are theoretically more equal than others. Of course, the same is true of nearly all "enhancements." E.g., when the livestock industry successfully seeks state-jail felony status for theft of a $35 goat, that means stealing from a protected class gets harsher penalties than stealing from you or me. The same theory underlay Texas' hate-crimes enhancements, and like so many special-interest driven enhancements (how many people are prosecuted for Texas' eleven oyster felonies, after all?), the statute in practice is seldom used.

Besides, aren't nearly all murders hate crimes? (Or at least the ones that aren't part of black-market business transactions?) Is the murderer's grim endeavor or the harm they reap worsened because the perpetrator indulged racist thoughts, or mitigated if they were thinking of unicorns and rainbows while dispatching their victims? I think not. Though it was enacted before this blog began, your correspondent disliked Texas' hate-crimes law at the time it passed and sees nothing to dislodge that view now that history has borne out most of its weaknesses and so few of the benefits touted by its proponents.

Houston Chron surveys employee discipline at county jail

At the Houston Chronicle, James Pinkerton has a story today ("Discipline problems persist behind bars," Jan. 30) describing employee misconduct that spawned disciplinary actions and terminations at the Harris County Jail from 2008 to 2010. The article opens:

A female jailer ordered, without authorization, an entire cellblock of women prisoners to strip naked during a July 2010 search. She's still on the job.

Another jailer punched a seriously ill inmate as he lay in the infirmary in May 2010. The inmate died the next day, and the jailer's punishment: one day in jail.

Last year, a sergeant slugged an inmate so hard it took 14 staples to close a gash over his eye. The sergeant said the inmate raised his hands to hit him, but other jailers swore the inmate didn't. The sergeant was fired but not charged with a crime. He's fighting to return.

These incidents and dozens of others highlight how the Harris County Jail, one of the busiest in the nation, continues to experience problems similar to those cited in a 2009 U.S. Department of Justice report critical of the use of excessive force against inmates.

A Houston Chronicle review of disciplinary records indicates that from 2008 through 2010, more than 200 jail employees were disciplined for various offenses, some serious and others minor. Last year, the Sheriff's Office disciplined 88 employees working in detention, including jailers, deputies and civilians.

Their offenses included excessive use of force, having sex with inmates, mistakenly releasing dangerous prisoners including suspected drug dealers, sleeping on the job, and even leaving their post to have a 90-minute-long domino game. One jailer destroyed mail sent to prisoners, and another ruined a picture of an inmate's son by spraying it with cleaning solvent. 

Read the whole thing; it's an interesting snapshot of an HCSO disciplinary process rarely glimpsed by the public.

Indeed, Grits' pitch in light of this coverage goes out to TV and print editors and local criminal-justice beat reporters across Texas and beyond: Pinkerton's story could be replicated via open-records requests for any county jail in the state. In fact, information requests about misconduct by Sheriff's deputies get MORE information than comparable requests in many larger police departments (at least those in municipalities which have adopted civil service under Chapter 143 of the Local Government Code) because their activities are governed by the much-more transparent Public Information Act (Chapter 552 of the Government Code). So it's more difficult under that statute (though by no means impossible) for agencies to conceal embarrassing documents. Without reporters like Pinkerton digging into public records, in most cases these stories would remain forever secret. Notably, spokesman Alan Bernstein told the Chron, "families are not told of incidents that happen in jail unless they cause death."

Of course, as is always the case, such anecdotes do not speak to the character or professionalism of every HCSO employee. In most law-enforcement and correctional settings, a minority of officers are responsible for a disproportionate share of misconduct allegations, and that's surely the case at HCSO. Still, the story gives outsiders an idea of the range of disciplinary challenges facing managers at one of the nation's largest jails. And it's certain they're not unique.

It's great that a city the size of Houston gets this sort of in-depth, research-based coverage, but there's no reason Pinkerton's methodology couldn't be reproduced by media in other jurisdictions. You never know what you'll find until you look.

Did APD detectives commit felony investigating Morton-Baker cold case?

Police can lie to suspects to get a confession; that is well established law. But what, exactly is a lie?  As it turns out, that was well established law, too, at the time Austin PD officers allegedly crossed the line to hoping Mark Alan Norwood would confess to the murder of Debra Baker. Austin police "doctored" a forensics report to try to get Norwood - now the prime suspect in the Christine Morton murder case for which her husband, Michael was falsely convicted and spent 25 years in prison - to confess to murdering Baker, reports Tony Plohetski this morning in the Austin Statesman ("Austin police use of doctored DNA report in interrogation raises questions," Jan. 29):

As his defense lawyers were working to free Michael Morton from prison because of a wrongful conviction that raised questions of prosecutor misconduct, Austin police doctored a crime lab report to use during the interrogation of a suspect in a related case, the American-Statesman has learned.

Austin police officials and Travis County prosecutors confirmed last week that they are looking into the techniques investigators used as they questioned Mark Alan Norwood during lengthy interviews in September.

The detectives used what Police Chief Art Acevedo called "an investigative prop" when seeking information from Norwood in the 1988 bludgeoning death of Debra Masters Baker in her home.

Officials at the state crime lab told Austin police cold case investigators that DNA tests had linked Norwood to the crime scene, officials said. But investigators did not yet have the written report, so they took a DNA report from a separate case, altered it to indicate it was from the Baker case and showed it to Norwood during the interrogation, officials said. Acevedo said the scientist who conducted the test also had authorized them to share the result.

Norwood didn't confess and has not been charged in Baker's death but remains a suspect, according to Austin police.

Norwood's lawyer and legal experts said they do not think the officers' actions will impede the case because Norwood did not confess, but several raised concerns about whether the detectives' actions may have violated laws on evidence tampering. 

So if cops can lie, what's the problem here? Well, altering documentary evidence goes a bit beyond lying, and is clearly prohibited under not just one but two separate felony statutes. Thus, Chief Acevedo's artful attempt to re-frame the document as "an investigative prop," rather than an actual crime-lab report doctored to suit investigators' needs.

Lying to suspects, while clearly legal, isn't always a great idea and can have its own harsh, unintended consequences. Nobody should know that better than Austin PD, which has a long, inglorious history with false confessions, most famously with Christopher Ochoa's and Richard Danziger's false convictions, not to mention with the botched Yogurt Shop murders investigation, in which details of the crime scene were leaked and police obtained more than 50 false confessions, likely including the men they prosecuted for the crime. APD has a track record of reacting in a frenzy in high-profile cases to put maximum pressure on a suspect. (Witness Chief Acevedo's congratulatory comments to the community after public pressure apparently prompted a suspect's suicide: "I personally want to thank the people of Austin," he said. "We put pressure on this person with that community outpouring.")

