'We need rational approach to incarceration'

An op ed in the Amarillo Globe News today by restorative justice advocates with the same title as this post argues for a smarter approach to Texas corrections spending. The column concludes:

recidivism costs Texas citizens many millions of dollars annually, plus untold loss and suffering.

Unfortunately, the state’s budget woes are leading to major cuts in the very programs that help reduce recidivism, suffering and cost. Budget reductions in the Texas Department of Criminal Justice have been largely focused on community supervision, parole and programming funds. Even the department’s ability to process new volunteers for work in prison programs has been impaired.

It appears the goose that could lay the golden egg is being killed by short-sighted legislative policy.

There is a better way. Some people need to be locked up to protect society — and many for a very long time. But the tendency of tough-on-crime advocates to lock up more and more people for longer and longer terms for smaller and smaller offenses, while de-emphasizing the programs aiming to rehabilitate inmates and prevent their return to prison, is misguided at best.

As responsible citizens, we all need to demand that our elected representatives take a more rational approach to incarcerating offenders, while retaining or expanding in-prison programming as a humane, recidivism reducing, cost cutting — and presumably tax saving — measure.

Required budget cuts should focus on creating a policy that aims to provide community supervision of offenders who are not a threat to society, incarcerate those who are and rehabilitate them all. And each of us should do our part by participating in or supporting nonprofit programs, such as Bridges To Life, that help restore offenders to the life of a productive, tax-paying citizen.

The fallacy of prohibition: Gambling edition

An Austin Statesman story today by Patrick George quotes police decrying "light penalties" for business operating eight-liner gambling machines, calling for harsher punishments and stricter city ordinances aiming to drive them further underground. However, an earlier Statesman story (Sept. 8) pointed out how Duval County in South Texas received 9% of its annual budget from fees paid by eight-liner operations. Wrote Eric Dexheimer:

It could be the local government success story of the year: Confronted with a struggling economy and stagnant tax revenues, entrepreneurial officials in a county perhaps best known for its rich history of graft and political corruption uncover a lucrative new source of revenue.

But there's a small catch.

"Of course the machines are illegal, as I understand it," said Jo Ann Ehmann, the part-time bookkeeper for the tiny city of Gregory.

Just northeast of Corpus Christi, Gregory — population 2,000 — has collected about $800,000 in the 18 months since it started enforcing its $1,000-per-machine game room ordinance. The city's annual budget is about $1 million.

Together, a half-dozen or so rural counties and municipalities have earned millions of dollars from recently enacted fees levied on the gaming machines.

Grits considers bans on these devices counterproductive, ensuring they'll be operated mainly by a criminal element instead of in a regulated environment. The traditional mafia in the northeast was vanquished not so much by successful law enforcement efforts to lock up mobsters as by the creation of legal (often state operated) lotteries that eliminated illegal numbers running. Similarly, legalizing eight-liners - which are essentially slot machines - would reduce crime, generate revenue and allow their regulation and taxation, as so many small towns have discovered.

Harsher penalties won't eliminate illegal gambling - they never have, after all - but merely drive the activity further into the shadows of society. They also eliminate substantial revenue streams from government, relegating the activity, and income, to the black market. Regrettably, such observations were absent in today's Statesman article, which followed the tired, traditional format of articulating a problem then voicing police calls for harsher punishment as seemingly the sole solution. The issue, though, is more complicated than that. "Light penalties" aren't the real problem: Prohibition is.

The New Jim Crow: Michelle Alexander to speak in Houston

Michelle Alexander, author of The New Jim Crow: Mass incarceration in the age of color-blindness, will appear next week at a speaking engagement in H-Town sponsored by Progressive Forum Houston and the ACLU of Texas. I've mentioned before that Grits doesn't necessarily buy into the book's thesis, but there's little doubt it has brought significant attention to issues of mass incarceration, focusing on criticisms from the opposite end of the political spectrum from say, the Right on Crime crowd.

One of the reasons for optimism that the nation could be on the brink of ending, or at least reevaluating, the era of mass incarceration in which we find ourselves is that vastly differing criticisms of the system have arisen from across the political spectrum, from traditional conservatives to unabashed liberals to Ron Paul libertarians. Thinking people have announced their dislike for overincarceration from virtually every spot on the political spectrum, with most of the public support tending to come from folks with a financial stake in its continuance - police unions, prosecutors, prison officials, private prison companies, and the array of contractors which have sprung up to service prisons and law enforcement. Further, the influence of the latter group has been constrained by harsh budget realities in which funding for mass incarceration must compete with more popular education and health care priorities. Today, even politicians who built their careers promoting mass incarceration are beginning to moderate their lock-em-up proclivities.

I may not agree with Alexander's overall thesis about Jim Crow - I think that argument ignores the fact that black folks are disproportionately victims of crime, and also trivializes the vast differences between the liberty and opportunities afforded black people today compared to the era of American apartheid - but many of her arguments in the book are spot on, and she's made a valuable contribution to the national conversation on the subject. If you're in Houston (regrettably, I can't be), you may want to attend the event and hear what she has to say.

MORE (10/2): Lisa Falkenberg of the Hosuton Chronicle has a preview of this event.

Policing the mentally ill: Crisis intervention teams

Recently, Austin PD implemented a new policy related to responding to mentally ill suspects which the Austin Statesman described thusly:

In cases where a suspect is known to be mentally or emotionally disturbed, a minimum of four officers along with a sergeant will be sent to the scene, and at least one of them must be specially trained in handling such issues. [Chief Art] Acevedo said this change was spurred by several recent incidents involving violence by homeless suspects and other people with mental health issues. “We will greatly decrease the potential for use of deadly force,” Acevedo said.

So I was interested to see a couple of stories in the Houston Chronicle related to "crisis intervention teams" in Harris County and specialized training there for law enforcement handling calls related to the mentally ill:

• Sheriff's crisis team 'protects both sides of the badge' (Sept. 27)
• Patti Hart: How could police shooting of amputee happen here (Sept. 25)

The first bulleted story in particular gives more background on the cutting edge of best practices regarding police responses to mentally ill suspects:

Crisis intervention teams, tagged to respond to calls involving mentally disturbed subjects, reflect a new wave of law enforcement thinking pioneered by the Memphis, Tenn., Police Department in the 1980s. Such efforts have received renewed attention after a Houston police officer last week fatally shot a mentally ill double-amputee who threatened his partner with a pen. HPD's crisis intervention team, in place since 2008, was not at the scene

Sheriff Adrian Garcia launched the county's program last October as an alternative to jailing the mentally ill, an effort he said not only eases suffering but saves taxpayers money. About a fourth of the jail's current 8,900 prisoners require psychotropic medication.

"Each time we take a low-risk, nonviolent, mentally ill individual to treatment rather than jail, we increase the chances they will not re-offend and decrease the costs to our jail and the court system," Garcia said.

Since its inception, the county program has diverted 168 mentally ill subjects, individuals who previously would have been charged with crimes, to treatment facilities.

Henry's team, which has a cooperative agreement with the Houston Police Department's crisis team, has answered 1,581 calls since last October. In the most recent quarter, 728 of the individuals encountered suffered from post traumatic stress disorder, 257 from depression, 227 from bipolar disorder and 213 from schizophrenia.

"Our goal," Henry said, "is to protect both sides of the badge. We are trained and skilled to protect ourselves and trained and skilled to protect the 'consumer.' We don't rush into action. We understand what they are going through."

In addition to the 16 hours required of all police officers, deputies selected for the program receive 40 hours of special training through the HPD Academy, a program regarded by experts as one of the nation's best.

The deputies, accompanied by workers from Mental Health Mental Retardation of Harris County, arrive at crisis scenes in minimally marked squad cars after being dispatched by department operators or summoned by the first responding officers.

Austin's policy change is an improvement, but other jurisdictions are doing more to confront these difficult questions and so could APD.

