Texas 'state jails' strayed far from their original purpose

State jails have deviated far from their original purposes, reported Mike Ward in the Austin Statesman ("State jails struggle with lack of treatment, rehab programs," Dec. 30), to the point that most people in them aren't actually state jail felons: As of the end of October, "just 11,802 were serving time for state jail offenses. Another 13,530 were regular convicts." (In Texas, "state jail felony" is an official euphemism for what in other states would be a "fourth degree felony.") Moreover, those facilities produce worse outcomes than regular prisons: "Today, Texas’ 20 state jails have a higher recidivism rate than state prisons: 33 percent of state jail felons are convicted of new crimes, compared with 26 percent of regular prisoners. The state jails also have fewer treatment and rehabilitation programs than many of the regular prisons — the opposite of the original goals."

In many ways, wrote Ward, the rise of specialty courts focused on strong probation have made the original state jail concept obsolete: "many of the newly classified 'fourth-degree' felons were diverted to other community-based programs and specialty courts" as local judges became more confident in strong probation methods:

When state jails were established, Jefferson County Judge Larry Gist recalled that courts were supposed to use them in conjunction with community supervision programs or to “get the attention” of a defendant who was resisting a change to a no-crime, no-drugs lifestyle.

Within a few years came the inception of so-called drug courts, which handle only drug cases and tailor treatment and punishment to fit each offender. As more low-level drug offenders went through those courts, which often sentenced them to community supervision and occasional nights in the county jail for violations — fewer judges were interested in sending defendants to a state jail miles away, especially if there might be a better result by handling the case locally.

A sidebar to the story identified the following reform proposals for state jails:

• Allowing convicts housed in state jails to be paroled, so they could be kept under supervision after they leave state custody, instead of completing their sentence and being released to the street. Currently, they can serve up to two years with no chance for parole and often without any early release time credits that regular prison convicts are eligible for.
• Restarting intensive drug and alcohol treatment programs that were to be a cornerstone of the state jails but were downsized a few years after they opened and slashed when the state budget was drastically cut in 2003.
• Require that all prisoners convicted of state jail felonies be sentenced first to community supervision, as was intended when the program was established, rather than allowing judges to send offenders directly to a state jail. Many judges found it too costly to bring offenders back and forth to court from a state jail when they could instead sentence them to local treatment programs paid for in part by the state.
• Better integrate treatment and rehabilitation programs behind bars with so-called aftercare initiatives, so state jail inmates can return home under supervision that could help reduce the chances of recidivism.

While legislators have been discussing similar reforms for several years, much credit for recent momentum on this score goes to the Texas Public Policy Foundation's Jeanette Moll, who authored a recent public policy report promoting these and similar reforms. See her report and a recent op ed column she wrote for more background on proposals for state jails coming out of that conservative think tank.

See past, related Grits posts:

• Advocates on right and left say reform state jail statutes, close more prison units
• Raising theft categories to account for inflation would generate state jail savings
• Media discussion on eliminating state jails lack nuance 
• State jail creators: Don't kill our baby
• The end of state jails?
• Harris County DA: Revamp state jails

'Make forensic evidence meet standards of science'

A Texas A&M professor and former FBI forensic scientist teamed up to author a column in the Austin Statesman today titled "Make forensic evidence meet standards of science." The article opens:

For decades, largely unrealized by judges, many of the forensic practices admitted into judicial proceedings have been without scientific foundation or any other logically acceptable basis other than observational (inductive) study by experimenters untrained in experimental process.

Most troubling are the declarations of certainty associated with proffered expert opinions in those unfounded practices as expressed by examiners in criminal proceedings, such as in firearm/toolmark identification.

Despite the lack of true scientific foundation, firearm/toolmark examiners typically state to a practical certainty that a defendant’s gun was the only possible firearm that could have fired the fatal bullet in a murder. The identification is made on the basis of scratches (striae) and/or impressions on the bullets and comparisons with defendants’ guns.

When examiners confidently declare individualizations (specific source attributions) between crime scene evidence and evidence seized from an eventual defendant without adequate foundational statistical studies, the testimony constitutes nothing more than intuited opinion or speculation, even if an educated guess, rather than evidence-based testimony.

Largely because there has been little or no extrajudicial interest in most forensic practices in past decades other than DNA, forensic procedures such as hair and fiber analyses, bitemarks and comparative bullet lead analysis (CBLA) were developed through empirical induction (observational study) by the practitioners themselves, almost exclusively nonscientists. As noted by a 2009 National Academy of Science committee report, “The fact is that many forensic tests — such as those used to infer the source of firearms or bitemarks — have never been exposed to stringent scientific scrutiny. Most of these techniques were developed in crime laboratories to aid in the investigation of evidence from a particular crime scene, and researching their limitations and foundations was never a top priority.”

Although observational study (induction) is a useful basis for decision-making in everyday life (e.g., purchasing a vehicle or new shoes based on favorable outcomes of past transactions), it is a particularly tenuous process for forensic experimentation or scientific hypothesis testing without appropriate statistical inference.

Read the rest of this informative column here.

Two exonerees named Dallas News' 'Texans of the Year'

The Dallas News has named exonerees Michael Morton and Christopher Scott "Texans of the Year" for initiating advocacy efforts in the wake of their release from prison stints served for false murder convictions. See their feature writeup describing the men's cases and advocacy efforts after release. An accompanying article portrays some of the reentry difficulties faced by exonerees addressed by Mr. Scott's nonprofit, the House of Renewed Hope. See coverage of the other Texan of the Year nominees here.

Rare pro-Fourth Amendment ruling from Texas Court of Criminal Appeals

The SA Express News reported recently on a rare, pro-Fourth Amendment decision from the Texas Court of Criminal Appeals ("Ruling on Kerr drug case holds Fourth Amendment implications," Dec. 18). The story opened:

Christina Miller invited deputies into her home May 8, 2008, to investigate a report of domestic violence and — after they refused her subsequent requests to leave — was arrested when the officers found drugs there.

The trial court and 4th Court of Appeals rejected her argument that the evidence against her was the fruit of an illegal search, but the Court of Criminal Appeals has reversed those rulings.

The court held that Kerr County deputies — who remained in the home as they conducted a warrant check on Miller — had no authority to stay after concluding the violence report was unfounded. Last month, it granted her motion to suppress the evidence and sent the case back to district court.

Reporter Zeke MacCormack summarized, "The central legal issue is whether officers, having completed any investigation required, can remain inside a residence despite being asked to leave. No, ruled the court — deputies should have left and performed the warrant check outside."

The CCA overruled the trial and appellate courts primarily because of police testilying, with the majority opinion declaring that "videotape presents indisputable visual evidence contradicting essential portions of [the officer's] testimony." If the officers had been truthful, their reasons for staying on the premises would have been justified, but video provided "indisputable visual evidence" to the contrary, held the court.

This will likely affect procedures at many if not most Texas departments. At a suppression hearing, the detective involved declared that, "It it pretty standard for us to, when we're in contact with someone, await until we get the warrant check before we break contact with them." Such "standard" protocols now must change or risk evidence being thrown out in yet more criminal cases.

Here's the opinion, written by Judge Johnson, and here's a dissent from Judge Keller, joined by Judge Hervey.

'School shootings, no matter how horrific, do not justify creating an Orwellian surveillance state in America'

Ron Paul, of all people, expressed views similar to my own "pox on both their houses" perspective on the recent policy debates in the aftermath of the Connecticut elementary school shootings: “Predictably," he declared, as reported by Politico, "the political left responded to the tragedy with emotional calls for increased gun control,” suggesting that, “This is understandable, but misguided. The impulse to have government ‘do something’ to protect us in the wake of national tragedies is reflexive and often well intentioned. … But this impulse ignores the self evident truth that criminals don’t obey laws.” Thank you!