Against that backdrop, doctoring lab reports to manipulate suspects strikes Grits as par for the course at APD, and indeed Chief Art Acevedo essentially defends the practice as well as the integrity of the investigators. Plohetski notes that:

Police are generally allowed to deceive suspects during interrogations in an effort to get a confession, but the creation of a false government document to use in such interviews raises legal questions. A March 2010 decision by the Texas Court of Criminal Appeals threw out the confession of a man in San Antonio after a detective obtained the statement by using a falsely created report showing the suspect's fingerprints were on a gun used in a homicide.

Tony might have cited not only the 2010 Court of Criminal Appeals case throwing out a confession when it was obtained with a fabricated document, but also Texas' Penal Code Sec. 37.09, which defines felony evidence tampering, in relevant part, as when someone "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding." Under that provision, evidence tampering is a third degree felony garnering as much as 2-10 years in prison, plus assorted fines, fees, etc..Or prosecutors could potentially apply Sec. 37.10 of the Penal Code, Tampering with a Government Record, which applies a similar penalty to anyone who "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." Allegedly making up a phony lab report for use in an interrogation (one assumes they did it "to affect the course or outcome of the investigation") tracks almost exactly the language of activity made illegal under the Penal Code.

It should be said, these were not rogue detectives but instead the activity in question is apparently routine departmental pattern and practice. Indeed, the detectives in question, reports Plohetski, were ordered by their supervisor to manufacture the document.

The story quotes County Attorney David Escamilla saying he will take any appropriate action, but if these two penal code provisions are indeed the applicable law, one would expect it prosecuted in district court as a felony by DA Rosemary Lehmberg, whose office commendably uncovered the alleged misconduct. However, reports Plohetski, Lehmberg asked Escamilla "to oversee the inquiry because of the assistant district attorney's involvement in the case." (Grits hopes that doesn't mean he'll limit the investigation to misdemeanors; I don't understand why the prosecutor's role explaining the law to APD would require the DA Office's recusal.)

Surely the relevant felony statutes were taught to investigators during their training (if not, you can be sure ignorance of the law, in this case, will be treated by the civil service system as an excuse). Both existed long before the 2010 court ruling, though Chief Acevedo acts in the story like this is something new under the sun that would have changed departmental practices had he known about it. Either way, it's the actual fabrication of the document that may get detectives in trouble (or, IMO more likely, not). If detectives had told Norwood a lie about the report's contents and he believed it, they'd fall well within the realm of legality, whatever one may personally think about the tactics of deception in interrogations. But they allegedly went several steps further.

Whatever excuses Chief Acevedo wants to make for his detectives, the law limits them just like everybody else. And if it turns out detectives were never trained on these longstanding penal code provisions, much less recent court rulings governing Texas interrogations, he and his command staff may need to find a mirror to accurately place blame for Austin PD instructing its detectives to commit felonies in the course of a cold-case homicide investigation.

MORE: See a Statesman editorial on the topic.

Childress boot camp 90% empty amidst questions about value, recidivism

A lingering anachronism from a failed social experiment, the Amarillo Globe-News ("Boot camps: Learn new or pay later," Jan. 26) describes a boot camp facility that barely receives commitments these days (370 out of 400 beds are empty), as well as debates within criminal-justice circles over whether such programs make sense given well-documented evidence that they do not reduce recidivism. Here's an excerpt from the article by Joe Gamm:

Criminal Justice officials would not permit an Amarillo Globe-News reporter access to the Roach Unit near Childress, but a prison official offered a small glimpse into life behind the fences.

“It involves physical activity and community projects,” said Criminal Justice spokesman Jason Clark. “They have accelerated GED projects over there. They are inmates who are sentenced through the district courts — they are not prison inmates. There are only 30 people in there right now.”

The unit has 400 beds available for the boot camp — 370 remain empty.

Boot camps were the rage nationwide in corrections circles in the late 1980s and early ’90s, but faded away as questions emerged about whether they prevented recidivism.

Studies conducted by the U.S. Justice Department, National Institute of Corrections and academia showed boot camps weren’t effective programs, said Terry Easterling, probation director for Potter, Randall and Armstrong counties.

As the programs closed, a 2003 Justice report, “Correctional Boot Camps: Lessons From a Decade of Research,” concluded that corrections officials should learn from boot camps’ failure to reduce recidivism or prison populations. The report said corrections personnel should emphasize programs to ease offenders’ re-entry or re-integration into their communities. Corrections systems should offer more treatment programs, the report said.

The camps evolved from early ’80s Scared Straight programs, said Easterling said, but probation officials remain divided about their effectiveness.

See related Grits posts:

• GAO criticizes boot camp fraud and abuse
• Juvenile Boot Camps in Texas
• Harris may shift juvie 'boot camp' to treatment model

Montgomery County seeks to reduce jail costs from mentally ill

The Conroe Courier yesterday had the story of a new mental health docket in Montgomery County (using "managed assigned counsel," whatever that means) created with a grant from the Texas Indigent Defense Commission aimed at diverting mentallly ill defendants from the jail:

In the past few days, the county launched its managed assigned counsel program for indigent defendants to focus on representing defendants with mental health issues. Sara Forlano, a former assistant county attorney for Montgomery County, recently left private practice to start up the new program.

The county also will have a mental health court docket to closely monitor probationers with serious mental illness, according to a press release. The programs were created through a $487,000 grant from the Texas Indigent Defense Commission, and supported by matching funds from the county.

The managed assigned counsel would work with an oversight board, whose members commissioners approved in February.

“The goal of this program is to lower the rate of recidivism,” Judge Cara Wood, of the 284th state District Court, stated in the release. “There is a high rate of recidivism among this population.”

Williamson County saved $3.2 million from 2005-08 through reduced jail bookings and necessary medications in jail, while Bexar County has saved “at least” an estimated $5 million annually through a similar program, Wood previously told commissioners.

“We anticipate the same or similar savings to our county,” she said in February. “And we never want to lose sight that it’s the right thing to do.”

Wood previously said approximately 600 indigent defendants would be served by the program.
The cost to house a mentally ill person in jail is about $55,000 per year, while the cost for a typical inmate is about $20,000 a year, she said.

Uncaging America requires 'a thousand smaller sanities'

At The New Yorker, Adam Gopnik this week has a remarkable article, "The Caging of America," which Grits recommends as a must read. If nothing else, it prompted me to purchase a copy of the late Bill Stuntz's book, The Collapse of American Criminal Justice, which arrived yesterday by post. Here's Gopnik's description of Stuntz's thesis:

William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong
warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life.