Roundup: Debating pot prohibition

The Houston Chronicle's Baker Institute Blog has recently published a series of pro and con posts on marijuana legalization that may interest Grits readers:

• Marijuana: A case against legalization
• Why legalizing marijuana is a bad idea
• Marijuana won’t be legalized anytime soon
• Regulations work: Lessons from California’s experience with medical marijuana
• Legalization of marijuana: When, not if
• In a contest with alcohol and tobacco, marijuana wins
• Marijuana: A case for legalization

From Jacob Sullum at Reason, "The Marijuana Rebellion: State ballot initiatives aimed at legalizing pot pose new challenge to prohibition."

In Colorado, where a marijuana legalization initiative is on the ballot, the Denver Post recently published this pair of pro and con op eds: "Amendment 64: Should pot be legal in Colorado? No; Colorado can't put our kids at risk" and "Amendment 64: Should pot be legal in Colorado? Yes; End senseless marijuana prohibition"

And in Washington State, where another legalization initiative is on the ballot, the Seattle Times published an editorial titled, "Approve Initiative 502 — It’s time to legalize, regulate and tax marijuana."

Golden State voters appear poised to scale back 'three-strikes' law

I was fascinated to see recent news coverage indicating that Golden State voters appear likely to approve a ballot initiative reversing an earlier, influential referendum creating California's "three strikes" law. The most recent polling on Proposition 36 shows 81% of voters in favor of the measure versus just 13% opposed. An article published yesterday said that:

If adopted, the law would be retroactive, meaning someone like 25-to-lifer Leandro Andrade could petition the court to resentence him for the 17-year-old crime of filching $150 worth of videotapes in Southern California. Andrade is in the unique position of being a poster child for each side of the Prop. 36 debate.

The California District Attorneys Association—which, ironically, opposed three strikes back in 1994—released a position paper this month citing Andrade as someone with “a horrific criminal history” who might be sprung early if the ballot measure passes. A U.S. military veteran who has struggled with drug addiction, Andrade’s case went all the way to the Supreme Court in 2003; the high court upheld a 50-year sentence for Andrade, who had multiple prior convictions for residential burglary and drug trafficking before stealing a total of nine videotapes from two different Kmart stores in San Bernardino County in 1995. ...

The state prison system is currently home to nearly 8,900 three-strikers. The CDAA claims 4,300 of these inmates could be eligible for resentencing hearings under the proposed law, but says nothing of the 4,000-plus black inmates that make up a whopping 46 percent of the three-strike prison population.

Though the California media seems focused on racial disparities in incarceration rates, I suspect this apparent reversal of public opinion stems in great part from the federal court mandate to reduce overcrowding at California state prisons. Since they're now obligated to either spend billions more on prisons or become more judicious about who is incarcerated, it's unsurprising voters might want to release the guy who stole $150 worth of video tapes to hold those convicted of more serious offenses for longer periods, which was how the law was originally pitched. "Michael Romano, who directs a Stanford University project that represents three-strikes offenders in their sentencing appeals, says California’s version of the law has strayed from its original purpose. 'If you go back to the original arguments used to pass the law,' says Romano, ' 'they said ‘we want to see rapists and murderers and molesters behind bars'.’ It turns out that the majority of three strikers have been sentenced for nonviolent crimes.'"

California's original "three strikes" law launched a wave of similar statutes across the country, so one wonders, if the state scales back the law, will its historic "bellwether" status result in other states similarly reconsidering their own three-strikes statues?

Adjusting juvenile law in light of SCOTUS rulings, scientific advancements

An item from the Juvenile Justice Information Exchange titled "Juvenile offenders in limbo under outdated state laws" describes a situation which, though our state is not mentioned, impacts 17 year olds in Texas sentenced after 2005 for capital murder, as well as those with pending capital murder charges. The story opens, "More than two years after U.S. Supreme Court decisions started throwing out mandatory death and life sentences for minors, judges in Washington, Illinois and dozens of other states still lack guidance on what to do with juveniles past and present convicted of murder and some other serious felonies."

Texas had already eliminated both the death penalty and life without parole for juveniles by the time Miller v. Alabama (pdf) was decided earlier this year, but in Texas offenders are charged as adults once they're 17 years old. The US Supreme Court, though, has now forbade both death penalty and life without parole sentences for defendants under 18 years old. So for someone charged with a capital offense at 17, there are presently no legal punishments available for capital murder under Texas law. In practice that shouldn't be a terrific dilemma for prosecutors. Seventeen-year-old defendants can still be charged and sentenced under regular murder statutes, and since both death sentences and LWOP are no longer options, there really isn't a substantive difference in the likely result. But Grits still expects the Legislature to take up the question next year to close the gap created in capital sentencing by the different definitions of "juvenile" under Texas and federal law.

Of course, that also raises a larger question the Legislature probably won't address next year, at least not comprehensively: Should 17 year olds be tried as adults in the first place? They have none of the rights of grown ups - can't vote, can't drink, etc. - but are held responsible as adults when they break Texas law. The issue is made more poignant by recent advances in neuroscience that have demonstrated how, as the ABA Journal put it not long ago, that:

While an individual’s cognitive abilities (thinking, reasoning) reach adult levels around the age of 16, studies show that psychosocial capabilities (impulse control, judgment, future orientation and resistance to peer pressure) continue to develop well into early adulthood.

Which answers the question so many parents have undoubtedly asked their teenage sons and daughters: How could somebody so smart do something so dumb?

Laurence Steinberg, a Temple University psychology professor who has been studying adolescent brain and behavioral development for 35 years, likens the teenage brain to a car with a powerful gas pedal and weak brakes. While the gas pedal responsible for things like emotional arousal and susceptibility to peer pressure is fully developed, the brakes that permit long-term thinking and resistance to peer pressure need work.

Steinberg says the latest research in developmental psychology confirms and strengthens the conclusion that juveniles as a group differ from adults in the salient ways the court identified in Roper [the SCOTUS case eliminating the death penalty for juveniles]. And emerging research in the field of neuroscience, not even mentioned in Roper, is helping to explain this biologically.

Such research shows, for instance, that adolescents exhibit more neural activity than adults or children in areas of the brain that promote risky and reward-based behavior. It also shows that the brain continues to mature well beyond adolescence in areas responsible for controlling thoughts, actions and emotions.

At the Texas Tribune festival last weekend, state Rep. Paul Workman (R-Austin), who sits on the Corrections Committee, suggested the Texas Department of Criminal Justice should designate separate units for 17-23 year olds - facilities he referred to as a "middle campuses" - both for their own protection and as an acknowledgement of this growing body of scientific research on brain development. That suggestion makes even more sense after the Lege directed in 2007 that 19-20 year olds sentenced as juveniles be moved from youth prisons to TDCJ.  Though the "middle campus" prospect wasn't discussed in much detail, Workman indicated such facilities could offer special programming unavailable in the regular adult system. I thought it was a fascinating and meritorious idea regarding a subject that's only beginning to gain traction as scientific developments begin to trickle down to influence court rulings and policy debates.

MORE: See a fairly lengthy discussion string from the Texas District and County Attorneys Association on the implications of Miller v. Alabama for Texas.

Forensic commission investigative panel DPS controlled substace testing SNAFU meets today

Grits can't attend today's Texas Forensic Science Commission investigative panel meeting (pdf) in The Woodlands, but I sure hope some Houston-area reporters will go the meeting, which begins at 9:30 this morning. They'll be evaluating the DPS case out of Houston, discussed earlier on Grits here and here, where a lab worker was serendipitously discovered to have used samples from a different case to validate a positive finding for Alprazolam (the generic name for Xanax). At an earlier FSC meeting, it was revealed that the discrepancy was discovered by accident and would not have been revealed through existing management and audit systems, and the investigative panel is where the episode will be most comprehensively vetted.

Some FSC meetings on high profile cases (like Todd Willingham) have been comprehensively covered while there have been others where your correspondent was the only media person there. But the DPS lab mess is a big deal, potentially affecting nearly 5,000 cases. It'd be a shame if nobody's there to report the details.

Warrantless blood draws: Does refusing permission to search create exigent circumstances justifying a search?

The US Supreme Court has granted cert on a case styled Missouri v. McNeely to determine "Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream."