OTOH, Paul blasted the NRA's proposal to place armed police in every school:

He said the federal government should not try to “pursue unobtainable safety” with state-sanctioned security and claimed Democratic and Republican lawmakers have “zero moral authority to legislate against violence.”

“This is the world of government provided ‘security,’ a world far too many Americans now seem to accept or even endorse,” Paul said in a statement on his website. “School shootings, no matter how horrific, do not justify creating an Orwellian surveillance state in America.”

He continued: “Only a totalitarian society would even claim absolute safety as a worthy ideal, because it would require total state control over its citizens’ lives. We shouldn’t settle for substituting one type of violence for another.”

The proliferation of legal guns in America over the last several decades makes their prohibition as fanciful as the prohibition of alcohol or pot. Yes, "we could try." But you'd fail, just as the drug war has failed, just as alcohol prohibition failed. This isn't Europe or Japan, where the populace was disarmed by totalitarian states, or else under martial law after a war, so that strict gun control could be imposed from scratch. In the US, and certainly Texas, it would be many decades before the black market exhausted its supply. The only upside would be for the private prison companies, who are always looking for new categories of citizens to criminalize and incarcerate.

By the same token, in an era when the Obama Administration considers civilian casualties acceptable collateral consequences of extra-judicial executions (read: drone strikes), I couldn't agree more that “Democratic and Republican lawmakers have 'zero moral authority to legislate against violence.'” And his comment about the NRA proposal "substituting one kind of violence for another" could have come straight from Gandhi or Dr. King. Paul's statement expanded on the theme: "Real change can happen only when we commit ourselves to rebuilding civil society in America, meaning a society based on family, religion, civic and social institutions, and peaceful cooperation through markets. We cannot reverse decades of moral and intellectual decline by snapping our fingers and passing laws." Amen, brother. Preach!

I always worry when government makes policy in reaction to some specific, rare event like the mass shooting of first graders. There's an old saying, when you hear hoofbeats, think horses, not zebras. The massacre in Connecticut was a zebra, one cannot reasonably ban everything with hooves in response.

Personally, I find US and Texas gun laws both over- and under-restrictive, in an almost schizophrenic kind of way. For example, it's no doubt too easy for folks diagnosed with a serious mental illness to acquire firearms, and the legal framework governing mental illness is conflicted and generally underdeveloped. We could do much better at getting those in need access to mental health services and supervising, whether in corrections facilities, hospitals, or in the community, people who pose a serious risk of violence when off their meds. Intermediate levels of supervision - perhaps including greater use of preemptive civil commitments - could support compliance with treatment protocols on the front end instead of punishing the mentally ill after something bad has happened. But all that would require a community mental health infrastructure that today doesn't exist. In most places, the county jail is now the area's largest mental health provider. OTOH, if you want to talk about "gun control" aimed narrowly at those with serious mental illness, you'd probably get a lot less pushback than for any kind of general ban.

At the same time, the universal ban on felons possessing firearms ends up sending a lot of folks to prison who've committed no other recent offense, and only a subset of those people (Texas releases more than 70,000 felons from prison every year) are so dangerous they merit a lifetime ban on firearm ownership, as federal law prescribes. Meanwhile there are some misdemeanors, including family violence, that probably merit elimination of gun rights but don't. (In Texas, a domestic violence conviction means you can't own a gun for five years.) Misdemeanors vs. felonies is an arbitrary line.

Certainly I believe the law can be changed in ways that would reduce the number of gun deaths. As our e-pal Dan Kahan recently opined, the most immediate and effective method of reducing the gun death total - though it has nothing to do with lone-gunman school shootings - would be to legalize, tax and regulate marijuana and cocaine. A large proportion of gun deaths - not the least of which are the 60,000 or so in northern Mexico over the last six years - relate to the black-market drug trade. You don't see the makers of Samuel Adams lager engaged in gun battles with Anheuser Busch.

However, there's no public safety benefit from criminalizing common activities and uses by everyday gun owners, especially because there are too many of them. (Long-time readers may recall Grits worked with the Texas State Rifle Association and even authored a public policy report in support of legislation to allow legal gun owners to carry a weapon, stowed securely, in their personal vehicles.) But neither are more guns inherently a good solution. Giving teachers guns to keep in classrooms full of mischievous kids, for example, as has been suggested in Arlington, is a recipe for disaster.

The all-or-nothing debate over guns has turned into another hackneyed, culture-war flashpoint, obscuring more moderate, selective policies aimed at mitigating specific, underlying causes of gun violence. Ron Paul, I fear, is the wrong messenger; the public is so used to ignoring him it's got to be second nature by now. And Grits thinks government should probably play a bigger role in this matter than the Congressman would countenance, along the lines described above. But I'm glad to hear somebody say in the wake of the Sandy Hook tragedy that more, harsher criminal laws aren't the only or even the best solution.

Sheriffs, police must alter immigration detention practices in light of changes to 'Secure Communities' program

The Obama Administration on Friday announced the revamping of rules for the "Secure Communities" immigration detention program that should have been in place a long time ago, shying away from initiating deportation proceedings after arrests for minor misdemeanors (frequently including traffic offenses), and limiting deportation to more serious crimes. FWIW, if they'd limited it in that way from the get-go, Grits would not have been  nearly so critical of county Sheriffs who participated in the federal program. Here's how the New York Times ("Immigration and Policing," Dec. 25) described this notable development:

The Obama administration on Friday announced a policy change that — if it works — should lead to smarter enforcement of the immigration laws, with greater effort spent on deporting dangerous felons and less on minor offenders who pose no threat.

The new policy places stricter conditions on when Immigration and Customs Enforcement sends requests, known as detainers, to local law-enforcement agencies asking them to hold suspected immigration violators in jail until the government can pick them up. Detainers will be issued for serious offenders — those who have been convicted or charged with a felony, who have three or more misdemeanor convictions, or have one conviction or charge for misdemeanor crimes like sexual abuse, drunken driving, weapons possession or drug trafficking. Those who illegally re-entered the country after having been deported or posing a national-security threat would also be detained. But there would be no detainers for those with no convictions or records of only petty offenses like traffic violations.

The Times' Christmas-Day editorial supporting the rules adjustment concluded:

Some cities and states have resisted cooperating with ICE detainers for the very reasons of proportionality and public safety that [ICE] cited on Friday. California’s attorney general, Kamala Harris, told her state’s law enforcement agencies this month that ICE had no authority to force them to jail minor offenders who pose no threat.

Secure Communities and indiscriminate detainers have caused no end of frustration for many police officials, who rely on trust and cooperation in immigrant communities to do their jobs. They know that crime victims and witnesses will not cooperate if every encounter with the law carries the danger of deportation. They have shied away from a federal role that is not theirs to take. 

ICE’s announcement seems to make those efforts unnecessary. It puts the Obama administration on the same page as states and cities that have tried to draw a brighter line between their jobs and the federal government’s. A stricter detainer policy is better for police and sheriffs, who can focus more on public safety. It makes people less vulnerable to pretextual arrests by cops who troll for immigrants with broken taillights. And it helps restore some sanity and proportion to an immigration system that has long been in danger of losing both.

As the Obama Administration has ramped up deportations to historic levels, the sheer volume of federal immigration cases has invited error, not to mention more mundane, but still important, workaday injustices caused by delays in backlogged federal courts. I'm relieved to see some common sense injected into what has been a highly politicized program.

The implications of the new rules for those managing county jails are important: They "do not require a detainer in each case," which is how too many Texas Sheriffs have been operating, and now Sheriffs may only place ICE holds on jail prisoners:

where (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) one or more of the following conditions apply:

• the individual has a prior felony conviction or has been charged with a felony offense;
• the individual has three or more prior misdemeanor convictions;
• the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-

o violence, threats, or assault;
o sexual abuse or exploitation;
o driving under the influence of alcohol or a controlled substance;
o unlawful flight from the scene of an accident;
o unlawful possession or use of a firearm or other deadly weapon;
o the distribution or trafficking of a controlled substance; or
o other significant threat to public safety;

• the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
• the individual has illegally re-entered the country after a previous removal or return;
• the individual has an outstanding order of removal;
• the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
• the individual otherwise poses a significant risk to national security, border security, or public safety.