You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.

Read all of Gopnik's piece, but I wanted to point out a few other notable items from the story. First, he articulates ably the central conundrum of modern mass-incarceration in America: States that incarcerated their populace at lower rates generally saw even larger crime declines than high-incarceration states like Texas. New York, where crime declines doubled the national average, is the iconic example:

One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” [criminologist Franklin] Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison.

The secret to New York's super-high crime reduction during a time of de-incarceration, writes Gopnik, stemmed from "small acts of social engineering" as opposed to focusing on arrests and convictions. According to this view, New York City's experience undermined the "supply side" theory of criminal justice that "The only way to stop crime was to lock up all the potential criminals." Writes Gopnik:

In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.

Further, observes Gopnik:

Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime.

Grits would add the rise of the internet and video gaming to that list of non-law enforcement factors. (Anything that takes up lots of young men's time in benign activities will IMO reduce crime.) Gopnik notes that "Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either."

There's much more in the lengthy article; these were just tidbits. But it's a fascinating piece exploring some of the most thoughtful, contemporary literature in print on the subject. I'll close with Gopnik's expression of an incrementalist philosophy that in many ways mirrors this blog's approach to criminal-justice reform since Grits launched in 2004:

Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities.

TX conviction overturned because of failure to challenge junk sciene in child death case

Via PBS Frontline and ProPublica, a conviction for the death of a child was overturned this week by the Texas Court of Criminal Appeals because the defendant's attorney failed to challenge bogus medical evidence presented in the penalty phase of the case that the infant had been sexually assaulted:

The Texas Court of Criminal Appeals [on Wednesday] set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence. 

UPDATE: The Potter County DA says he will re-prosecute the case.

"Old Behind Bars"

From a Human Rights Watch press release:

Aging men and women are the most rapidly growing group in US prisons, and prison officials are hard-pressed to provide them appropriate housing and medical care, Human Rights Watch said in a report released today. Because of their higher rates of illness and impairments, older prisoners incur medical costs that are three to nine times as high as those for younger prisoners.

The 104-page report, “Old Behind Bars: The Aging Prison Population in the United States,” includes new data Human Rights Watch developed from a variety of federal and state sources that document dramatic increases in the number of older US prisoners.

Human Rights Watch found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.

“Prisons were never designed to be geriatric facilities,” said Jamie Fellner, senior adviser to the US Program at Human Rights Watch and author of the report. “Yet US corrections officials now operate old age homes behind bars.”

Long sentences mean that many current prisoners will not leave prison until they become extremely old, if at all. Human Rights Watch found that almost 1 in 10 state prisoners (9.6 percent) is serving a life sentence. An additional 11.2 percent have sentences longer than 20 years.

A Texas-based fact-bite from the report: "In Texas, although elderly inmates represent only 5.4 percent of the inmate population, they account for more than 25 percent of hospitalization costs. The healthcare cost per day in fiscal year 2005 for an elderly offender was $26, compared to $7 per day for the average offender.[180] In fiscal year 2010, the state paid $4,853 per elderly offender for healthcare compared to $795 for inmates under 55.[181]"

Judge: State mental hospitals must take incompetent inmates within 21 days

Big news for mentally ill defendants in Texas declared incompetent to stand trial, not to mention the state agency that is supposed to provide "competency restoration" services, which presently has a months-long waiting list. After a court ruling this week, such long delays have been deemed unconstitutional and state mental hospitals have been ordered to begin taking inmates within 21 days after they've been declared incompetent. Reports Andrea Ball at the Austin Statesman ("Judge: Mentally incompetent inmates being kept in jail too long," Jan. 26):

Texas routinely violates the constitutional rights of mentally incompetent prisoners by forcing them to stay in jail for up to six months before moving them to psychiatric hospitals, a Travis County judge ruled this week.

State District Judge Orlinda Naranjo ruled that the Department of State Health Services must start moving "forensic commitments" — people accused of crimes who have been ruled incompetent to stand trial because of mental illness — to state psychiatric hospitals within 21 days of receiving a judge's order. Over the past two years , the average prisoner spent six months in jail waiting for a hospital bed, the ruling states.

"Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time violates the incompetent detainees' due process rights as guaranteed by the Texas Constitution," Naranjo wrote.

A final order that would specifically lay out how the health department should proceed has not been issued, said Tom Kelley , spokesman for the attorney general's office. That agency has not decided whether it will appeal the case. Right now, there is no timetable for when the changes might be instituted.

 I contacted the attorney in the case from the group Disability Rights Texas, Beth Mitchell, who forwarded a copy of Judge Naranjo's ruling (uploaded here on Google Documents).

The lawsuit is aimed at the Commissioner of the Department of State Health Services, and while everyone thinks it'd be a good idea to reduce waiting times, the decision raises as many questions as it answers. The state cut state hospital funding and other mental health services this year, so seeking more resources in the near term will be like squeezing blood from a stone. Meanwhile, the average waiting list for beds in 2011 was about 300 people, wrote Judge Naranjo, with about 800 beds designated for "forensic" use.

How will DSHS comply with this ruling or will they balk and appeal? If they comply, will they contract for beds, and if so where, and with what money? Will they shift more beds to forensic purposes, and if so what impact will that have on other severely mentally ill folks with civil commitments (69% of state hospital patients, says the ruling)? Will the Legislative Budget Board authorize extra interim expenditures - as they did for the $5 million per month extra being spent on TDCJ healthcare - or will they let the system limp along, noncompliant, until the 2013 session? And what remedy might Judge Naranjo be able to muster to compel them to act sooner? ¿Quien sabe?

This is a welcome ruling, but it doesn't manufacture extra hospital beds out of thin air. Perhaps, though, it will set in motion a process that forces the Legislature to focus on the question much more seriously, and immediately, than they have in the past.

23% of Texas prison spending outside of TDCJ's budget

According to a new report (pdf) by the Vera Institute, "Texas taxpayers pay an average 23 percent more for state prisons than the state’s annual corrections budget reflects," reports Mike Ward at the Austin Statesman: "The new report by the Vera Institute of Justice, a New York-based research organization that tracks criminal justice trends, calculates the state’s total costs for its adult corrections and prison programs at $3.3 billion — almost $783 million higher than the $2.5 billion annual budget for the Texas Department of Criminal Justice." Wrote Ward:

While Texas’ costs were 23.7 percent higher with the associated additional costs, other states ranged from 1 percent higher (Arizona) to 34 percent (Connecticut). Texas was one of six states — Connecticut, Illinois, Missouri, New York and Pennsylvania — where between 20 and 34 percent of the corrections budgets were outside the prisons system budget.