The petition (pdf) to the court asserted that, "It is objectively reasonable for a law enforcement officer to obtain a warrantless blood test from a drunk driver because of the imminent destruction of evidence." But the "imminent destruction of evidence" in this instance is not somebody flushing drugs down a toilet or shredding critical files, but merely the fact that "alcohol is naturally eliminated from the human body."

To me, "destruction" of evidence implies an alleged offender actively doing something to impede investigators, but if the court overturns the Missouri Supreme Court's decision, "destruction" of evidence could mean, simply, doing nothing except refusing permission for an invasive search.

My own sense is that, given the Supreme Court's systematic gutting of the Fourth Amendment in recent decades, SCOTUS will probably say warrantless blood draws are constitutional. But it's disquieting to think that simply refusing permission to search would be deemed an "exigent circumstance" that allows police to search anyway. Something's not quite right about that circular construction.

Studies bring positive news on recidivism, corrections spending

A pair of recent public policy reports offer hopeful news. First, the Austin Statesman brings word of a Council of State Governments report (pdf)out today on trends toward lower recidivism, including in Texas. According to the study, "Texas saw a drop of 22 percent between [inmates released in] 2000 and 2007." (Keep in mind recidivism data takes three years to compile, so the data from those released in 2007 can't be calculated until after 2010.)

Factors contributing to Texas' recidivism decline, said the report, included that:

• In 2007, the Texas Legislature significantly increased funding to expand the capacity of existing treatment programs and alternatives to incarceration, including transitional housing for parolees, in-prison treatment for substance abuse, and outpatient substance abuse treatment for people under probation supervision.

• Policymakers supported the implementation of a system of graduated sanctions for parolees, allowing for the diversion of technical violators of parole to an Intermediate Sanction Facility rather than returning them to prison.

• Over a longer period, recidivism rates in Texas have improved from 31.2 percent for 2000 releases to 24.3 percent for 2007 releases—a decline of 22 percent.

Here are Texas recidivism data for cohorts released in the following years:

• 2000: 31.2%
• 2001: 28.2%
• 2002: 28.5%
• 2003: 28.2%
• 2004: 28.0%
• 2005: 27.2%
• 2006: 26.0%
• 2007: 24.3%

One factor contributing to the final year's decline is that Texas does not count parolees sent to Intermediate Sanctions Facilities in its recidivism data, and those facilities were expanded in 2007. But the overall decline of 22% since the turn of the century is still quite remarkable and goes beyond what the ISF populations would account for.

Meanwhile, via Doug Berman I discovered a report from the Vera Institute of Justice titled, "Realigning Justice Resources:  A Review of Population and Spending Shifts in Prison and Community Corrections" (pdf). See an accompanying fact sheet (pdf) providing an overview of their findings. Since their analyses ends in 2010, this report's Texas data don't account for recent prison population declines, and our figures would look more positive compared to other states if recent data had been included. Still, compared to astronomical growth in Texas corrections spending over the last three decades, the news here is generally positive. And even more pronounced reductions in prison populations and spending in other states demonstrate that, with a few far-sighted policy changes, Texas has room for even more dramatic savings in the corrections arena, if the Legislature can muster the gumption to pursue them.

State by state database of collateral consequences

A reader informs me of a new national inventory of collateral consequences resulting from criminal convictions, from employment to government benefits to education to civic participation, with state-by state specifics. The website was created by the American Bar Association and the National Institute of Justice. Here's an interesting excerpt from the Project Description articulating why the project was undertaken:

Persons convicted of crime are subject to a wide variety of legal and regulatory sanctions and restrictions in addition to the sentence imposed by the court. These so-called “collateral consequences” of conviction have been promulgated with little coordination in disparate sections of state and federal codes, which makes it difficult for anyone to identify all of the penalties and disabilities that are triggered by conviction of a particular offense. While collateral consequences have been a familiar feature of the American justice system since colonial times, they have become more important and more problematic in the past 20 years for three reasons: they are more numerous and more severe, they affect more people, and they are harder to avoid or mitigate. As a result, millions of Americans are consigned to a kind of legal limbo because at one point in their past they committed a crime.

Some collateral consequences serve an important and legitimate public safety or regulatory function, such as keeping firearms out of the hands of violent offenders, protecting children or the elderly from persons with a history of abuse, or barring people convicted of fraud from positions of public trust. Others are directly related to the particular crime, such as registration requirements for sex offenders, driver’s license restrictions for those convicted of serious traffic offenses, or debarment of those convicted of procurement fraud. But many others apply across the board to people convicted of crimes, without regard to any relationship between crime and consequence, and frequently without consideration of how long ago the crime occurred or what the individual has managed to accomplish since. Many consist of nothing more than a direction to conduct a criminal background check, and an unspoken warning that it is safest to reject anyone with a record. When convicted persons are limited in their ability to support themselves and to participate in the political process, this has both economic and public safety implications. When society is discouraged from recognizing and rewarding genuine rehabilitation, this has moral and social implications as well. When particular restrictions have no apparent regulatory rationale, and cannot be avoided or mitigated, they function as additional punishment, though without due process protections.

Of particular relevance in the present context is the fact that collateral consequences are scattered throughout the codebooks and frequently unknown even to those responsible for their administration and enforcement. The Supreme Court has recognized that when a person considering a guilty plea is unaware of severe consequences that will inexorably follow, this raises questions of fairness and implicates the constitutional right to effective assistance of counsel. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010). When the obligations and restrictions imposed as a result of conviction are unknown to those individuals directly affected by them, it invites noncompliance with the law. When legislatures and executive officials are unaware of the full range of penalties and disabilities imposed by law on convicted individuals, it is unlikely that they will take the opportunity to reconsider them, in whole or in part.

As an example of how vast the number of collateral consequences are in practice, go to Texas and search on "Employment" and "Any Misdemeanor," and 116 different state and federal statutory and regulatory restrictions are listed.

5th Circuit upholds Open Meetings Act

Good news on a sleeper issue that has worried your correspondent for some time: A three judge panel at the federal 5th Circuit Court of Appeals upheld the Texas Open Meetings Act, which local politicians had challenged on First Amendment grounds, claiming they should have the right to deliberate about public business in secret. Given that Texas' Open Records Act - since changed to the Public Information Act - has been gutted over the years by the courts, the Legislature, and various Attorneys General, the Open Meetings Act remains the most meaningful legacy of transparency reforms enacted in the 1970s following the Sharpstown bank scandal. A victory by the plaintiffs and their allies at the Texas Municipal League would have been a calamity for public accountability. Plaintiffs vowed to continue to appeal all the way to the Supreme Court, but most observers I've talked to believed that if they were to prevail, it would happen at the 5th Circuit. Here's a link to the opinion (pdf).

Austin PD requires supervisor approval for consent searches, alters policies on mental health, use of force

Austin PD Chief Art Acevedo announced several significant policy changes today, reported the Austin Statesman's The Blotter blog:

—Officers must now seek approval from their supervisors before they ask to search a person’s home or vehicle. “We believe this will improve and enhance accountability,” Acevedo said. Consent to search a person’s property must be gained in written and videotaped form. The new policy notes that “Officers should be aware that overuse of the consent search can negatively impact the department’s relationship with our community and only request a consent search when they have an articulable reason why they believe” a search will result in evidence.

—In cases where a suspect is known to be mentally or emotionally disturbed, a minimum of four officers along with a sergeant will be sent to the scene, and at least one of them must be specially trained in handling such issues. Acevedo said this change was spurred by several recent incidents involving violence by homeless suspects and other people with mental health issues. “We will greatly decrease the potential for use of deadly force,” Acevedo said.

—Officers are now barred from placing themselves in the path of a moving vehicle. “What this policy says is, ‘Don’t you create a problem,’” Acevedo said, referring to his officers. Deadly force against the driver of a car is authorized when officers believe the vehicle is being used as a weapon against the officer or other people.

When I saw the headline, I'd hoped the changes would include upgrading the policy on arresting citizens filming police in the line of duty, but certainly these are all significant and positive developments.