A revised I-247 detainer form is being issued by the feds to reflect the new criteria, so local Sheriffs will have to change their procedures as well. Moreover, some in local law enforcement will need to shift their expectations; Grits has seen numerous anecdotal reports of police arresting illegal immigrants over traffic violations who ended up facing deportation proceedings, and I've suspected in some cases that was the arresting officer's goal - that a US citizen wouldn't have faced arrest under the same circumstance, were it not for the willingness of the Secure Communities program to deport people even based on the flimsiest or pettiest criminal charges. Maybe that now will change.

Notably, a footnote to the new rules states specifically that, "Given limited enforcement resources, three or more convictions for minor traffic misdemeanors or other relatively minor misdemeanors alone should not trigger a detainer unless the convictions reflect a clear and continuing danger to others or disregard for the law." [Emphasis added.] That addresses the biggest problems with the law, though obviously now the debate shifts to what is a "relatively minor" misdemeanor? Is that just Class Cs, here in Texas, for which the maximum punishment is only a fine? Does it includes offenses in higher categories where the Legislature gave police authority to write tickets instead of arrest? How about non-violent Class B or A misdemeanors? ¿Quien sabe? One can't tell from the documents linked above. So there is still some local discretion afforded in the rules, which is all the more reason for local jailers to begin revamping their own policies in light of this new ICE guidance.

Did election spur GOP emendation on immigration? State legislation edition

"Time makes more converts than reason," Thomas Paine wrote sagely, and that observation perhaps explains the lack of bills filed at the Texas Legislature so far aimed at antagonizing or capturing illegal immigrants compared to 2011. Recalled the SA Express New ("Immigration low on Texas' legislative radar this year," Dec. 26):

When it was time to file bills ahead of the 2011 Texas legislative session, the race to address illegal immigration was so urgent that one Houston-area representative camped out on the steps of the Capitol to ensure she was the first to propose making it a state crime to be in Texas without papers.

As lawmakers prepare for the 2013 session, they are mostly silent on the immigration front. Those calling for states to crack down on immigration in Texas saw their efforts dissolve last year as lawmakers struggled to pass a budget.

The ban on so-called “sanctuary cities,” which Gov. Rick Perry had deemed emergency legislation, died in a late-night committee hearing as Republicans watched evangelical and big business leaders line up with Democrats to defeat the bill.

By comparison, this year hardly any similar bills have been filed so far. The story attributed that to "The widely held perception ... that harsh rhetoric on immigration helped sink Republican presidential nominee Mitt Romney in November, and could do the same to the Republican majority in Texas." Maybe so: There's still a long time between now and the end of bill filing season, though.

Nationally I know Republicans are worried about those issues, but here in Texas, despite the best estimates of our finest actors, the Latino demographic shift benefiting Democrats isn't projected by most pollsters to overtake Rs in statewide races until perhaps 2022, as Rick Perry's pollster Mike Baselice estimated privately a few years ago, or even later, by some estimates. Politically, that puts it too far in the future to worry about for the next few election cycles, except perhaps for a handful of identifiable swing districts. (A mentor once told me that any public-policy statistical projection extending beyond five years into the future amounts to "fiction writing.") Still, Texas Republicans also care about national politics, and we do seem to be at a moment where numerous national GOP figures have risked apostasy from the party's hard line to support the Dream Act and even a "path to citizenship." There's a sense that everyone's waiting, that there's a deal to be had but it hasn't yet been fleshed out behind the scenes. We'll see.

Have time, and a presidential election, evinced a change of heart among Republicans on immigration? Perhaps momentarily, but I fear too many sitting politicians have put too much political capital into the issue for it to go away quietly. Maybe we'll get lucky and Congress will soon seize the opportunity afforded by this election-driven emendation to pass national immigration reform. Immigration should be something that rarely comes up on a blog devoted to state-level criminal justice issues, and Grits would be thrilled for Congress to take the issue off my plate, and even better, the Texas Legislature's.

DPS administrator raises: Where are the small-government conservatives when you need them?

The Austin Statesman has a story fleshing out the issue of administrator raises at the Texas Department of Public Safety ("Management positions, salary increase at DPS while state trooper pay raises languish," Dec. 22), a subject Grits had raised back in 2011 after state Sen. John Whitmire criticized lesser raises at what was then the Texas Youth Commission, demanding, ultimately successfully, that the raises be rolled back or the positions eliminated.

At the time, Grits pointed out that pay raises to administrators at DPS were at least as egregious and ill-timed as those at TYC, though the latter agency receives both more media scrutiny and less respect and deference than DPS (for a variety of reasons, some more justified than others). In yesterday's paper, the story by the Statesman's Brenda Bell began thusly:

When Gov. Rick Perry made Steve McCraw the director of the Texas Department of Public Safety in 2009, only a dozen DPS employees earned $100,000 a year or more at the notoriously tight-fisted agency.

Now there are 73, reflecting an enormous growth in DPS management positions and pay since McCraw, an ex-FBI agent who formerly led the governor’s Homeland Security office, took charge of the department in August 2009.

Meanwhile, the more than 3,500 officers at the largest statewide law enforcement agency — most of them uniformed Highway Patrol troopers — have seen little increase in their base pay, which is significantly below that of most big-city police departments in Texas.

DPS went from 12 employees making more than $100K to 73 in just three years time, but when eleven TYC administrators got raises, Senator Whitmire called it "unbelievable, irresponsible, arrogant and outrageous," insisting:

"Those raises need to be rescinded, the money needs to be paid back, and we need to get the comptroller, the state auditor's office and the (attorney general) involved to find out how this could happen."

He also demanded that Scott Fisher, the chairman of the agency's board, resign.

By contrast, when DPS increased the number of administrators making more than $100K by a factor of six, from 12 to 73, here was Sen. Whtimre's far more reserved assessment:

“I’m aware that they’ve hired a large number of high-end employees. I’m not prepared to fault that,” said Whitmire. “I have confidence in Steve McCraw — I know he’s trying to professionalize the department.”

At the same time, Whitmire said, the stagnation in trooper pay “needs to be fixed. It’s a huge morale factor. They know what people (at the executive level) make.”

For my part, I would have considered it justified if Sen. Whitmire reacted the same way to DPS administrator raises as to those at TYC. What's good for the goose is good for the gander, etc., plus if education and women's health care are getting cut, why shouldn't DPS? The agency has become bloated with administrator salaries at a time when trooper pay has languished and the demands on troopers - particularly as they relate to new homeland security duties - are greater than ever. (If anybody deserves higher salaries, it's the men and women on the front line, not the brass in Austin.)

Why the double standard? Where is the outrage? In this supposedly Tea-Party dominated legislature, where are the small-government conservatives when you need them?

The clemency lottery: Paltry holiday pardons trivialize clemency process

Governor Rick Perry issued 14 pardons this week, a paltry total unless one compares him to President Barack Obama's niggardly clemency record. Grits was quoted in a story on the pardons at the Texas Tribune complaining that the Christmastime pardon tradition makes clemency "seem like a once-a-year event, while really it should be an ongoing function" of executive offices.

Certainly Grits doesn't begrudge those who received clemency. The Houston Chronicle has an effective story ("Pardon gives Houston single mom a fresh start," Dec. 21) of a single mother who numbered among those receiving a pardon who's faced significant employment barriers as a result of a dubious criminal conviction, including denial to nursing school. "I just feel a huge sense of relief," she told the paper. "I feel so liberated to be able to live my life."