When all costs are considered, the annual average taxpayer cost in these states was $31,166 per convict, according to the study. In Texas, the cost is $21,390 a year per convict.

See the full report, The Price of Prisons: What Incarceration Costs Taxpayers, here.

Factors outside of TDCJ's budget included employee benefits and taxes, underfunded pension benefits and retiree health contributions, retirement costs, judgments and claims, and statewide administrative costs. I wonder what the folks at the Legislative Budget Board would have to say about Vera's calculations, and whether they need to update their Uniform Cost Report (pdf) on corrections as a result?

SCOTUS expands scope of Fourth Amendment in divided 9-0 ruling

At the US Supreme Court case this week, the opinion in US v. Jones on GPS tracking of private vehicles was a fascinating piece of jurisprudence. Ostensibly a 9-0 decision, the only thing all nine justices agreed on was the bottom line that "the decision of the Court of Appeals must be affirmed," and none of them for precisely the reasons on which the lower court based its decision!

To make matters even more confusing, as Tom Goldstein pointed out at SCOTUSBlog, most of the mainstream media misinterpreted the opinion to say a warrant is required to use GPS tracking on a personal vehicle. But the ruling does not address the warrant requirement, only whether the GPS tracking constituted a "search."

What's the distinction? The Fourth Amendment only bans "unreasonable" searches without a warrant, but the courts have carved out wide swaths of legal territory where warrantless searches are routinely allowed. Wrote Goldstein, "The government probably conducts fifty times as many warrantless searches a day as warrant-based searches.  The government can sometimes conduct warrantless searches on less than probable cause, as when a police officer pats down someone on the street or TSA puts carry-on luggage through an x-ray machine." I'd also add consent searches at traffic stops and searches incident to arrest as examples of warrantless searches. They're far more common than search warrants, and there's no guarantee this ruling will require a warrant in every instance GPS is used by federal agents, particularly when it's used for a relatively brief period of time.

In an earlier post, Goldstein discussed the breakdown among justices as insightfully as I've seen on this case:

I think that the correct way to understand the case is to read it as having two separate majority opinions.  This odd alignment occurs because Justice Sotomayor agrees with both theories: she agrees with the majority “at a minimum” (Sotomayor op. at 1) and also seemingly agrees with the concurrence’s “incisive” conclusions (id. at 3).  Justice Sotomayor does not formally join the Alito opinion, but her sympathy for its finding of a Fourth Amendment “search” in GPS monitoring is fairly obvious, as she expresses a broader view of privacy than any other member of the Court.

Here is the upshot.  Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view.  Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

Votes on Fourth Amendment questions tend to defy partisan makeup. In Jones, basically court conservatives and Sotomayor sided with Scalia for the majority opinion expanding the Fourth Amendment's scope, while Alito teamed up with those considered the "liberal" wing to denounce the expansion and critique Scalia's judicial activism.

Seldom do 9-0 rulings reveal such sharp, underlying disagreement. But that's not the biggest story coming out of the case, which surely marks one of the most important moments in Fourth Amendment jurisprudence in the last 50 years. As Orin Kerr pointed out at the Volokh Conspiracy, Scalia's majority opinion articulated a new test for what constitutes a search, reaching back to historic court precedents based on property rights as opposed to modern jurisprudence based on a "reasonable expectation of privacy," first articulated in the Katz decision in 1967. That case, which dealt with an eavesdropping device planted in a phone booth (ask your parents or watch an episode of Dr. Who if you don't know what that is), found that “the Fourth Amendment protects people, not places” abandoning the "trespass" model.

Scalia's opinion, though, demands that a defendant's "Fourth Amendment rights do not rise or fall with the Katz formulation" and makes the claim that "Katz did not narrow the Fourth Amendment’s scope." That's a matter of opinion and I surely disagree with it. I think Katz significantly narrowed the Fourth Amendment's scope by placing the focus almost solely on "reasonableness," and that this opinion reinforcing other aspects - in particular, the enumerated, protected places and items - represents a welcome corrective, broadening the Fourth Amendment's scope instead of narrowing it for the first time in decades.

Regardless, according to Scalia's most recent pronouncement, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." So going forward, the court has effectively added a new definition of what is a search while keeping the old one intact, expanding the scope of the Fourth Amendment in some as-yet-to-be-defined way.

Though I happen to agree with Scalia's policy choice in this case, it's pretty clear he's the one adding to Fourth Amendment jurisprudence, expanding the definition of a search beyond its Katz-based limits. Justice Alito called the majority opinion "unwise," declaring that "It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial." For Alito, as the court had expressly declared in its Kyollo ruling, the Katz opinion “decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property,” which is certainly how this non-lawyer always understood it. While IMO Alito's concurrence accurately reflects the trajectory of Fourth Amendment stare decisis, Scalia's back-to-basics approach revitalizes aspects of the Fourth Amendment that the Katz approach brushed past too breezily in the name of reasonableness.

Justice Sonia Sotomayor received a great deal of attention for her concurrence, in which she expressed the fear that “GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may 'alter the relationship between citizen and government in a way that is inimical to democratic society.'” (I'm glad somebody said it!)

Even "more fundamentally," wrote Sotomayor, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Hear, hear! That indeed is the great dark cloud looming over Americans' privacy frontier. Too bad the court's second-most junior justice couldn't get any of her colleagues to sign onto the sentiment that the court should address the question.

Just to mention it, for us here in Texas this ruling only applies to federal agents, as we already have a requirement that law-enforcement get a court order before placing a "mobile tracking device" on your car.

MORE: From Lori Andrews at The Crime Report. Here's a related editorial from the Houston Chronicle.

Red-light cameras in Houston and the price of democracy

Some in the Houston media are giving the mayor and city council heat for a proposed settlement with its red-light camera contractor (ATS) - delayed for two weeks at the Wednesday city council meeting - that may eventually cause taxpayers to bail out the contract, which was supposed to be paid solely with red-light ticket fines. But under the circumstances, the settlement seems like a reasonable, if not an inevitable result.

Here's the extenuating circumstance: A citizens group gathered by gathered signatures to put the issue on the ballot, and a majority of Houstonians voted against red-light cameras. Later, a federal judge said the plebiscite couldn't override the city's contract with the red-light vendor, but the majority of city councilmembers, including the mayor, decided to succumb to the will of the voters. So the city council first made an unpopular decision, was rebuffed at the polls by their constituents, and now faces expenses associated with undoing a hastily implemented contract, which turns out to have just been a bad idea that's caused them nothing but grief.