The consent search issue in particular has dogged the city for years and it's good to see it publicly addressed. The department had at one point required written consent for searches at traffic stops. However, that policy was at some point rescinded, then reinstated this summer after the Police Monitor revealed that one in eight traffic stops involving black folks resulted in searches in 2011 compared with one in 28 among white drivers. Requiring supervisors' approval will provide much more accountability.

Noted the Statesman, "Acevedo announced the changes along with Austin NAACP president Nelson Linder and Texas Civil Rights Project Executive Director Jim Harrington. The two previously prompted the U.S. Department of Justice to investigate the police department."

Profiteering off murder and misery: Who does more damage, the MSM or murderabilia peddlers?

Clyde Barrow's Colt pistol, via the Waco Tribune Herald

Since Texas passed a law a decade or so ago banning so-called "murderabilia," or selling mementos from famous killers, I found it interesting to notice via the Waco Tribune Herald that several items related to famed bank robbers Bonnie and Clyde are up for auction this weekend. The Texas law has never been effectively enforced, in part because of the rise of out-of-state Internet auction sites, and it only bans killers themselves profiting from such items, so it wouldn't affect Bonnie and Clyde memorabilia, in any event. But the auction underlines how faint is the difference between "murderabilia" and "history." Some of the items on sale were formerly displayed at the Texas Ranger Museum in Waco. Texas' statute on murderabilia, as described by the Houston Chronicle, "calls for the confiscation of any profits that are inflated because of a criminal's notoriety." To me, though, it is the mainstream media more than anyone else who chiefly profits from criminals' "notoriety": Sensationalist crime coverage is their bread and butter, exemplified by the local TV news mantra, "If it bleeds, it leads."

Former federal District Judge Nancy Gertner, who retired last year to teach at Harvard Law School, recently authored an opinion piece titled "The Media's Reporting on Justice is Criminal" which critiqued the MSM for "beating the drum" in individual cases with formulaic, slanted coverage that misunderstands and distorts the criminal justice process. The reason the media do that, of course, is that it draws more eyeballs, for the same reason people slow down on the freeway to gawk at a gruesome accident. And since advertisers follow eyeballs, and advertising revenue is dwindling, in the 21st century the incentive to sensationalize crime for profit has reached heretofore unseen heights. (Witness Nancy Grace.) That's the main reason why the public thinks crime is rising even though crime rates, particularly for violent crimes, are at modern lows.

One person's murderabilia is another person's historical artifact. But neither murderers nor collectors would be able to profit from "murderabilia" if the MSM hadn't beaten them to the punch in profiteering off crime and misery.

Plea bargaining and the innocent defendant

Has the rise of overcriminalization and the ascendancy of plea bargaining heightened the risk that innocent defendants may plea guilty? Those questions were raised in a must-read article published in the Wall Street Journal this week ("Federal guilty pleas soar as plea bargains trump trials," Sept. 23) which explored the likelihood that significant numbers of innocent people are enticed to plea guilty to avoid harsh federal sentencing guidelines. From the story:

The triumph of plea bargaining in the federal system, which has gathered pace in recent years, is nearly complete. Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion. That is up from 84% in 1990. During that period, the number of federal defendants nearly doubled amid a crackdown on crimes ranging from drug trafficking to fraud, while the number going to trial fell by nearly two-thirds.

This relentless growth in plea bargaining has sparked a backlash among lawyers, legal scholars and judges—evidenced by recent federal court decisions, including two from the Supreme Court. Weighing on many critics is the possibility illustrated by the Kassab case: that the innocent could feel pressured into pleading guilty.

One troubling factor is that, when cases are plea bargained, prosecutors aren't forced to actually prove their cases or turn over so-called Brady material. "Among the legal protections given up by a defendant when he pleads is the right to receive evidence from the prosecution that supports a claim of innocence. That means a person might plead guilty to a crime not knowing prosecutors are holding exculpatory evidence."

The Journal attributed the trend to mandatory sentencing regimes in the federal system (and their state-level counterparts) which have given prosecutors extraordinary leverage in negotiating pleas:

Behind the dominance of the plea bargain is the rapid growth in the number of federal criminal laws and the stiffening of sentences by Congress and the U.S. Sentencing Commission, a board created in the 1980s. After scandals at Enron and other companies in the early 2000s, for example, Congress increased the potential sentence for certain types of fraud to 20 years from five years.

Federal guidelines not only toughened punishments but also formalized a system to reward defendants who plead guilty by reducing sentences if they accept responsibility or cooperate with prosecutors, among other things. As part of plea deals, federal prosecutors often drop additional charges that could add years, or decades, to a sentence. Going to trial brings none of those benefits for the accused.

The article cited concerns expressed in:

two related decisions this year by the Supreme Court, which said defendants hadn't been adequately represented by their attorneys during the plea-bargaining process. Plea bargains "have become so central to the administration of the criminal justice system" that defendants should receive the kind of protections associated with going to trial, Justice Anthony Kennedy wrote.

Justice Antonin Scalia dissented from the decisions but wrote that the system encourages a prosecutor to charge an individual with so many criminal counts that it "effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense."

A sidebar to the story (not available to non-subscribers) cited research by a pair of academics, Lucian Dervan and Vanessa Edkins, to be published next year in an article titled "The Innocent Defendant's Dilemma."  They studied the behavior of students falsely accused of cheating on tests, finding that "more than half of the innocent participants were willing to falsely admit guilt in return for a benefit" of reduced consequences. Their analysis of the implications of that finding deserves exploration in greater detail.

'Prison Break: Budget Crises Drive Reform, But Private Jails Press On'

The title of this post is the headline of an extensive American Bar Association Journal article which features Marc Levin of the Texas Public Policy Foundation and other national opinion leaders on corrections topics which will be familiar to Grits readers. The article closes on this (perhaps overly) optimistic note:

Few think the lock-’em-up approach is sustainable for much longer. The incarceration reform movement seems inexorable, despite concerns that if the economy continues to stall, U.S. legal systems will find more reasons and ways to put people behind bars—or that if flush times return, we will be able to afford ever-growing prison populations.

But no matter how much the economy might recover, battles will only increase over funding for education, crumbling infrastructure, various entitlement programs, outlays for medical care and more on a list of social priorities likely to eclipse the need to lock up those with whom we might be angry, but who otherwise don’t pose much threat.

“These things are enormously expensive and people care about them a great deal,” says Clear, the Rutgers criminology dean. “It used to be that in surveys of what people are concerned about, crime would be No. 1, 2 or 3. Now it’s not in the top 10, and hasn’t been for 15 years.

“I believe this change will have some legs,” Clear says. He’s been nudging it for three decades and is more hopeful than some colleagues. “History will show that the mass incarceration era has ended.”

Time for Austin PD to enact policy on filming police after 3rd arrest of local activist

Austin police can't seem to figure out when the public can or can't film them, but seem to have decided for sure that Antonio Buehler can't. The West Point graduate and Iraq war vet was arrested for the third time Friday night along with another activist from the Peaceful Streets project for filming police (the formal charge was "interfering with public duty"). Austin PD told the American Statesman that Buehler "was asked to move to an area where other people were, but he kept stepping back into where the officer didn’t want him," but witnesses (see here and here) say he complied with police requests to back away from the scene. A press release from the group described the encounter thusly:

The arrest took place at 1219 W. 6th St. near Pressler after Peaceful Streets Project members pulled their car over to witness a DWI stop. They were approximately 30' away from the detention when none-other-than Officer Oborski (the arresting officer of Buehler last New Year's Eve  ...) shined a flashlight in Buehler's face, yelling, "Mr. Buehler, back up!"

Buehler asked, "how far?" but Oborski didn't respond. Buehler asked a second time, "how far?" while already backing up, yet still Oborski wouldn't respond. By this time, Buehler and Dickerson were 40' away.