If Texas (or for that matter, the feds) had a functioning clemency system instead of a symbolic one, such relief would be available on an ongoing basis to the many thousands of reformed people with criminal convictions. Instead, it's reserved for a lucky few who win the annual Christmas clemency lottery.

A couple of years ago, Grits authored a column in the Dallas News titled "Holiday pardons send wrong message" that expanded on these themes, which I've republished below the jump.

Diversion programs treat prostitutes as victims

Corpus Christi is developing a new diversion program for alleged prostitutes based on a similar, successful initiative in Dallas, the Corpus Christi Caller Times reported ("Corpus Christi police mull program to treat suspected prostitutes instead of jail them," Dec. 17). The story opened:

Police officers and health care providers soon will give prostitutes an option to get off the streets and find help.

Instead of jail time, law enforcement plan to work with county health care officials and judges to provide social services and health screens for people accused of prostitution.

Police Chief Floyd Simpson said the idea is modeled after a program he saw while working in Dallas, where police and medical staff set up mobile clinics in areas with the most prolific prostitution rates.

Known prostitutes were screened for diseases and offered options to find a legitimate job, go back to school, or receive mental health care instead of jail time.

"We're trying a different approach rather than just arresting them again and again," he said.

The news was welcomed by the Caller Times editorial board, which concluded:

The shifting attitude of law enforcement is a welcome about-face from the hard line encouraged by a state law passed in 2001 allowing felony prison time for a third prostitution conviction. All that did was clog the system at a high cost. The Simpson/Dallas solution is compassionate but also pragmatic.

As Jason Boland says in his song about a stripper, "it's all about the money," and society saves a lot of it by not arresting, prosecuting and incarcerating. The American-Statesman's Mike Ward reported last summer that incarceration in a state prison for a year costs $18,538, or $15,500 in a lower-security state jail, but enrolling the prostitute in a community-based program for a year costs $4,300.

That's a simple equation that tough-on-crime sticklers should take into consideration: Treating prostitutes as criminals costs quadruple the price of helping them rejoin society.

There's something poetic in those mathematics, considering that society's treatment of them as throwaway people is what pushed most of them into their unfortunate circumstance in the first place.

This is a rare case where turning around one life makes the whole program worthwhile on at least three levels — heart, soul and pocketbook.

Such programs are a welcome change from the sorts of anti-prostitution stings we usually see, like the one recently reported by WOAI in San Antonio. That story quoted a business owner in the area where SAPD conducted labor-intensive undercover stings last month, and "while he is glad the activity has recently slowed down he said it won't last." “It's usually a temporary thing that it slows down for awhile when I guess the cops get tough on them and then it starts all over again,” he said, presciently.

It's been said a definition of insanity is doing the same thing over and over expecting a different result; to the extent that's the case, the traditional law enforcement approaches to prostitution are clearly insane. So it's great that Dallas has pioneered a service-based approach to prostitution diversion, and I'm glad to see other jurisdictions are considering following their lead.

At the Legislature, a quick check finds three bills filed so far related to prostitution: HB 32 by Menendez is an enhancement for pimps, as though passing harsher laws ever succeeded at eliminating the "oldest profession." And HB 90 by Senfronia Thompson would create broad civil liability for pimps, an approach which to me seems laughable given that most all of them would likely be judgment proof.

The only bill so far building on the Dallas diversion model is HB 91 by Rep. Thompson, which would create a "pre-adjudication diversion program" for juvenile prostitutes, mirroring the approach Dallas and Corpus Christi are pursuing. Grits sees no reason to limit such a approach to juveniles, but that bill would be a good start.

Litigation to probe whether DA retaliated against scientists over DWI forensics

Two former crime lab employees have filed a civil suit in federal court alleging retaliation by outgoing Harris County DA Pat Lykos for revealing damaging information about Houston PDs blood alcohol testing vans, or BAT vans, as they're universally known. Reported the Chron ("Former HPD crime lab supervisors file retaliation lawsuit," Dec. 17):

Two former Houston Police Department crime lab supervisors have filed a federal lawsuit against Harris County District Attorney Pat Lykos, saying the county's top prosecutor retaliated against them after they spoke out about problems with HPD's breath-alcohol testing vans.

The lawsuit, filed Monday, was brought against Lykos, prosecutor Rachel Palmer and Harris County by Amanda Culbertson and Jorge Wong, identified as "citizen whistle-blowers" in the lawsuit.

Among several allegations, the lawsuit says that officials with the DA's office retaliated against Culbertson and Wong by lobbying the Harris County Commissioner's Court to cancel a contract with a local private laboratory, where the two found jobs after leaving HPD.

The lawsuit also alleges that retaliatory actions taken by Lykos and Palmer included harming Culbertson and Wong's reputations and putting their licenses as technical supervisors for the state's breath-alcohol testing program at stake.

Culbertson and Wong said the retaliation began after they expressed concerns about the reliability of tests conducted in HPD's breath-alcohol testing vans.

Big Jolly has more, including audio of the plaintiffs at a press conference. I've little to say about the latest developments that hasn't been said before, save one thing: This type of scandal is exactly the sort of episode that would benefit greatly from the thorough vetting provided by the Forensic Science Commission. But DWI-related testing is specifically exempted from their purview in their governing statute. That's as unfortunate as it is pointless. Without that sort of neutral venue for vetting forensic failings, all that's left for getting at the truth is litigation regarding ancillary employment issues that may or not implicate the flawed science in the case. Restrictions on the FSC's jurisdiction over common forensic practices like DWI testing and fingerprint examination should be repealed. Those areas aren't immune from error and the FSC has earned the opportunity to tackle them based on the professionalism and rigor of their past investigations. They'd be fair (IMO perhaps even too lenient), and even if they discover negligence or misconduct, the sky wouldn't fall.

See prior, related Grits posts:

• It's the cover up that gets you: BAT van edition
• Grand jury investigating BAT van coverup to question Pat Lykos 
• No indictments from Houston BAT van probe
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• 'We've had enough of courthouse cronyism'
• Holy junk science BAT van!  Houston portable breathalyzers' accuracy questioned
• Paycheck vs. Integrity: Houston PD lab supervisor resigns over faulty breathalyzers, feared retaliation

Strong probation for felony DWI in Tarrant County

DWI becomes a felony and thus prison-eligible (third degree felony, 2-10 years) in Texas upon the third conviction. But a specialty court in Tarrant County called the Felony Alcohol Intervention Program has avoided sending hundreds of 3-time DWI defendants to prison through a strict strong probation regimen. Reported WFAA-TV on Monday:

The four-year program isn't easy. Program participants are required to spend 10 days in jail, take random urine and breath tests, intensive counseling and alcohol treatment, weekly court appearances and meetings with probation officers. They must also maintain full-time employment.

"A lot of people don't understand that when you're incarcerated and directly taken out of society, you don't get an opportunity to change your life, because you're just sitting in a cell," Knapp said. "There's no support. There's nobody there to help you."

The FAIP program is saving taxpayers millions of dollars. It costs $50 a day to house inmates in Texas prisons. Tarrant County's program costs $3 a day.

"It's not that people drink and drive," said Judge Sharen Wilson, one of the founders of the DWI program. "It's that they drink and drive and hurt somebody. So until we break that cycle, then I think the cost is incalculable."

Judge Wilson said if the offenders violate any of the program's requirements, she has no problem sending them to prison. But this DWI program is the most successful probation program in Tarrant County.

Of the 261 offenders admitted into the program since 2006, only two percent of them have returned to prison.