Casting another fly in the ointment, brothers Michael and Randy Kubosh, who launched and funded the referendum drive against the cameras, got the 5th Circuit Court of Appeals on Tuesday, the day before the city was to consider the settlement agreement, to make them a party to the suit in order to challenge the judge's ruling that the plebiscite was illegal. That prompted the city attorney to recommend against the settlement with ATS unless the Kuboshes dropped out of the suit. The council delayed the decision for two weeks to sort things out.

What a mess. Politically, the Kuboshes have won the red-light camera fight, with even camera proponents like the mayor now toeing the no-more-cameras line. Legally though, their fight has morphed from one over taking down red-light cameras to a different, unrelated battle over the limits of initiative and referenda, and the new focus could disrupt their original political objective. I'm not sure quite how I feel about that. Part of me wishes they'd have declared victory and moved on.

From Grits perspective, given the city's contractual obligations and federal court rulings in the case, the settlement looked like a good deal. Kuff points out that, with some $3 million in the bank, "the up front payment and most of the first year’s payment after that are covered. The city – presumably, an agent on their behalf – would take over collection duties from ATS. We’ll see how that goes." So if the taxpayers are on the hook, it won't be for at least another couple of years, and maybe not then depending on collection rates.

How much might taxpayers eventually have to pay? The total owed is $4.8 million, but a local TV station reported the city had $2.3 million in the bank while the Mayor's office told Kuff they had $3 million in that account. So taxpayers could be on the hook for $1.8 to $2.5 million judging from that range of estimates. Mistakes can be costly, in politics and life. OTOH, in the long run Houston drivers will save a LOT more than $2.5 million in fines from having the cameras taken down, and they pay taxes, too.

(BTW, Kuff mentions another upcoming Texas plebiscite on red light cameras: "Finally, in red light camera news elsewhere, League City residents will vote on whether or not to extend that city’s contract with a red light camera company. The contract runs through 2014, and a proposition about it will be 'in the next special municipal election', whenever that is. Red light opponents have a pretty good track record in these elections, and I’m sure they will be gunning for this one as well.")

The red-light camera fad is an example of seeking criminal-justice solutions to engineering problems out of essentially a financial motivation. Lengthening yellow-light times at those intersections by one second would do more than cameras and tickets to reduce accidents, but that wouldn't have generated the new revenue stream. (They can and should still lengthen yellow-light times at problem intersections, in fact.) Perhaps it was a costly lesson, but if the settlement gets done, Houston can chalk up that $1.8 to $2.5 million to the price of democracy.

Upward budget pressure at crime labs

A pair of stories from out of state underscore two sources of upward budget pressure at crime labs that Grits suspects apply equally here in the Lone Star State. Crime labs are expensive, labor-intensive operations, and Texas and other states have traditionally underinvested in them, leading to significant backlogs. Meanwhile, a combination of court rulings and technological innovation will ratchet up demand considerably for these services in the near term.

First, re: court rulings. In Melendez-Diaz and subsequent cases, Justice Anontin Scalia has led a US Supreme Court majority in reinvigorating the Confrontation Clause, requiring crime lab experts to testify in person (in order to be cross-examined) instead of simply sending written reports which cannot be interrogated. The inevitable result is crime lab scientists going to court more often, and in Arkansas, 42% of crime lab scientists' courtroom trips last year did not result in giving testimony, reported AP (Jan. 22):

The Arkansas Democrat-Gazette reported Sunday (http://bit.ly/wP2ZHQ ) that lab analysts such as DNA specialists, drug chemists and medical examiners traveled to county courthouses around the state but ended up not testifying 238 out of 573 times last year. That means 42 percent of the lab experts' court trips didn't yield any testimony in 2011.

I've never seen similar data regarding Texas crime labs, but I'll bet the Arkansas situation is not unique. After Melendez-Diaz (2009), it's almost inevitable crime lab scientists would go to court more often without testifying. Certainly the SCOTUS justices were aware of that fact during their discussion at oral argument. There's a pricetag associated with that judgment, however, and this story out of Arkansas is the first time I've seen somebody put a dollar figure to it.

Grits was also interested to see a story out of Connecticut, where the overwhelmed state crime lab established new guidelines discouraging agencies from submitting evidence:

Police agencies across Connecticut are now being asked for the first time to limit their submissions to the state lab under new guidelines that took effect Jan. 1. The state also plans to hire 25 to 35 new lab workers to reduce the backlog to a manageable level, but it may take two to three years before the new employees are trained and ready to work, said Michael Lawlor, criminal justice aide to Gov. Dannel P. Malloy.

The number of DNA cases that have not been started at the forensics lab in Meriden skyrocketed from less than 250 in mid-2006 to nearly 3,900 last year, according to the state Department of Emergency Services and Public Protection, which oversees the lab. During the same time period, the number of lab workers has decreased about 10 percent to 90. The wait for DNA testing in many cases is more than three years.

If no extra staff were added, officials say the lab's DNA unit by April 2013 would only be able to perform testing in felony cases that are reaching the statute of limitations for prosecution. The lab wouldn't be able to test samples in hundreds of other criminal cases.

The lab is also dealing with backlogs in other types of evidence testing, including nearly 1,700 firearms cases and 1,400 latent fingerprinting cases.

The state lab's backlog follows a national trend. DNA casework backlogs at labs across the country increased from about 38,000 in 2005 to nearly 112,000 in 2009, according to the latest available U.S. Justice Department statistics. In addition to an increase of samples from crime scenes, most states have passed laws requiring DNA testing of criminals, adding to many labs' backlogs.

The advent of "touch DNA" and the expansion of DNA evidence to nonviolent offenses like burglary mean the near-term growth potential for DNA examiners may be limited only by how much state and local governments are willing to pay for them.  Add to that forensic scientists spending more time in the courtroom away from the lab, and crime labs are being asked to do much more with fewer scientists available to perform the tasks.

This problem isn't going away: State budget writers will be grousing about crime labs as money pits for many years before lab capacity finally catches up to demand.

Blind administration would improve accuracy of forensics

The Economist argues that even the most powerful forensic tools, including DNA can be tainted by "cognitive bias" when scientists are given too much "contextual information" about the case, citing a study where DNA analysts unfamiliar with case details were less likely to find a match than the original examiners who knew the case details. The magazine grants that:

one example does not prove the existence of a systematic problem. But it does point to a sloppy approach to science. According to Norah Rudin, a forensic-DNA consultant in Mountain View, California, forensic scientists are beginning to accept that cognitive bias exists, but there is still a lot of resistance to the idea, because examiners take the criticism personally and feel they are being accused of doing bad science. According to Dr Rudin, the attitude that cognitive bias can somehow be willed away, by education, training or good intentions, is still pervasive.