Then Officer Johnson stepped in and repeated the "back up" command, to which Buehler said "how far?" Buehler again moved back another 10' but Johnson told him to "move over there or leave." He motioned to the other side of the police vehicle, putting him CLOSER to the detention - an illogical command. Buehler continued to protest this illogical issue, while backing up further, saying that he wasn't interfering and was complying with orders to move AWAY from the scene.

Johnson said again, "move over there (closer to the detention) or leave" at which point both PSPers were nearly 60' away, and Buehler responded, "fine, I'm leaving," as he proceeded to walk away. It was this point that Johnson and Officer Holmes announced they would be arrested.

The activists have since been released but their video cameras were not returned to them along with the rest of their personal property. Short of some "accidental" erasure, though, eventually the videos will come out and we'll discover whose version of events is closer to reality: APD's press statement or the witnesses in the videos linked above, whose accounts jibe with the press release that Buehler complied with commands to back away.

Ironically, just three days prior Austin PD had backed off the notion of requiring citizens shooting video of police to stay 50-60 feet away from them. (See prior Grits coverage.) That's not too surprising, since the whole idea was surpassing stupid to begin with, but the activists' arrest almost immediately transformed APD's backtracking into a pyrrhic victory. Reported the Austin Statesman ("Police: No distance restrictions on where police can film officers," Sept. 18):

Austin police officials now say they won't ask members of the public who film officers to stay 50 to 60 feet away from them as indicated in an August news conference after the arrest of a local activist.

Assistant Police Chief Sean Mannix said he believes it would be "arbitrary" to assign a certain distance between officers and people who might be filming them, as well as difficult to enforce.

"I don't think there's a practical way of doing that," Mannix said. "There is no magic number of feet. The officer is going to make a determination of how much of a buffer zone they're going to need to keep themselves safe, and they'll communicate that to folks at the time."

Mannix's statements represent a change in direction from comments police officials made last month, after Austin activist Antonio Buehler was charged with interference with public duties when police said his actions compromised an arrest they were making downtown.

Judging from this latest episode, APD's decision not to implement a ridiculous "stay 60 feet away" policy is no victory for the copwatchers, since in essence it leaves discretion entirely to each individual cop, who in Buehler's case seems to inexplicably usually be Officer Oborski (though this time Oborski had the sense to get others to do his dirty work).

It's clearly time for Austin PD to enact a formal policy regarding citizen filming of police. They could do far worse than to model it on the one enacted in by the Metropolitan Police Department in Washington D.C. this summer. According to that remarkably reasonable policy (pdf), "If a person is photographing or recording police activity from a position that impedes or interferes with the safety of members [read: officers] or their ability to perform their duties, a member may direct the person to move to a position that will not interfere." However, "A person’s recording of members’ activity from a safe distance, and absent any attendant action that obstructs the activity or threatens the safety of the member(s), does not constitute interference," which likely would have protected Mr. Buehler in this latest incident. Neither the police statement to the press nor witness accounts claimed Buehler "interfere[d] with the safety of [police] or their ability to perform their duties." APD only claimed (contrary to the witness accounts) that Buehler went "where the officer didn’t want him." In D.C., that wouldn't be enough to arrest him unless more was going on than filming.

Further, the D.C. policy sensibly insists that "The Watch Commander, CID, or other official with supervisory authority over the member, must be present at the scene before a member takes any significant action involving a person’s use of a recording device. This includes warrantless search or seizure of a camera or recording device, or an arrest." Austin police should implement the same restriction, and eliminate field officers' discretion to make such arrests unless exigent circumstances exist (which are also carefully defined in the D.C. policy).

Given the proliferation of cameras in cell phones, this issue will continue to come up, with or without the Peaceful Streets Project. It's time for Austin PD to tell the public under what circumstances they will arrest people for filming of their activities. Just declaring officers can arrest someone for being "where the officer didn’t want him" affords too much discretion, inviting abuse and public distrust.

RELATED: Police v. cameras in public spaces: A recurring conflict.

MORE: A commenter supplied a link to an unedited video of the incident. Starting at about the 5:30 mark, you can see Buehler's arrest in the background (he's wearing white pants) and the cop walking him directly toward the DWI stop. I lost count because the video doesn't show his legs once they get close to the woman taking the field sobriety test, but Buehler was perhaps 25- 30 steps away from the DWI stop. How in heaven's name is that interfering with public duties?

AND MORE: See additional commentary from Pixiq: The Photo World in Focus, which includes a link to this training bulletin (pdf) advising Austin police on when they may arrest citizens filming police. Below the jump, see a Peaceful Streets Project press release issued today (see related Statesman coverage) quoting a statement the National Press Photographers Association that criticizes APD's policy as too broad.

Liveblogging Texas Tribune Festival Law and Order track: Is more spending really the only solution to everything?

Texas Tribune reporters yesterday liveblogged their Law and Order track at their all-day "festival." See their blow by blow account here. Go to their main page for similar accounts from sessions on other issues.

MORE THOUGHTS: I took quite a few notes myself and may have more to say on some of the topics covered, but one recurring theme throughout the day - especially from the institutional players represented on the panels - was that the Legislature and local government should spend much more money on criminal justice: On forensic science. On prosecutors' offices. On indigent defense. On mental health services. On alternatives to incarceration. On juvenile probation. On state oversight of probation. On reentry services following prison and jail stints. You name it, more spending seemingly was the solution.

That's all well and good, but the problem is - given the fiscal conservative predilections of the incoming Legislature and the budget crisis spawned by the Lege underfunding major budget items during the last one (Medicaid funding, for example, will run out early next year, long before the fiscal year ends) - throwing massive sums at our already sprawling system isn't really a viable long-term strategy.

Very seldom throughout the day were concrete suggestions made that had a remote chance of reducing costs, and then only in passing. The opinion leaders being questioned did not seem to have given much consideration to how to scale back the system to reduce its volume and expense.

One rare exception came in the panel on the coming legislative session. State Rep. Paul Workman, who is on the House Corrections Committee, mentioned he is interested in scaling back "overcriminalization," but offered no specifics. And Sen. Joan Huffman suggested that money can be saved in the out years if the state invests now in community corrections and mental health services. The Trib liveblog paraphrased her stance thusly: "Huffman said she's about punishing those who are bad and treating those who can be treated in a smarter way while at the same time saving some money."

So essentially, even the suggestions for "saving" money were couched as calls for spending more. The only exception among the politicians was Harris County DA Pat Lykos, who pointed out that the county jail population declined after she stopped charging crack paraphernalia cases as state jail felonies unless there was enough of the controlled substance available for the defense to re-test. Of course, her likely successor at that job has said he would reverse the policy.

Responding to an audience question, juvenile justice panelists briefly agreed that money could be saved by reducing police presence at schools (where more than 300,000 Class C tickets are issued by officers each year, it was estimated), but they all immediately dismissed the idea as politically not viable.

Surprisingly, the main person on the stage at yesterday's Law and Order track who suggested big-picture policy changes that would actually reduce corrections spending was, oddly enough, Rusty Hardin. He was brought in mostly to discuss his role as a special prosecutor in the Michael Morton court of inquiry and his representation of Roger Clemens against allegations of lying to Congress about steroids. But toward the end of his one-on-one interview with Trib publisher Evan Smith, Hardin opined that the pendelum had swung far too greatly toward the harsher end of the spectrum. He recounted that 20+ years ago he'd created a political action committee to elect less lenient judges but now felt the system had gone too far in the other direction

Hardin declared unequivocally that today's prison "sentences are too long," and stated flatly, "I don't believe in life without parole." Liveblogged Brandi Grissom:

Life without parole, he says, is an easy out instead of making the hard decision.

“Warehouseing people for all their natural life with no hope is a horrible, horrible thing to do,” he said.

Hardin said shorter sentences give offenders "hope" and prevent them from giving up on their future, offering a greater possibility they'll successfully reintegrate with society on release. He said he's particularly bothered by long sentences for juveniles. And he lamented the rise of pretrial detention as de facto pre-adjudication punishment. In Harris County, he noted, the system has turned the presumption of innocence on its head to where now there's essentially a "presumption of guilt." People are held in jail too long pretrial because courts are clogged, and often the conditions imposed by judges as part of pretrial release are so onerous that the person may as well have been convicted.