Law enforcement grants, DWI and the fiscal cliff

As the feds approach the "fiscal cliff," media are beginning to look at the state-level implications. But one small element hasn't been much discussed: Federal grants to states for law enforcement. In particular, federal funds for Texas DWI grants were cut by 30% in 2011 - from $20 million to $14 million - and could be eliminated entirely if a budget deal isn't struck, or for that matter if the grants are eliminated as part of GOP-driven spending reductions being proposed in Congress. (The Obama Administration wants to increase spending on law enforcement grants, but the funds are part of the discretionary spending considered "on the table" in the fiscal cliff negotiations.) Reduced federal grant funds already contributed to a recent dip in the number of traffic stops initiated by Texas law enforcement. One wonders: What would be the effect on DWI enforcement if the remaining $14 million were cut?

DWI enforcement is as much about public relations as taking dangerous drivers off the street, as nearly everyone agrees that TV ads and public relations campaigns related to DWI have contributed at least as much as tougher penalties and strict enforcement to declining DWI death rates. So you get press events like the one described in this report from KUHF radio, announcing a federal grant to Harris County to coordinate:

Press conference announcing DWI grant via KUHF

a new DWI Task Force.  The group is administering a $295,000 TxDOT grant.  That money will help law enforcement in an eight-county area with enhanced DWI enforcement efforts.

Funds will be used during the Christmas holidays, and they'll also be used during summer holidays when people tend to drink a lot.

Kaufman says large police and sheriff's departments have had DWI enforcement grants for years, but the task force will allow smaller departments to conduct their own efforts.

"They might not have the numbers specifically to qualify.  Some of the administrative issues just make it a challenge in order to do the enforcement and administer the grant."

Much of the grant money will be used to pay for police overtime during the "no refusal" period.  That's when police get a search warrant to take a blood sample when a drunk driving suspect refuses to take a field sobriety test.

And in some places the enforcement effort goes even further.

Montgomery County prosecutor Warren Diepraam says they've even sent  uncover officers into bars to make sure customers aren't being overserved.

If federal grants for DWI enforcement go away, these sorts of activities would either a) cease, b) be paid for with local tax dollars or c) be covered by state budget writers, perhaps shifting funds from border security or the Governor's business incentive accounts. That last option seems the least likely. If grants for DWI enforcement were eliminated at the federal level, it wouldn't surprise me if state budget writers balked at funding routine local law enforcement activities, especially since some DWI grant funds have been misused. So, even as Houston-area authorities celebrate their latest grant, officials must also face the reality that those funds may not be available, certainly at such generous levels, in the near future.

Of course, DWI enforcement isn't the only criminal justice area where state spending could be affected by federal budget cuts. Certain specialty courts and other innovative programs have been funded through federal pass-through grants which have generally demonstrated excellent results, including for DWI. Local law enforcement has used federal grant funds for tons of equipment upgrades, vehicles and to purchase a variety of military-style gear. And most of Texas' border security spending relies on federal spending. (For that matter, cuts to the military would disproportionately affect Texas, too, because we have so many military bases.) If those federal dollars went away, it would leave hundreds of state and local officials scrambling to plug the gaps.

Between the fiscal cliff and Gov. Perry's insistence that the state won't accept new Medicaid funds, state and local government in Texas can expect a lot less benefit from federal spending for the rest of the decade than we've enjoyed in recent years. The complaints won't come until after the fact: Right now confusion about what's going on and gridlock surrounding Congressional debates makes discussion of specifics premature. But Grits suspects that the landscape surrounding federal law-enforcement grants is one of many things that could change dramatically as a result of the budget negotiations in Washington.

Ex-Denton prosecutor named one of America's worst bosses

A fired supervisor at the Denton County District Attorney's Office, Susan Piel, came in at number six on the list of America's Worst Bosses in 2012 after she allegedly denied promotions and contributed to a hostile work environment for an African American attorney who complained of racially bigoted remarks by Piel's husband, also an attorney in the office. Though the Denton DA at first defended the accused, the Piels and two others were eventually fired after a federal jury awarded just more than a half million dollars to the wronged employee. See Grits' earlier coverage of the episode which earned her this dishonor. According to eBoss Watch, which produced the rankings:

To date, the 2012 America’s Worst Bosses have cost their employers over $41 million in monetary damages and lawsuit settlement payments.  Of this amount, the 2012 worst bosses in the public sector have cost their respective taxpayers over $21 million.

The managers who made this year’s list of America’s Worst Bosses were named in workplace lawsuits filed by their employees and were accused of workplace harassment and/or sexual harassment, discrimination, retaliation, and/or creating a hostile work environment.

Prisoner population declines nationally; Texas tops in private prison inmates

According to a new report (pdf) from the Bureau of Justice Statistics:

In 2011, 26 states had decreases in their prison population totaling 28,582 prisoners. California’s decline of 15,493 prisoners accounted for more than half of the total decrease (see text box on page 4). New Jersey, New York, Michigan, Florida, and Texas had decreases of more than 1,000 prisoners, and Connecticut and North Carolina had declines of more than 900.

California’s prison population declined by 9.4% in 2011, which was the largest percent change among the 51 jurisdictions. New Hampshire (5.3%), Connecticut (5.2%), and New Jersey (4.7%) experienced declines of about 5%.

Here's the official press release. This is the second consecutive year BJS reported a national, overall, decline in the total US prison population, though with California's rapid de-incarceration, that aspect of the report is perhaps unsurprising. Texas now has the largest prison population in the United States, said the BJS, with 172,224 prisoners at the end of 2011 compared to 149,569 in California, a state whose population is half again the size of Texas. (Next comes Florida, with 103,055 prisoners, then Georgia and New York, with just under 56,000 each.

Digging into the numbers a bit, though, what's happening is more complex, and more fundamental, than just the court-ordered decline in Golden State prisoners. Even with California's forced de-incarceration, the total number of releases from prison declined overall at state and federal prisons last year, according to BJS. But the number of admissions, particularly into state prisons, declined even more. "The 668,800 admissions into state or federal prison in 2011 was the lowest number of admissions since 2002."

Notably, said BJS, "Texas (18,603 inmates) and Florida (11,827 inmates) had the highest number of inmates in private prisons."

Here's a tidbit I didn't know: "More than 50% of all prisoners housed in local jails in 2011 were serving time in Louisiana, Texas, or Tennessee," though that's in part because "Louisiana incarcerated more than half (20,866) of its prison population in local jails," a process that was described in detail in an excellent New Orleans Times Picayune series. Still, that puts Texas among the states with the highest local jail incarceration rates.

RELATED: See from the Philadelphia Tribune, "$337 million in savings: States closing prisons as inmates decline."

Hays County will save money eschewing 'free' DPS crime lab services, paying Austin

Grits has suggested for some time that shifting to a fee for service model would help alleviate backlogs and adequately fund state crime labs, mainly because trends are moving in that direction whether folks like it or not. KXAN-TV in Austin reported last Thursday that:

Despite a backlog of cases, the Austin Police Department forensic lab will begin testing cases from Hays County.

Hays County agencies will pay fees to the APD lab to have forensic evidence examined. The testing will include DNA, firearms, drug, and latent prints.

“This is the first time we have offered this to an external entity,” said Bill Gibbons, the forensic services manager for APD.

Gibbons said the extra workload will not slow down APD cases because overtime hours will be used for Hays County testing.

This is precisely why Grits supports fee for service payment structure statewide: If the state won't provide quick testing, counties must pay to have it done elsewhere, shifting to a fee for service model by default. It just happens in a piecemeal, disorderly fashion. Other counties including Dallas already operate fee for service labs, while the public lab in Bexar County provides forensic services outside its jurisdiction (and in, as I understand it) on a fee for service basis.

Grits has argued that "DPS' 'free for everybody' model creates false incentives and is IMO unsustainable as demand for crime lab services is growing much faster than the actual crime rate. Switching to a fee for service model would rationalize the process from a budget perspective and stop taxpayers in jurisdictions with their own crime labs from subsidizing the rest of the state." Taxpayers in jurisdictions with their own crime labs, i.e., urban taxpayers, like in Austin and Houston, are being double-taxed to pay not only for lab costs in their own towns but to pay for lab work in counties that rely on DPS. So at least, I suppose, the Austin crime lab will now get paid to do Hays County's work instead of subsidizing it with taxes, but the fundamental financial disconnect remains.