Medical researchers, by contrast, take great care to make drug trials “blind”, so that neither the patient nor the administering doctor knows who is receiving the drug being tested, and who is getting a control drug or placebo. When someone’s freedom—and, in an American context, possibly his life, as well—is at stake, it surely behooves forensic-science laboratories to take precautions that are equally strong.

Blind administration turned out to be a key reform for eyewitness identification, and your correspondent has long believed the same approach is justified in other forensic disciplines. Why does a DNA analyst need to know case details before deciding if two samples match? Not only is it irrelevant to the analysis, it may actually turn out to reduce its accuracy.

Liberty County lowers jail pop nearly 2/3, private contractor wants to up rates, county may de-privatize

Remarkably, Liberty County has reduced its local jail population by nearly 2/3 since early 2011 simply by issuing more personal bonds to low-risk defendants, reported the Cleveland Advocate ("County's jail population down, but companies now asking for more money per inmate," Jan. 22):

Liberty County is already seeing a reduction in costs for the operation of the county jail thanks to a plan initiated by 253rd District Court Judge Chap B. Cain and supported by County Judge Craig McNair, County Court-at-Law Judge Tommy Chambers and 75th District Court Judge Mark Morefield to reduce the inmate population. Morefield discussed the plan as guest speaker of the Cleveland Rotary Club luncheon on Jan. 18

According to Morefield, at the time the plan was put into place, the county was spending 11 percent of its total budget, around $3.85 million, to fund the county jail. Much of the burden had to do with the fact that non-violent offenders were not being released because they were unable to pay their bond.

“It is not about overcrowding. It’s about the expense to the county and ultimately the taxpayers of Liberty County,” said Morefield. “The plan is designed to release low-risk inmates. Give them a PR (personal recognizance) bond and get them out of jail and off the fee list. With PR bonds, there hasn’t always been oversight, but our plan alleviates some of the concern.”

In early 2011, there were 372 male and female inmates in the county jail. For each inmate, the county was required to pay $46.50 to the company contracted to manage the jail, Community Education Centers (CEC).

That equated to around $17,000 per day in costs to the county for housing the inmates.

When the judges met in April prior to the plan being implemented, the inmate population had dropped, but the cost to the county was still around $10,000 per day. According to Morefield, the recent inmate population has dropped to 132.

“That is still not sufficient. We ought to be able to get it down to 100-110,” he said.

While saving county taxpayers is the objective of the plan, the judges are not totally focused on money matters.

“We would never sacrifice the safety of our citizens for economy,” said Morefield.

Liberty County's approach works for one simple reason: The local judiciary led the effort and that's who actually makes the decision regarding whether defendants must put up bail. Any objections by local bail bond companies were apparently overruled and the DA, judging from comments in the article, didn't fight the change, so this is a model that may not be replicable elsewhere.

There's a kicker, though: The private prison company which manages the facility, alarmed by declining inmate numbers (and the state's closure of a small intermediate sanctions faciliity housed at the jail), wants to raise the county's per-inmate rate, wiping out savings to the taxpayer from all their hard work. Reported the Advocate's Vanessa Brasher:

The judges’ plan, having saved the taxpayers millions, may have inadvertently forced the county to no longer outsource the jail’s operation.

The county is currently accepting bids for the jail contract. Morefield said companies submitting bids are apparently aware of the judges’ inmate reduction plan. All of the bids received so far are set on a sliding fee scale.

“One bid said that if the inmate population goes below 200, the cost per inmate goes from $63 to $68 per day. If we work really hard to decrease the inmate population, the cost will go up to $70 per day,” said Morefield. “They are taking all the incentive out of it.”

Morefield feels the county is capable of managing its own jail.

“The prevailing thought any time the government undertakes a project is that the government will pay 1.5 times for something. Government is wasteful. I challenge that thinking that government cannot compete with the private sector. I advocate that you talk to county commissioners about the county taking over the jail,” said Morefield. “I am not saying it will be economically feasible but the taxpayers deserve answers to this issue.”

Most Texas counties can run their jails at a far lower cost per day than the estimates being bandied about in this story, so de-privatization may indeed make a great deal of economic sense, particularly now that jail population numbers are down an amazing 64.5% in just a single year's time!

Grits mentioned the other day how remarkable and noteworthy it is that crime rates (including homicides) declined dramatically in Houston during a period when the county jail population decreased 31%. And in Bexar County, the commissioners court is interrogating why a large reduction (1,000+) in inmate numbers hasn't yielded more savings for the county.

Liberty County's relative achievement (though on a much smaller scale) is even more impressive and worthy of emulation. Their example shows that when judges take the lead, excess incarceration at county jails can be reduced pretty darn rapidly, with little identifiable detriment to public safety. The main barrier to reducing jail costs is a lack of leadership and political courage among judges, who have the authority to act and are uniquely positioned to build consensus among other elected officials (particularly DAs, who can easily throw monkey wrenches into the gears of they have no incentive to work together, and commissioners courts, who must pay for incarceration alternatives).

Finally, it's a welcome development that counties are beginning to see jails as an expense that could be cut instead of a sacred budget cow they daren't touch. I don't think Harris, Bexar, and Liberty will be the last counties we hear of in the next 3-5 years reducing jail populations to save costs.

Audits of asset forfeiture funds yield questions, felony conviction of Brooks/Jim Wells DA

Joe Frank Garza, the former DA of Brooks and Jim Wells counties, which slice through rural South Texas along US 281, gave his first interview since his conviction last year for misappropriation of public funds to Mark Collette of the Corpus Christi Caller-Times ("As new questions emerge, former District Attorney Garza speaks about forfeiture funds," Jan. 22). Here's a notable excerpt from the article:

From 2002 to 2008, [Garza] used the funds for himself and to supplement employee salaries without approval. An audit showed more than $4.2 million went to salary supplements for Garza and at least three of his employees, and trips to casinos. Three secretaries received more than $1 million during a five-year period — or more than $66,000 per secretary per year, effectively doubling or tripling their pay. Garza said the secretaries deserved it.

As part of the plea deal, Garza was sentenced to 10 years in prison, which was suspended for 10 years probation. Garza spent six months in jail as a condition of probation and was forced to surrender his law license. He also was ordered to pay $2.16 million in restitution and a $10,000 fine.

State law requires custodians of forfeiture funds to submit detailed budgets outlining how they intend to use the money. Garza said he didn't understand the budget requirement because the statute was "so confusing."
In 2001 the statute contained the same requirement it has today for district attorneys: "The budget must be detailed and clearly list and define the categories of expenditures."