Hardin's comments were framed not around fiscal questions but underlying principles of justice. However, more than any of the politicians or policy wonks interviewed before him, in his comments one saw the outlines of a justice system that might actually be cheaper to operate. (Keep in mind state corrections spending grew 274% more than inflation and population growth over the last three decades, with local costs similarly skyrocketing in most jurisdictions.) Reducing sentences reduces cost to prisons. Reducing pretrial detention lowers jail expenditures.

This blog has repeated many times that there are ways to reduce criminal justice costs by reducing volume: Lowering drug penalties by one punishment category, for example. Indexing theft categories to inflation. Reducing long sentence lengths, as Hardin suggests, and allowing inmates to earn their freedom through good behavior. Utilizing medical parole for sick, elderly inmates. Eliminating politicized expenditures with little public safety benefit like fusion centers, border security grants and military-style equipment. Ending local police subsidies to burglar alarm companies by requiring verified response. Hardly any of those questions were even hinted at yesterday outside Hardin's offhand remarks.

There are ways to reduce criminal justice spending while keeping crime rates low, and yes, some of them require state investment in long-neglected priorities like strengthening probation and upgrading mental health services. But judging from yesterday's event, opinion leaders seem as yet unready to grapple with bigger systemic changes to rein in the corrections spending behemoth Texas has created.

Law enforcement coming to grips with new limits on DPS crime lab services

The Amarillo Globe News has more coverage of a sleeper issue that I'm surprised hasn't received more attention: DPS' recent decision to limit certain types of testing at their crime labs to reduce backlog volumes. Reported Aziza Musa ("DPS cuts evidence tests; changes could reduce convictions, DA says," Sept. 22):

The agency plans to implement the measure until labs can return results within 30 days, DPS spokesman Tom Vinger said.

But Farren said he anticipates demand will continue to grow, and forensic scientists won’t be able to keep up.

It’s a trend [Randall County DA James] Farren said he’s seen before.

In the late 1980s and early 1990s, law enforcement agencies submitted all forensic evidence to FBI crime labs, causing backlogs and long delays, he said.

That’s when law enforcement agencies turned to local and state labs.

“And it took a while, but we’ve reached the same place,” he said.

In addition to blood alcohol and controlled substance testing, DPS also has restricted the amount of DNA testing it will perform, the Corpus Christi Caller Times had earlier reported, allowing only "only two DNA tests for each burglary offense and 10 for each homicide."

See earlier Grits coverage of the move, where I suggested that eventually DPS will be forced to shift to a fee for service model instead of providing "free" services to agencies that don't have their own crime labs. For many years the criminal justice system has operated as though money is no object, but that approach was never sustainable in the long term. DPS has overseen a massive recent expansion of crime lab capacity, but it's still insufficient to handle the volume of evidence sent to them. Even if the Lege gave them more money, it's doubtful they'll have resources to keep up with demand for crime lab services at the rates they've been rising.

Harris County hires new interim probation director

In the wake of the resignation of the Harris County adult probation director in the wake of a drug testing scandal, a new interim director has been hired. The Houston Chronicle has a brief profile.

Tattoo You: State faces rising costs from Hep C treatment

The Texas Tribune yesterday had a story on the rising cost of treating Hepatitis C in prison due to changing standards of care surrounding the disease. Reported Brandi Grissom:

Prison health officials estimate that as many as 50,000 of the state’s more than 150,000 inmates could be infected with hepatitis C. The cost to treat Texas inmates with hepatitis C is expected to soar by as much as 380 percent next year, a result of the growing prevalence of the disease among inmates and a more effective, but more expensive, treatment protocol. Legislators, already facing a strained budget, will have to find millions more dollars to pay for this care.

Not all inmates are tested for hepatitis C when they enter the prison system. They are tested if they have other clinical indicators, like HIV or a history of intravenous drug use. In a 2007 report, health providers for the Texas Department of Criminal Justice said they had identified and were managing care for about 20,000 inmates with hepatitis C.

Dr. Stephanie Zepeda, the director of pharmacy services for University of Texas Medical Branch Correctional Managed Care, which oversees treatment of inmates, said she provided medication therapy for about 400 hepatitis C patients per month, at a cost to the state of about $2.8 million per year. Not all patients with the disease receive the medication, and the therapy can last from three months to a year.

The current protocol is composed of two drugs, and its cure rate is about 40 percent, Zepeda said. But new medical guidelines call for the use of a third medication, which can be one of two different drugs. One of them would increase the cost of hepatitis C treatment in prisons to more than $8 million a year, the other to more than $13 million, Zepeda said.

Zepeda said that adding a third drug raised the cure rate to 70 percent. But the drugs are not only expensive, they are also complicated to administer.

“It’s great from a humanistic standpoint,” Zepeda said. “But it’s, practically, a challenge for the correctional system.”

The new drugs must be administered precisely every eight hours. They must be taken with food, and patients risk developing a resistance to the therapy if they miss doses. In prison, where even small diversions from the regimented schedule require additional work for guards, and where inmates frequently move between units, ensuring that the expensive medications are given correctly could be problematic, Zepeda said.

“It just takes a tremendous amount of coordination to do it right and to do it well,” she said.

Perhaps the biggest source of in-prison transmission of Hep C is unsterilized tattooing. For a while, Canada experimented with placing tattoo parlors in prison, with mixed results (it was abandoned out of an ideological shift in government, not because of problems with the program). It turned out some prisoners wouldn't use the program (which obviously wouldn't do gang tats) and more importantly, they discovered most prisoners acquiring Hep C had done so in the free world, either in regular, licensed tattoo parlors, some of which pose a number of underpublicized health risks, or via IV drug use.

In any event, Texas is unlikely to install tattoo parlors in prison anytime soon, and the GOP champion for free-world needle exchange in the Legislature abandoned the idea after the Bexar District Attorney threatened to prosecute those participating in a legislatively approved pilot. So, since the state appears unlikely to embrace preventive tactics anytime soon, the question remains: Will new, more effective Hep C treatments be deemed medically necessary and thus required under prison medical protocols? If so, it's yet another factor boosting costs for prison healthcare, which the Lege last session underfunded in the budget by nine figures. And since Texas policy toward most prisoners on Hep C has been "don't ask, don't treat," if they ever actually began testing everyone for the disease, those costs would go even higher.

Austin police chief wants homeless services out of his backyard

This suggestion is so absurdly misguided and ill-considered that it scarcely merits comment, but Rob Patterson at the Austin Post informs us that:

Police Chief Art Acevedo feels that Austin’s homeless and such organizations as Salvation Army, Caritas and the Austin Resource Center for the Homeless that provide them with shelter and services should get out of downtown and move elsewhere. And gets needlessly sarcastic about their presence in the center city entertainment district in an obviously uninformed statement reported by Fox News 7.

"Let's put Caritas, let's put the ARCH, let's put the Salvation Army right adjacent to this huge district. It has beer readily available and booze readily available it's probably not a good mixture."

He does make a valid point that the homeless distract police from addressing other downtown crimes. But just because he says they should go doesn’t mean everyone should all salute and say, “Yes sir!”

It's one thing to say homeless service organizations should move somewhere else. But its not a serious suggestion until the chief informs us a) where he thinks they should move and b) by what authority he would compel them to do so. Past efforts to provide services elsewhere foundered when they ran up against inevitable NIMBYism. Will Acevedo now lead the charge to beat back NIMBY efforts to thwart relocating such facilities or pander to neighborhood interests who don't want them there? My money's on the latter.

A few years back before Acevedo came to Austin, a national advocacy group ranked Austin one of the "meanest" cities in America toward the homeless, with a spokesman declaring,"Austin basically made the list because there has been sort of a pattern of police harassment, harassing homeless people in the community." Acevedo's most recent comments perpetuate that perception.