Incidentally, the TV station reported that paying for forensic services in Austin is cheaper than getting them for "free" from DPS because the wait entails extra local costs, particularly at the jail. They've calculated that:

using the APD lab would save money in the long run.

Hays County has been using the Department of Public Safety lab which services more than 200 counties in Texas. That leads to big backlogs and the longer a case waits to be tested, the more it costs.

The DA’s office estimated that cases taking nearly three months to process in the DPS lab would be finished in almost two weeks using the APD lab.

If DPS shifted to a fee for service model and its backlogs declined - both from reduced submissions and expanded capacity available when counties pay for testing - local governments in small counties across the state would see similar savings. A lot of people are stuck on the idea that crime lab services at DPS are "supposed to be" free. But those "free" services are becoming more and more expensive each day.

Reforming state jails, prosecution as grant management, and other stories

Just a few odds and ends that didn't make it into their own, individual posts:

Narcotics task force cops robbed drug dealers instead of arrest them
Reported the McAllen Monitor, "Two Mission narcotics investigators have been arrested alongside other local law enforcement officers in a federal corruption probe focusing on drug loads stolen from the criminals they had been tasked with taking down." The alleged perpetrators were part of "a joint drug task force made up of Hidalgo County and Mission officers." Long-time readers may recall that multi-county task forces were placed under jurisdiction of the Department of Public Safety back in 2005, with most of them going under within a year, either because they refused DPS supervision or, the rest of them, when Gov. Perry pulled the plug on their funding. But some multi-agency task forces soon formed among agencies all within the same county, as in this example, and clearly some of the same problems still arise. See more on the latest episode from Texas Watchdog.

Conservative plan for reforming state jails
The Texas Public Policy Foundation's Jeanette Moll argued in an Austin Statesman editorial that Texas hamstrung the state jail system "before the first state jail even opened its doors" by implementing direct sentencing instead of using them as a short-term probation sanction. She suggested that, "With hundreds of millions of dollars spent each year on state jails, and outcomes worse than prison, state jails are in dire need of reform." (See related Grits coverage on Ms. Moll's proposals.)

'Texas DPS marks 10,000th match in open cases'
So reported the Texas Tribune. The looming question: Will the Legislature spend money to expand DNA testing capacity at Texas crime labs, not to mention DWI blood testing and other areas where crime labs have backlogs.

Just say "No" to sobriety checkpoints
The Fort Worth Star-Telegram asks "Should Texas have sobriety checkpoints?" For reasons previously stated, Grits votes no.

Strong probation for meth-head driver who hit cyclist
A round of apology letters, an 18-month ban on coaching youth sports teams, and $8,000 in restitution are among "unique" probation conditions for a meth-using driver who struck a stopped motorcycllist from behind in Weatherford.

His only apology is for apologizing
The Waco Tribune interviewed former county tax assessor Buddy Skeen who's currently in jail for misuse of public funds and regrets agreeing to apologize for his actions in open court as a condition of his plea. "I wasn’t punished for my crime. I was punished for my political affiliation."

School discipline roundup

The Texas Education Report has updates on the controversy over RFID use in two San Antonio schools (see related Grits coverage), a report on the hundreds of millions spent by large school districts on disciplinary systems, and another report on a pilot program at Waco ISD aiming to reduce disciplinary referrals, a subject that's lately received national attention. See a related, recent report from the Texas Criminal Justice Coalition titled, "Community Solutions for Youth in Trouble."

Girls' experience in the juvenile justice system
See the Texas Criminal Justice Coalition's recent report.

Prosecution as grant management?
Is there seemingly no failure in public life which cannot be criminally prosecuted?

Peach state criminal justice reform?
Watch what Georgia does on scaling back criminal justice spending. If it can pass in the Peach State, it's got a chance in the Texas Lege.

Private Prison Exec a Grade A Creep
Thomas Weirdsma, the senior vice president of project development at private prison company GEO Group, in my book is a Grad A creep. He's been taking heat lately for a video deposition in which he said that giving false testimony to government agencies "happens all the time." But the real scandal comes from evicting his immigrant daughter in law and allegedly threatening to use his immigration agency connections to have her deported if she pressed charges against his son after she endured "multiple drunken beatings, a near drowning in a bathtub, and an attempted suffocation with a pillow," the Boulder Daily Camera reported earlier this year. Ick! Awarding the daughter-in-law a $1.2 million verdict, jurors found that the Weirdesmas, father and son, each engaged in "outrageous conduct" during the episode, which sounds to me like an understatement.

Huge fine for HSBC money laundering
Finally, a serious punishment for an international bank for money laundering. I'd come to think banks and businesses had been declared effectively exempt from money laundering enforcement, so this is a good sign. A $1.9 billion fine will serve as an actual deterrent for a big company, as opposed to the relatively penny ante "deferred prosecution" cases we've seen in the past. Some despair, though, that no executives are ever personally prosecuted in money laundering cases; particularly at banks like HSBC they're considered "too big to jail." MORE: From Paul Kennedy and Scott Greenfield.

Harsh CIA interrogations ineffective
So concluded the most extensive-ever analysis on the topic, though it's a conclusion I once thought professional interrogators had reached many decades ago following the Wickersham Commission.

Prisoner contributions to state capitol construction sparked labor dispute

My great-grandfather worked as a cowboy on the XIT Ranch, which was famously traded to a group of Chicago investors to finance construction of the Texas state capitol. Our family lore surrounding the capitol's construction, however, didn't generally include prisoners significant role: Says the Texas State Historical Association, "Between 1885 and 1887 about 500 prisoners quarried granite and limestone for construction of the new Capitol in Austin; prisoners at the Rusk Penitentiary manufactured the building's interior cast-iron features." Grits should have known that, I suppose, but I was unaware. What's more, the use of prisoners in these capacities was the source of a major labor dispute dubbed the Capitol Boycott, and reading a description of that protracted quarrel, it's a wonder the capitol was ever built at all!

Habeas writs that helped define Reconstruction-era Texas

While preparing this post related to the history of the Texas Court of Criminal Appeals, I ran across stories about two writs of habeas corpus from Texas' Reconstruction-era history and jurisprudence that one doesn't frequently hear told. For context, in 1867, back when Texas had just one high court, not two, few recall today that all five Texas Supreme Court Justices were removed from office by the US military for their past Confederate allegiances. The five judges were publicly labeled "impediments to reconstruction," a phrase which stuck in the craw of Texas' small and insular legal community for at least two generations, and their expulsion became a cause celebre among ex-Confederate militants. Their names were:

• George F. Moore (Chief Justice, August 1866 -- September 1867, Associate Justice 1862-'66)
• Richard Coke (August 1866 -- September 1867)
• S. P. Donley (October 1866 -- September 1867)
• Asa H. Willie (August 1866 -- September 1867)
• George W. Smith (August 1866 -- September 1867)

These men were replaced by a group which would derisively become known as Texas' "Semicolon Court," so-named among courthouse wags because of their reliance on the grammatical implications of a semicolon in deciding to nullify the gubernatorial election of one of the ousted judges, Richard Coke, who ran for governor as a Democrat in 1873 and won by roughly a 2-1 margin. The Texas Supreme Court declared Coke's election invalid in an extraordinary habeas corpus writ styled Ex Parte Rodriguez - a petition by a man accused of voting twice in a Harris County election. In a ruling handed down Jan. 6, 1874, less than two weeks before Coke's inauguration, "The judges ruled against the state and concluded that Rodríguez should be released because the election had not been valid." So the judgment on the election's validity was a secondary consequence of the ruling, which at its core was about a criminal conviction in a voting fraud case. In the political arena, though, it was viewed (as it was almost certainly intended) as an opportunistic means to rescind the election of a man the military government had openly deposed a scant few years before.