Garza said the law, which allows district attorneys to used seized funds for official purposes, lets the district attorney determine what qualifies as an official purpose. He claimed he asked state officials in 2000 whether there were limitations on how he could use the money and was told, "You can spend it for whatever, so long as you don't put it in your wallet."

He said he received advice from a county auditor and county judge who told him he didn't need to submit budgets for forfeiture fund expenditures.

The state's prosecutors didn't buy it.

"He knew better," Assistant Attorney General Shane Attaway said when Garza took the plea deal. "This is pure greed. This isn't an accident."

Garza complained that the audit of his funds and subsequent prosecution were politically motivated. 

Meanwhile, Collette reported yesterday in a separate item ("Former Brooks County Sheriff under investigation for use of seized cash"), the former Brooks County Sheriff has his own asset-forfeiture related woes, reports Collette:

An auditor found more than $500,000 in questionable purchases through former Brooks County Sheriff Balde Lozano's criminal asset forfeiture funds, prompting a local prosecutor to refer the matter to the Texas Attorney General's office.

According to the audit, some of the purchases were channeled through funds controlled by Joe Frank Garza, the former 79th District Attorney who pleaded guilty in March to a felony charge for paying himself and his employees more than $2 million from his office's forfeiture fund without county commissioners' approval.

Lozano, 59, who is now a Falfurrias police officer, was sheriff from 1997 through 2009. He did not accept requests for an interview but provided a written statement saying the audit was politically motivated.

"I have been out of politics for the last three years," Lozano wrote. "It seems like the present sheriff's administration continues to try to drag me back into it."

Indeed, Lozano shouldn't spend too much time wondering why he's being dragged back into it! Reports Collette, "State law requires sheriffs, district attorneys and other officials who oversee seizure funds to submit forms yearly to the state comptroller and Texas attorney general detailing the money and seized property flowing through the funds and listing how much money was spent in various categories, such as salaries, equipment and travel expenses. There is no record of Lozano submitting the paperwork during his 12 years in office." Whoops.

Further, wrote Collette, "The county has no record of any budgets submitted by Lozano. The audit reports that when a county auditor raised objections about the sheriff's spending, Lozano and Garza replied with statements such as 'the sheriff can do whatever he wants with his money.'" Big ticket item to be accounted for include $88K in credit card purchases which appear mostly unrelated to law enforcement. Also, "About $394,000 was spent to buy 18 vehicles, apparently without competitive purchasing procedures. The auditor had difficulty tracking what happened to the vehicles and whether the county received money when they were sold." (Here's a copy of the October 2011 audit (pdf) of the Sheriff's asset forfeiture fund.)

So the former DA in Brooks and Jim Wells counties pled guilty to a first-degree felony for overpaying himself and his staff with asset-forfeiture money, but thinks he did nothing wrong. Meanwhile, the ex-Brooks County Sheriff treated asset forfeiture money as his own private slush fund with little accountability. One wonders what similar audits would find in other jurisdictions? Are these examples outliers or would similar self dealing and/or misappropriations be discovered elsewhere, if anyone bothered to look?

MORE: From Texas Watchdog.

Inmates and media: The Prison Show, snail mail and appreciating the Apostle Paul

A coupla interesting stories discussing inmates' relationship to media caught Grits' attention. First, NPR this week had a feature on The Prison Show, emphasizing how the long-running Houston-based radio show focuses on connecting inmates to their families.

"So many people go to prison and those relationships end," [host David] Babb says. "The families will write to them for a while, they'll go visit them for a while and it becomes a burden, it just tends to fades away."

But the show gives prisoners a way to stay connected and the call-ins they get from children are proof of that. One daughter left this message for her incarcerated dad: "Well, school's going great. I don't have any classes with my friends but I'm seeing that as the bright side to make new friends ... And I'm just loving school right now. So I hope you can wish me luck when it comes to all the tests I have to take this year. OK, love you, Dad. See you soon, I hope."

At The Baptist Standard, there's an interesting article suggesting inmates understand the ancients' relationship to the written word more innately and viscerally than those in the free world because of their relationship to snail mail.

Stephen Presley, who teaches a biblical interpretation class at a maximum-security prison near Houston, said the inmates' familiarity with letter writing has given them a unique perspective on the epistles that comprise a large portion of the New Testament.

"I think that (for) those of us who live in a world that's dominated by e-mail and controlled by other forms of technology, sometimes it's hard for us to understand the genre of letter writing—the genre of the epistles," Presley said.

"But for those who live in this world (behind bars), it was so easy for them to comprehend and to almost identify with the early church in the way they would have felt receiving these letters from Paul and how they would have treated the letter, perhaps, even in ways we don't, in terms of reading it from start to finish, reading it closely and observing every word."

Change v. Tradition, lawyers v. journalists, and other perennial conflicts

Lots of tidbits this morning competing for Grits attention:

Travis DA race: Change v. Tradition
At the Austin Chronicle, Michael King has a pair of interviews with challenger Charlie Baird and incumbent Travis County District Attorney Rosemary Lehmberg in what shapes up to be a dandy of a Democratic primary race between two political and legal veterans during which, judging from these interviews, many seldom-discussed aspects of the justice system will be vetted.

APD crime lab whistleblower interviewed
In Austin, KVUE-TV has an interview with the whistleblower alleging violations at the APD crime lab.

Dumped
Video: Littlefield, Texas: 'Meet town bankrupted by private prisons."

Dumped?
Liberty County is considering un-privatizing their jail and letting the Sheriff run it. The facility is currently run by Community Education Centers.

It's the checkpoints, stupid
No surprise to Grits readers, but the Texas Tribune reports that most contraband crossing into Texas from Mexico comes in at the checkpoints, not through the empty regions in between, which is one of many reasons this blog always opposed a border wall as misdirected enforcement.

Senate Criminal Justice interim charges
Interim charges (pdf) for the Texas Senate Criminal Justice Committee include studies of money laundering, the Crime Victims Compensation fund, the bail bond industry, solitary confinement (ad seg) at TDCJ, prescription drug abuse, and school discipline.

Senate Homeland Security charges
Interim charges (pdf) for the Texas Senate Transportation and Homeland Security Committee of interest to Grits' topic areas include the effect of drug trafficking and cartel violence on the economy, 911 staffing, limitations of using national guard for border security, the anticipated impact of the Panama Canal expansion,  oversized vehicle enforcement (as it relates to preventing road damage), and pursuing toll scofflaws.