Fusion centers' lameness thus far trumps potential civil liberties threats

The Constitution Project last week issued a document titled "Recommendations for Fusion Centers" (pdf) that merits readers attention. For those unfamiliar with them, "fusion centers" are a post 9/11 intelligence sharing concept operated at the state and sometimes local level. Beginning in 2003, federal funding and state-level enthusiasm for homeland security and intelligence sharing spawned "the creation of a network of state and regionally-based fusion centers that share information among law enforcement and some intelligence agencies. Today at least 77 fusion centers are active in the United States." The Constitution Project worried that "fusion centers can also pose serious risks to civil liberties, including rights of free speech, free assembly, freedom of religion, racial and religious equality, privacy, and the right to be free from unnecessary government intrusion," and offered 25 recommendations to improve their functioning. (Go here to listen to an audio recording of a forum held in D.C. accompanying the report's release.)

The report echoes many of the concerns raised by a 2007 report from the ACLU titled, "What's wrong with fusion centers?" (pdf), which was issued at a time when only 40 fusion centers had been established. While the ACLU focused on criticisms of the fusion center concept from a civil liberties perspective, though, the report by the Constitution Project focused more on specific and detailed operational recommendations aimed at cabining information gathered to legitimate law enforcement needs and ensuring it's properly used.

It's a worthy project and I agree with many of their recommendations - particularly the creation of an immutable audit trial for those who access fusion center records, requiring regular audits and purging information that doesn't relate to criminal conduct (particularly often-nebulous "suspicious activity reports" that are received by fusion centers in large volumes), restricting data use to criminal investigations based on, at least, reasonable suspicion, providing redress for identifying and correcting false information maintained by fusion centers, and their cautions against using the data gathered for counterproductive racial and religious profiling or unwarranted political harassment of First-Amendment protected activities.

Some of these issues have arisen in Texas. One example cited was a "February 2009 'Prevention Awareness Bulletin,' circulated by a Texas fusion center, [which] described Muslim lobbying groups as 'providing an environment for terrorist organizations to flourish' and warn[ing] that 'the threats to Texas are significant.' The bulletin called on law enforcement officers to report activities such as Muslim 'hip hop fashion boutiques, hip hop bands, use of online social networks, video sharing networks, chat forums, and blogs.'"

As evidenced by that example (and others in other jurisdictions), the Constitution Project worried that "the definitions of suspicious behavior used by the federal government and police forces are wide-raging and include behavior that may be completely innocuous." They observed that federal statute, "28 CFR Part 23 prohibits state law enforcement agencies that receive federal funding from collecting or maintaining personal information about indivividuals in a criminal intelligence database unless 'there is reasonable suspicion that the individual is involved in criminal conduct and the information is relevant to that criminal conduct or activity'."

That said, I must say I found the analysis a bit tepid, focused more on the micro-issues surrounding fusion centers and in the process offering suggestions that apply not just to fusion centers but to law enforcement intelligence gathering generally. But the report failed to confront what to me is the much larger question confronting policymakers who champion fusion centers: Are they effective? Are they worth the vast amounts being spent on them?

Fusion centers are little more than a law-enforcement fad, and there's little evidence they're providing much bang for the buck.

The report mentioned that between 2004 and 2007 (when far fewer fusion centers were in operation than today),  the Department of Homeland Security "provided $254 million to sate and local governments to support fusion centers. Federal funding accounts for 20 to 30 percent of state fusion center budgets," according to the report. Extrapolating, that means the total amount spent on fusion centers (in local, state and federal dollars) ran somewhere between $846 million and $1.27 billion over that period, and much more since then, since the number of fusion centers has grown from 40 to 77 between 2007 and 2012.

Searching online for evidence that fusion centers actually help solve crimes, one finds very few examples. The Department of Homeland Security has compiled what appears to be a nearly comprehensive list on its website of instances where fusion centers have effectively assisted law enforcement, even in the smallest capacity, in actual criminal cases (a fairly aggressive though not comprehensive Google search by your correspondent discovered only repeats of those cited by DHS). See their list of "Fusion Center Success Stories."

However, with 77 fusion centers active, DHS could only identify 22 "success stories," and reading through the details, in most of those instances the assistance was not particularly critical and law enforcement would have discovered the same leads and information through traditional investigative techniques. The GAO noted in a 2010 report (pdf) that "DHS has not set standard performance measures for the centers." And it shows.

The Constitution Project report (and speakers at their recent forum) assumed that fusion centers have a legitimate and necessary role to play, but I'm increasingly skeptical that's true. Spending on fusion centers has now run well into 10 figures, and those 22 "success stories" represent a pitifully poor return on investment for that level of taxpayer expenditure. So while I'm glad to see the Constitution Project offer detailed operational recommendations to protect privacy and prevent abuse, to me the bigger question is whether the strategy has demonstrated sufficient effectiveness to justify fusion centers' existence in the first place. Certainly if federal funding ran out, I suspect state and local governments would not be able to justify continuing them based on any rational cost-benefit analysis.

Grits understands why ACLU and the Constitution Project would fear civil liberties violations related to fusion centers, and on paper, at least, those concerns are justified. But often on such questions flat-out government incompetence can trump the potential for abuse, and IMO that's what's happened so far with fusion centers. If they were more effective, they could indeed pose a serious civil liberties threat. But from my observation their lameness has thus far outweighed any such dangers, and the bigger question becomes whether their continued existence can be justified at all given the minimal outcomes resulting from such vast expenditures. Based on the evidence available so far, IMO the answer is probably "no."

RELATED: "Fusion centers might be scary if they actually worked." And from the Collin County Observer, "What's wrong with the North Texas Fusion Center?"

Probation departments serve too 'many masters,' but Harris judges mainly responsible for UA mess

In the wake of a scandal over false positives in urinalysis tests that rocked the Harris County adult probation department, spurring the resignation of its director and other top administrators, the Houston Chronicle published a story yesterday titled, "Probation department a no-man's land when it comes to oversight," which included this quote from your correspondent:

Scott Henson, a criminal justice activist and blogger who works with the Innocence Project of Texas, said the oversight structure for probation departments statewide is "incredibly weak."

"The judges are supposed to provide oversight, TDCJ is supposed to provide oversight, but, in practice, none of it is very effective or consistent, and the probation directors are sort of left out there on their own," Henson said. "Everybody knows who runs the jail, everybody knows who runs the prison system. When you ask about the probation department, they serve many masters and, simultaneously, none."

That quote accurately reflected my comment, but failed to include another layer to the issue I tried to convey in my conversation with the reporter: The extent to which individual judges - not just in their role as the board of directors of the probation department but in their decisions in cases that come before them - bear the bulk of responsibility for the mess in which Harris County finds itself.

The Chronicle reported that "The judges last week released a statement saying state law limits their role to establishing the department, approving its budget and appointing a director and fiscal officer. Those limits are to shield the judges from lawsuits." But that doesn't relieve them of responsibility.

Judge Michael McSpadden had earlier told a local TV station that "When you're overwhelmed, what you do is go to the judges is [sic] say don't make the requirements in every single case, we are overwhelmed. We never heard that." But as I'd described previously on this blog, in 2005 a consultant's evaluation (reported here on Grits) told judges that requiring urinalysis in so many cases was consuming too much staff time and causing delays throughout the system. The consultant, Justice Management Institute, specifically recommended that "The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered," but that never happened. In other words, judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem.

So while I agree that, in general, oversight of probation departments is fragmented and incoherent, that doesn't absolve Harris County judges from responsibility for this debacle. The county paid good money for consultants to tell them that overuse of urinalysis in the name of being tuff on crime was overwhelming the system, and they just kept doing it. As a consequence, the county has had to stop relying on the probation department's drug test results entirely until the issues can be resolved - a situation made more difficult by the untenable leadership vacuum at the top of the agency.

It's true the probation department serves too "many masters." But in the end, it's judges who bear most of the responsibility for letting tuff-on-crime politics subsume their good judgment when it comes to the volume of UAs swamping the department's ability to effectively oversee them.