What happened next, though, must have been one of the most exciting moments ever in Texas politics, and certainly in the annals of Texas habeas law:

Disregarding the court ruling, the Democrats secured the keys to the second floor of the Capitol and took possession. [Incumbent Gov. Edmund] Davis was reported to have state troops stationed on the lower floor. The Travis Rifles (see TRAVIS GUARDS AND RIFLES), summoned to protect Davis, were converted into a sheriff's posse and protected Coke. On January 15, 1874, Coke was inaugurated as governor. On January 16, Davis arranged for a truce, but he made one final appeal for federal intervention. A telegram from President Ulysses S. Grant said that he did not feel warranted in sending federal troops to keep Davis in office. Davis resigned his office on January 19. Coke's inauguration restored Democratic control in Texas.

Imagine if, upon receipt of the Supreme Court order in Bush v. Gore, Vice President Gore had holed himself up in the White House with an armed contingent and assumed the Presidency anyway, with the military and law enforcement reluctantly acquiescing to his rule over the court's objections: That would be a rough, modern equivalent of Coke's bold ascension to Governor after his ouster from the Texas Supreme Court.

Coke's story ranks as one of the most extraordinary in Texas political history. And arguably among the darkest. "In 1859 Coke was appointed by Gov. Hardin R. Runnels to a commission that decided that Comanche Indians on the Brazos Indian Reservation should be removed from Texas." He had been a delegate to Texas' secession commission, voting "yes," and volunteered as a private when the Civil War commenced, returning from the field with battle injuries as a captain with the Fifteenth Texas Infantry. He was elected to the state Supreme Court in 1866, then went in just a few years from writing opinions on behalf of the court to openly defying an order by the judges who succeeded him as he seized control of the governor's office at gunpoint. Once there, said this source (p. 156), "the court which immediately followed the Semicolon Court ... was appointed by Gov. Coke and served until the adoption of the 1876 Constitution."

Step back from the details for a moment to consider the arch of this man's political career. Richard Coke went from being ousted from his Texas Supreme Court post by the US military governor to earning the Texas Governor's seat in an election culminating in an armed showdown, after which, victorious, he named all the replacement judges. Can't you imagine those appointments must have been a particularly satisfying political prize? He oversaw the writing of the state constitution that formally launched Jim Crow in Texas, then went to Washington as US Senator to fight federal intervention from what he must have considered the belly of the beast. Even if his tenure in the US Senate failed to match the drama of his state-level political skirmishes, what an epic career!

So it was that Justice Coke became Governor Coke, and later US Senator Coke. But really, none of the  Supreme Court judges ousted by the military left the political scene, and indeed in many ways the group became the core of Texas' post-reconstruction government. Justice George F. Moore, for example, re-emerged as the first Chief Justice on the Texas Supreme Court elected under Texas' 1876 Constitution, which first established the architecture of Jim Crow. Justice Asa Willie, who was a Texas Attorney General before the Civil War and fought at Chickimauga before being elected to, then ousted from, the Texas Supreme Court, later succeeded Moore as Chief Justice before he was elected to the US Congress. A county in the Panhandle is named after Justice Donley (another in west Texas is named for Coke), while George Smith went on to serve in the Texas Legislature before his premature death from yellow fever in 1873. Most pivotal among them, though, was Justice Coke.

In the Coke-Davis episode, a habeas ruling was defied at gunpoint in an embittered political dispute, but it wasn't the only politically significant habeas writ of the era. A beautifully written posthumous remembrance (p. vii) of Chief Justice George F. Moore in 1884 by fellow Texas Supreme Court Justice A.W. Terrell described another remarkable habeas writ, this one issued during war time, which successfully dissuaded a Confederate military commander from punishment of Union sympathizers. The ruling supposedly was the source of the allegation that Moore and his fellow ex-Confederate justices would not subjugate themselves to military rule. Wrote Terrell:

I would do injustice to him as a judge and be recreant to duty as a friend, now that he is gone, if I failed in this solemn moment to rescue his memory from the aspersion conveyed in the language of a military order that once removed him from his high place. At no time during the war between the states was the maxim inter arma leges silent so forcibly illustrated as in 1864. During that year four citizens of Texas, disloyal to her government, however exempt from service, were confined in a military camp on charges of treason and conspiracy against the Confederate States. The general commanding had determined to make by their sacrifice a terrible example - unless rescued by the civil law their doom was sealed. For them, Chief Justice Moore issued writs of habeas corpus, which were disregarded by order of the commanding general on the grounds that the Confederate congress had passed an act suspending the writ. Judge Moore, unawed by power, then rose to the full dignity of a fearless judge and delivered the opinion in which it will be found these memorable words: "If the refusal to obey the writ was by order of the commanding general, then he is the principal offender. Those by whom he has perpetrated so glaring an outrage upon the law and authority of this court are alike his subordinates in criminality and inferiors in rank. ... Better it would be for the prisoners who are in custody, though doubly guilty, beyond all that is charged against them, to go unwhipped of justice, than for the civil authorities to be subordinated to military control and made dependent on the consent of the latter for the discharge of its functions." The commanding general bowed his head, purged himself of the contempt, and the doomed  men, rescued by the hand of the law from a drum-head court martial, were restored to their families. Such was the action of a Texas judge when the tinkle of a secretary's bell condemned unheard the citizens of other states to military bastilles. How can posterity believe that when the clash of arms had ceased and sweet peace came again to bless the land, a judge so loyal to the high trust reposed in him by the people, was removed from the bench by a military satrap as an "impediment to reconstruction" of civil government? Of his associate impediments, one now represents this state in the United States senate, and another presides as chief justice of this court.

That's a powerful example of the use of the habeas writ during wartime - probably one without parallel under Lincoln's Union during the same period.

As the bittersweet irony of history would have it, when Moore took the reins of the Texas Supreme Court as Chief Justice again in 1878, the Texas Constitution had split off the habeas corpus function and given it to a new "Court of Appeal," which was the predecessor of the modern-day Texas Court of Criminal Appeals. As Chief Justice of the new Texas Supreme Court, he no longer had jurisdiction over the writ which had made him a living legend among his peers.

Snitching shaves time off of thousands of federal sentences

In the federal system, reported USA Today ("Federal prisoners use snitching for personal gain, " Dec. 14), "Snitching has become so commonplace that in the past five years at least 48,895 federal convicts — one of every eight — had their prison sentences reduced in exchange for helping government investigators, a USA TODAY examination of hundreds of thousands of court cases found. The deals can chop a decade or more off of their sentences." See an interactive map detailing the number of deals federal prosecutors cut with informants by federal district from 2006 to 2011. Here's a remarkable excerpt from the story:

Every year for the past decade, 11% or more of the people convicted of a federal crime got a shorter sentence because they provided "substantial assistance" to investigators, a USA TODAY examination of federal sentencing data shows. That figure almost certainly understates the extent to which defendants cooperate because some get breaks that aren't reflected in court records and others only pass on information that the government doesn't find useful.

In return, prisoners offer up names and addresses of drug dealers. They wear recording devices or let police listen to their phone calls. They introduce undercover agents to their contacts inside crime organizations.

That kind of help has become indispensable for law enforcement. The Drug Enforcement Administration told the Justice Department's inspector general in 2005 that it "could not effectively enforce the controlled-substances laws of the United States" without its confidential sources.