Okie prosecutors seek probation profits
In Oklahoma, prosecutors have begun taking on probation supervision duties for low-risk offenders, the Wall Street Journal reports, with an eye toward a new revenue source from offender fees. But critics wonder exactly how much supervising is going on.

Lawyers v. Journalists, innocence edition
Unless you've been on the inside of such fights - and Grits has occasionally found himself on both sides, over the years, as well as in the middle of such feuds - it's difficult to grasp the good-faith conflicts that arise thanks to the differing roles of journalists and lawyers. This story from the ABA Journal about innocence project work at Northwestern University captures some of those conflicts better than most depictions.

Upcoming criminal justice events in Austin

These upcoming events in Austin may interest some Grits readers:

• UT Law School conference to address developments in civil rights litigation since 9/11, February 3, 2012 (see the conference website)
• Legislative Budget Board (LBB) staff discuss adult correctional population projections, February 3, 2012, 1:30-3 pm.
• LBB staff discuss adult recidivism data, March 9, 2012, 1:30-3 pm.
• Mental health and substance abuse seminar, Texas Court of Criminal Appeals, Criminal Justice Integrity Unit, March 22-23

What grants might be cut if counties don't update crime data?

Earlier this week Grits published a list of Texas counties at risk of losing eligibility for federal Justice Assistance Grants if they don't meet minimum standards for recording judicial data, and at the time I asked the Governor's office for a list of those grants: Here are the grant awards for 2012 so far; they aren't in every county, but a lot of the bigger ones and all those along the border. Grant awards include funds for quite a few drug, mental health and other specialty courts, equipment purchases, border security grants, overtime pay, and an array of other specialized projects. Counties may become ineligible for these grant funds, the Governor's Criminal Justice Division has announced, if they don't update records to include at least 90% of criminal case dispositions from '06-'10. The CJD  has said they're willing to assist counties with grant funds to upgrade local data systems.

Florida to close 7 prisons, why couldn't Texas?

Florida recently announced they will close seven prisons and four work camps under a gubernatorial plan from Republican Rick Scott that's being tarred by Democrats and prison-guard unions as soft on crime and evidence of an "extreme Tea Party agenda." The state was able to close the units because of declining prisoner populations: “No inmates will be released early as a result of this decision, and there will remain adequate bed space to accommodate projected prison admissions, which have steadily decreased since FY 2007-08,” the corrections department said in a statement.

Regular readers know Grits believes Texas could have realized similar savings in the 82nd Texas legislature last year (we have more prisons and prisoners, by a longshot, than the Sunshine State) with just a few key policy tweaks, but the Lege instead cut funding, mostly for prisoner healthcare, without doing anything to reduce the inmate population. Within months, the state was paying $5 million per month over budget in an interim contract for healthcare costs with UTMB. When 2013 comes, if they want to cut TDCJ's budget they'll have to reduce the number of people incarcerated there.

Last week the Texas Public Policy Foundation held a panel at their annual policy conference (thanks to Marc Levin and David Guenther for the invite) featuring outgoing House Corrections Chairman Jerry Madden, chief Harris-County judicial cat-herder Caprice Cosper, House Rep. Marisa Marquez, and Adam Gelb from the Pew Center on the States.

Gelb's presentation focused on five "myths" about crime and punishment, but one of them spoke directly to the fallacy that "crime rates drive incarceration rates." In fact, he said, policy changes are the primary driver where states have reduced incarceration. That's how Texas avoided new prison building throughout most of the last decade, and it's the only way to reduce costs now.

Much was made at the event, and rightly so, of Texas 2007 investments in probation and diversion programs which have been oft-credited with keeping TDCJ's population 17,000 prisoners lower than had been projected five years ago. But in the "what have you done for me lately?" category, protecting those investments was the main accomplishment claimed for 2011.

In the Q&A section, I got to ask the panel why the Lege hadn't enacted more policy reforms to reduce inmate numbers and prison costs, "doubling down" on their earlier success to actually empty out and close prisons, as is happening in Florida. Madden replied that recidivism studies take three years and in 2011 they didn't have enough data to judge outcomes from the 2007 investments. While it's clear they worked overall, he said, the 2007 budget investments financed an array of different programs, and the Lege needed to wait on data to see which worked and which didn't to decide how to proceed.

That's a fair point, but in some ways the answer dodges the central conundrum facing the state on corrections spending. After all, the Lege slashed healthcare spending at TDCJ utterly without forethought or regard for reality, while failing to pass legislation that reduced the number of prisoners (particularly the sickest and/or elderly prisoners who cost the most money) commensurate with the smaller budget. Now, for this biennium, TDCJ will be coming in nearly nine-figures over budget, if the $5 million per month premium to UTMB continues, with 2013's budget expected to be even tighter. Last year they cut prisoner food, bled prisoner commissary accounts, reduced programming and educational opportunities, and likely cut all they reasonably can without addressing the elephant in the room: How can they change policies to reduce incarceration costs?

For the most part in 2011, that didn't happen, and there are few signs it's being seriously considered now (though one of the Senate Criminal Justice Committee's interim charges asks them to study diversion programs in part with an eye toward "reductions in correctional populations"). Tight budgets, though, have a way of forcing radical decisions on legislators that no amount of external advocacy could ever persuade them to make. At a minimum, it'd be helpful for TDCJ to reduce inmate numbers enough to end some of its contract arrangements with private-prison companies instead of paying for each marginal, extra inmate on a per diem basis.

As Chairman Madden pointed out on the TPPF panel, in the near future TDCJ's Sunset process is the most likely vehicle for enacting such fundamental reforms. Grits hopes the Sunset reviewers evaluate the agency and make recommendations with an eye toward revamping TDCJ to correspond to these new budget realities, strengthening probation and parole while seeking creatively ways to emulate Flordia, New York, Michigan, and other states which have reduced incarceration and shut down prisons. That's the recipe for budget stability in Texas corrections - a lot of insiders already know it - and really the question becomes more one of political courage than budget sense. In that context, tight budgets could force legislators to do the right thing for the wrong reasons, letting them scale back mass incarceration without paying the same kind of political price one might pay, say, from closing neighborhood schools, by pointing out that's the tradeoff. Caprice Cosper echoed that sentiment, saying the budget crunch was an opportunity to think creatively.

Time will tell. Texans like to boast, I commented to the panel, and Madden was right to boast about the 2007 budget reforms - they were a great accomplishment. I'm glad this session they were mostly protected. But it's time to acknowledge that their effects have pretty much played out and more will need to be done in 2013 to actually cut the budget, much less avoid new prison building (or expanding use of contract beds) by the end of the decade.