HPD cops stay on force after bilking city for nearly $1 million in overtime scheme

In a story out today titled "Four suspended HPD officers used ticket scheme to earn overtime pay," the Houston Chronicle reported:

Four veteran Houston police officers who collected nearly $1 million in overtime pay combined since 2008 were recently suspended for listing one another as witnesses on traffic tickets to help themselves get overtime for testifying in court, according to records obtained Wednesday.

From 2008 to the present, the four officers who specialize in writing tickets together were paid $943,000 in overtime, city payroll records show.

The punishments handed down Sept. 4 by Police Chief Charles McClelland range from 20 to 45 days off without pay, concluding a lengthy investigation by HPD internal affairs triggered by tickets issued in April 2011.

My question, unanswered in the story: Were they required to pay back the unearned overtime? If not, why not? Given how much money they took in through this scheme, these unpaid vacations amount to a slap on the wrist, at best.

Further, according to the Chronicle, "In one stop, an officer drove himself to the city jail where a suspect had already been taken, but listed himself as a witness to one traffic violation he did not observe, his disciplinary record noted." So where are the criminal charges for falsifying a government document, or perhaps even fraud?

A Chronicle commenter pointed out that, "Anybody else steals even one tenth that amount of money gets a lengthy jail sentence and is labeled a thief and felon for life." Another argued that, "If this happened in the private sector these guys would've been canned, had to repay the money, and possibly face fraud charges." Those seem like fair criticisms to me.

New report criticizes bail industry's parasitic relation to justice system

The Justice Policy Institute has issued a new report (pdf) critiquing the bail bond industry titled "For Better or For Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice." Commercial bail has been outlawed in most of the world as well as four American states - the only other nation that relies on commercial bail bondsmen is the Philippines - and this report makes a good case why. Issuing $14 billion in bonds per year and "Backed by multibillion dollar insurance giants, the for-profit bail bonding industry maintains its hold in the pretrial system through political influence," according to the report.

"The bail industry argues that taxpayers pay for pretrial services,," noted JPI, "whereas bail bonding is 'free.'" But the group argues that, "This ignores a number of collateral costs, both to taxpayers and to communities." Those costs including higher incarceration expenses for county jails and the cost to defendants' families, an important factor which is seldom considered in public policy debates. "In the best case scenario, the person and their family have less to spend on food, clothing and other goods and services that they would have bought in the community." In the worst-case scenario, a family member who did not commit any crime may lose their house thanks to an irresponsible relative.

Further, unlike surety bonds which release defendants solely based on ability to pay, pretrial services perform both risk and needs assessments and may facilitate treatment for defendants with addiction problems which improve overall public safety outcomes. "By assessing drug dependency and getting people started on treatment pretrial, PTS can save taxpayers money and reduce victimization that results from offenses committed to get money for drugs. Additionally, pretrial drug treatment may influence the court’s trial decision favorably by demonstrating a person’s willingness to address underlying health problems and take accountability for their actions."

Not only that, when defendants abscond the the state frequently never sees the forfeiture money: "courts seldom actually make bondsmen pay if the person they’ve bonded fails to appear in court. Forfeiture rules are, with the help of the industry’s political power, written to give the bail agent nearly endless opportunities to avoid paying forfeitures and make the process labor intensive and complex for the courts." Indeed:

The process can be burdensome enough to actually discourage jurisdictions from pursuing forfeiture collection altogether leading to situations where millions are owed. Following are examples of just a few recent cases where a lack of forfeiture collection has been discovered:

• California — estimated $150 million owed
• New Jersey—more than $100 million owed
• Hawai’i — more than $9 million owed
• New York City — more than $2 million owed
• Harris County, Texas — $26 million owed
• Tarrant County, Texas — $73 million owed
• Dallas County, Texas — $35 million owed

Bondsmen in these areas and around the country are aware of loopholes and collection laxity and many have not paid a forfeiture in years, reducing their financial risk to zero. As noted earlier, even when they are subject to forfeiture, bail bondsmen pass this cost on to those who paid the initial bond, with additional costs added on.

One section of the report focuses on radical changes to the system of pretrial release in Harris County, where "From 1994 to 2004 the percent of people in Harris Co., TX on pretrial supervision required to post a bond increased from (less than) 3% to (greater than) 60%." The number of misdemeanants who were required to post bail increased an astonishing 30,100% over that period! (See prior Grits coverage of this phenomenon.)

To this day, misdemeanor defendants in Harris County are routinely locked up pending trial if they can't make bail. As Grits reported recently, "According to the Pretrial Services division's annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail [in 2011]. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn't make bail and remained in jail either until they pleaded out or their case was otherwise resolved."

Judges in Harris were criticized particularly for increasing use of surety bonds while simultaneously imposing bail conditions (including urinalysis, which has generated its own problems) that require monitoring of surety bail clients by the county Pretrial Services division. "Since the early 1990s," reported JPI, "the agency has also been asked by some judges, in both the District Courts and the County Courts, to provide supervision for some people released on surety bail with special conditions that must be monitored."

Another section of the report focuses on the political influence of the bail bond industry, documenting large campaign contributions from the industry to key elected officials. From 2002 to 2011, Texas saw the second largest amount of bail-bondsmen contributions to elected officials, topping $400,000. In particular, three Texas legislators - state Senators John Whimtire and Juan "Chuy" Hinojosa, along with state Rep. Allen Fletcher - between them received $102,766 over that period.

In 2011, the report noted, Sen. Whitmire filed legislation that would have eliminated "deposit bail" in Texas counties, which according to the bill analysis "is when a defendant pays only a small percentage of the face amount of a bond in exchange for his release" to the county instead of a commercial bail bondsman. "The purpose of this bill [was] to discontinue the use of deposit bonds in the state of Texas," said the bill analysis, though thankfully it failed in the House after passing out of the Senate. Also last year, Rep. Fletcher filed legislation which would "require a judge or magistrate in whose court a criminal action is pending to discharge a surety's liability on a bail bond" after five years," essentially letting the bail bondmen off the hook. That bill made it out of committee but never made it to a house floor vote.

Among jurisdictions which have outlawed commercial bail, Kentucky (of all places) is frequently cited as offering perhaps the best US model. Here's JPI's description of their system:

Kentucky established its PTS (pretrial services) system in 1976 when it made for-profit bail bonding illegal. PTS officers interview arrested persons except those who decline an interview or make bail immediately. Using their recently-validated risk assessment tool the officer then makes a pretrial release recommendation based on the person’s measured risk of failing to appear at trial or being rearrested before trial. As in Multnomah County (OR), there are a range of options available to court officials regarding pretrial release. They may choose ROR, supervised release or set a high bail to reduce the likelihood of release.

In 2011, the Kentucky legislature passed HB 463, a comprehensive criminal justice overhaul bill which mandated changes in the pretrial system, further codifying PTS practice into law. A recent evaluation of outcomes showed positive gains following the implementation of HB 463 policies. Although the state already enjoyed relatively high outcomes in trial appearance and arrest-free pretrial release, the changes improved these even more.

The state saw its Appearance rates rise from 89 percent to 90 percent, post-HB 463. Also, the percentage of those released pretrial who were rearrested before their trial date dropped from nine percent to eight percent in the same period. Kentucky is a prime example of how states can achieve, maintain and improve pretrial outcomes in a system that doesn’t allow for-profit bail bonding.

Notice Kentucky hasn't completely eschewed the use of cash bonds, but (as one of several tools in the toolbox) uses the sort of "deposit bond" method that Sen. Whitmire's bill last year would have made illegal here in Texas.

The JPI report (pdf)) should be required reading for judges and county commissioners, not to mention legislators on committees governing these matters. IMO it's past time for Texas to join Kentucky and most of the rest of the world in outlawing commercial bail, but give the political clout of the industry I don't anticipate that happening anytime soon. Certainly, though, even in the present political climate, it should be possible to bolster county pretrial services agencies and ratchet up efforts to collect forfeitures from surety bond companies when their clients abscond. The bail industry's parasitic relationship to the justice system - socializing risk and privatizing profit - offers little tangible benefit compared to the alternatives embraced by Kentucky, the federal system, and nearly everywhere else on the planet.