Cooperation is especially common when drugs are involved. Nationwide, at least a quarter of the people sent to federal prison in drug-trafficking cases over the past five years successfully traded information for a shorter sentence

See related Grits posts:

• Woman forced to become drug snitch in aftermath of petty drug stop
• Little fish
• Police informant use leads to tolerating crimes, solving them and testing community loyalties
• Natapoff: Snitching reforms require 'changing the culture of secrecy and deregulation' among law enforcement
• Dallas home invader snitches, walks free, then fingers competitors while starting new crew
• Dallas drug cop had informant sign blank payment forms
• Dallas fake drug informant shows how 'cooperation' benefits can promote crime
• Petty cash to informants: Routine technique or inducement to perjury?
• Florida passed compromised snitching reforms
• Hollywood film focuses on convictions based on Hearne informant 
• Hinojosa: Corroborate jailhouse informants
• El Paso flooded with drugs for five years while authorities watched

Texas police misconduct roundup

It's been awhile since I visited the CATO Institute's National Police Misconduct Reporting Project site. Noticing quite a few Texas cases in their daily roundups, I compiled some recent ones here:

• Nassau Bay, Texas: A police officer was accused of stealing cash and tampering with narcotics evidence from the department’s property room. ow.ly/g0Sob
• Update: Houston, Texas: The Department of Justice is investigating the use of excessive force by officers. The investigation includes the case where officers killed a mentally disturbed, double amputee. ow.ly/fUv7N 
• Dallas, Texas: The family of a man shot and killed by an officer has filed a wrongful death suit against the officer and the police department. ow.ly/fUrWN 
• San Antonio, Texas: A deputy U.S. marshal who authorities say tipped off his drug-trafficker father about an undercover federal agent was arrested. He is accused of showing a photocopy of the unidentified agent’s driver’s license to colleagues last fall and, upon learning it belonged to an undercover investigator, sending a warning text to his father, who has served prison time for various drug charges. http://ow.ly/fQYMP 
• Update: Dallas, Texas: The woman who was the head of the CrimeStoppers unit, who pleaded guilty to stealing $175,000, was sentenced to 42 months in prison. ow.ly/fQHS0 
• Fort Worth, Texas: During a rash of incidents in 2010 involving Fort Worth police officers and alcohol, chief of staff Paul Henderson summed up the department’s frustrations when he declared: “We are absolutely fed up with dealing with this off-duty behavior.” He was arrested on suspicion of DWI this past weekend. http://ow.ly/fMoXb 
• Houston, Texas: A police officer has been arrested and charged in a domestic violence case. He is charged with two counts of aggravated assault with a deadly weapon. Deputies say he showed up at his estranged wife’s house under the influence, with a gun. ow.ly/fAKOh
• Hurst, Texas: An officer is on administrative leave after being caught on camera kneeing a teen in the back of the head while cussing at him and threatening him. http://ow.ly/fAEvr 
• Uvalde County, Texas: A police officer was arrested for allegedly possessing and promoting child pornography. He was immediately fired after the arrest. ow.ly/fs4yg 
• Socorro, Texas: Four police officers have been accused of official oppression. Two of them face aggravated perjury and tampering with government records charges. The arrests of the officers account for 15% of the police officers on the force. ow.ly/fa1uY
• Pantego, Texas: A woman is suing police officers after she says the excessive force used against her caused her breast implants to rupture. Her attorney says that she has had several surgeries from health complications stemming from the excessive force. ow.ly/f62EO
• El Paso, Texas: An officer pleaded guilty to 35 counts of tampering with government records with intent to defraud. He was one of many officers who retired or resigned last year over an internal affairs investigation into the incident. At least 17 former officers were indicted on criminal charges of tampering with government documents related to overtime. ow.ly/f3YgO
• Sulphur Springs, Texas: A former police chief was sentenced to 3 years in prison after admitting to molesting a family member more than a decade ago. He pleaded guilty to 10 counts of indecency with a child. http://ow.ly/eWR87
• Webster, Texas: A court claim says that an officer used excessive force against two women. They insist that they “were unarmed and did not pose a threat to (the) defendant or any officer.” http://ow.ly/eX8M4 
• Brownfield, Texas: A police officer has been fired from the department after allegations were confirmed of his lying on an application about his inappropriate past in Kermit. He was accused of falsifying court documents and perjuring himself to conceal his improper past with a minor while he was a police officer. http://ow.ly/eWUEX

The story out of Fort Worth, I think, is my personal favorite of the bunch. Which is yours?

UPDATE: They could have added this one: "Fort Worth officer accused of aiding burglary is fired."

Caveats to debate on merging Texas Supreme Court, Court of Criminal Appeals

The Texas Tribune quoted Grits this morning in a story about proposed legislation to merge Texas' Court of Criminal Appeals with the Texas Supreme Court, comporting with both the the national model and the practice in 48 other states. ("Texas and Oklahoma are the only two states with their highest courts divided between civil and criminal jurisdictions.") Toward the end of the article, Maurice Chammah paraphrased Grits' views to say, "Henson argues that lawyers with a civil background would bring a fresh approach to criminal cases. They would approach forensic science debates with the standards of civil law, which he says are more strict."

That slightly misstates what I said to him (or at least, what I thought I said), so let me iterate my stance here: Grits does not fantasize that judges with a civil background have any superior ability compared to criminal court judges when it comes to evaluating the science behind forensic disciplines, nor do I think they bring any "fresh approach" to the subject. Rather, I told Mr. Chammah that there would be a benefit from having the same court interpreting the law consistently in both the civil and criminal realms, citing divergent standards on admissible science as one example. In theory, the same US Supreme Court standard - Daubert v. Dow Pharmaceuticals - governs the admission of scientific and expert evidence in both criminal and civil law, I reminded him. But, in large part because of superior resources available to the litigants as well as historical deference to unproven but longstanding disciplines, the standards which have evolved on the civil side tend to be stricter than those applied to criminal-side forensics. (Similarly, it would be useful to have the same courts passing judgment over juvenile and adult criminal law: Right now the Supreme Court handles the juvie side while the Court of Criminal Appeals oversees cases with defendants 17 or older.)

It would be particularly helpful to have a unified court interpreting scientific issues at this historical juncture because of the array of questions facing forensic disciplines in the wake of the 2009 National Academy of Sciences report on the forensic sciences. That historic document, which has been discussed frequently on Grits, raised questions about the scientific validity of numerous disciplines that were based on subjective comparisons as opposed to "science" as in, supportable by the scientific method. I suggested to him that, as the courts and scientists sort those issues out - a process which could easily take two decades or more! - it would make sense to have the same standards interpreted consistently across the board instead of maintaining separate standards for forensics in criminal cases.

One other quibble: Chammah allows the director of the Texas Supreme Court Historical Society to portray the reason the Court of Criminal Appeals was created as an effort merely to better manage a "backlog." In reality, the Texas Constitution of 1876 was a revanchist document: The fruition of a resurgence of state power by segregationist, mostly ex-Confederate Democrats after a decade under Union-run Reconstruction. It was a first volley on behalf of Jim Crow, featuring most prominently the institution of a poll tax and the creation of separate schools for black children. For context: Following the civil war, military authorities had infamously ousted the chief justice and several sitting associate justices on the Texas Supreme Court, calling them "impediments to reconstruction," and installed replacements sympathetic to "radical Republicanism" (which may be read in the modern context as a euphemism for racial equality). The subsequent creation of a separate court for criminal cases gave Texas Democrats a means to bypass the reconstruction court and what they viewed as its odious precedents, an impression reinforced by the decision to give the CCA's predecessor sole authority to grant writs of habeas corpus, which at the time would have been chiefly considered in the context of the recent imposition of martial law. So if a "backlog" was a fig leaf rationale for creating the court, it is also true that a court unburdened by Reconstruction-era military appointees and their precedents could more easily facilitate the use of criminal law for enforcing the Jim Crow regimen whose foundations were laid in the 1876 Texas Constitution.

The other quotes from me were fairly portrayed, but the paraphrase I thought deserved clarification, and the (revisionist?) history an airing. See the full story, which Grits recommends with the above caveats.