Sunday, June 30, 2013

Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or question of law

Here's a cool graphic from Bad Chemistry comparing crime lab scandals in Massachusetts, Colorado, and the DPS crime lab scandal in Houston involving Jonathon Salvador:

Nice comparison, and for the most part a good summary, though I'd have said nearly 5,000 tests and "at least" 700 convictions were compromised in Texas - it could be many more. (Nice story, too; read the whole thing.) But there was a development this week in these cases that could alter that second Texas bullet. The Texas Court of Criminal Appeals withdrew its prior decision in the Harris County habeas writ for Leroy Coty, which prosecutors had considered a critical test case, following "reconsideration on its own motion."

The court cannot hold a full-blown evidentiary hearing - for that they would have had to kick the case back down to the district judge for further fact finding. So Grits is not precisely clear what's being considered here. All of the state's arguments are things the district judge refused to allow into evidence, like  information about chain of custody, the results of re-testing, etc.. Without putting such material into their briefs and arguments, what can the state even talk about? I'd love to know the backstory regarding how they came to reconsider this case. Are they reacting to media accounts? Were there ex parte communications with prosecutors warning them about "opening the floodgates"? Why would the court reconsider this on its own motion? And why would they choose the 19th such case - the prosecutors' designated test case - to begin asking these questions after blithely dismissing them for months?

The legal issue parties are asked to brief is "under what circumstances, if any, we should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case." So there's no statute they're interpreting, no legal precedent called into question except their own past decisions in these Salvador cases (which did not explain their own reasoning). Am I missing something or are these oral arguments just about determining a desired policy outcome? The parties are being asked to pose hypotheticals under which the court's own, prior rulings (holding that Salvador's possession of the drugs in the chain of custody in and of itself constituted a due process violation) should be followed or ignored. What question of law, really, is at issue that the court has not already decided? It's not like there are conflicting appellate court rulings, etc..

Though IANAL, to me the answer is simple to the question, "under what circumstances, if any, we should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case"? I'd respond: "In cases where, based on the Court of Criminal Appeals decisions in X, Y, and Z (all the past Salvador cases), drug evidence was tainted by being in the lab worker's sole custody." Just quote their own rulings back to them. What other Texas case law would cover such a novel circumstance? (I suppose we'll find out when they brief it, but none was cited in the court's prior Salvador-related orders.) At a minimum, IMO these cases merit relief when the evidence used against them is unavailable for retesting. The high court, though, went even further than that and their unequivocal rulings on the topic as things stand are the law of the land. Now, though, apparently at least some of the judges are suffering from buyer's remorse.

These "oral arguments" may end up having have more in common with a legislative committee hearing than a normal appellate conclave. The question posed to the parties really doesn't ask how to interpret the law, which the CCA has already done in 18 prior, related cases, but what policy the CCA judges should prefer and whether those policy preferences should outweigh the court's prior legal interpretations. If the court flip flops from its past rulings, it will be a pretty blatant example of outcome-based judicial activism. Though in recent years moderates on the court - three of whom are departing in 2014 - have been pushing back toward a more textualist approach, some CCA judges have an unseemly history of deciding the policy outcome they want and then constructing an often-tenuous legal justification to support it, ignoring or embracing stare decisis when it suits them. Time will tell if that's what happens here. The result will potentially affect hundreds or even thousands of cases.

As an aside: Based on past coverage, and taking into account the disappointing MSM silence following the latest Coty ruling, Grits optimistically places the over-under for how many MSM reporters show up to cover these important oral arguments at 2.5. Place your bets.

Saturday, June 29, 2013

Perfumed perpetrator wouldn't get ticket under new Texas statute

Don't know how I missed this 2011 Austin story, but if you did too, check out this TV news report about a girl given a Class C misdemeanor ticket in school for allegedly disrupting class by wearing too much perfume. (Somebody posted the dated item on Reddit yesterday.) The alleged perpetrator was being bullied and used the perfume in response to taunts that she "smelled."

Seeing that story makes me happier than ever that the Texas Legislature this year approved Sen. John Whtimire's SB 1114. That bill prohibits giving Class C tickets to kids under 12. So the girl in the above news story couldn't get a ticket at all under the statute that goes into effect September 1st. After that, police cannot ticket children under 12 in Texas schools. For students 12 and above, all Class C charges must include "an offense report, a statement by a witness, and a statement by a victim. This would apply to offenses that were alleged to have occurred on school property or on a vehicle owned or operated by a county or school district. Prosecutors could not proceed in a trial unless the law enforcement officer met these requirements," according to the official digest (pdf) from the House Research Organization. Moreover, "The Education Code offenses of disruption of class and disruption of transportation would no longer apply to primary and secondary grade students enrolled in the school where the offense occurred." That's a big change.

There are other amendments to the code that should significantly reduce the number of Class C tickets written in schools:
Children accused of any class C misdemeanor (maximum fine of $500), other than a traffic offense, could be referred to a first - offender program before a complaint was filed with a criminal court. The cases of children who successfully completed first - offender programs for class C misdemeanors could not be referred to the court if certain conditions in current law were met.

SB 1114 would prohibit arrest warrants for persons with class C misdemeanors under the Education Code for an offense committed when the person was younger than 17 years old. School district peace officers no longer would be authorized to perform administrative duties for a school district but would be limited to their current authority to perform law enforcement duties.
Also, "Courts would be required to dismiss complaints or referrals for truancy made by a school district if they were not accompanied by currently required statements about whether truancy prevention measures were applied in the case and whether the student was eligible for special education services."

With any luck, thanks to SB 1114, we won't hear more horror stories like that terrible tale of the perfumed perpetrator in the coming school year. Whitmire's legislation has been mostly unheralded - even to some extent on this blog, which should have lauded it in this retrospective post - mainly because it was met with only tepid opposition from law enforcement and received broad, full-throated support from nearly everyone else, regardless of party or station. The media are drawn to a fight but here there was (mostly) sweeping consensus. Be that as it may, SB 1114 was one of the major accomplishments of the 83rd Texas Legislature. Of all the criminal-justice bills passed this year, arguably SB 1114 is the item legislators can point to that will affect the largest number of average, everyday families. It'll be fascinating to parse the data down the line to find out the effect both on ticket writing and the use of traditional school disciplinary methods outside the criminal justice system, which one hopes will be enhanced with the passage of this new law.

Friday, June 28, 2013

Looking back as dust settles on 83rd TX Legislature

A few retrospective criminal justice items now that the 83rd Texas Legislature has ended

TCJC Lege Wrap Up
See the Texas Criminal Justice Coalition's legislative wrap-up on all the criminal-justice topics that group was tracking.

TPPF: Prison closures mean TX on right track
So wrote Arlene Wohlgemuth in an essay that first appeared in the Austin Statesman.

Travis County to keep juvenile felons from state lockups
See a story by Brandi Grissom published both in the Texas Tribune and the New York Times on Travis County's experiment handling serious juvenile offenders in-house instead of sending them to the Texas Juvenile Justice Department. Legislation this session authorized the pilot, which the prosecutors' association is derisively calling the "Shadow TYC."

Bill on juvie capital sentences collateral damage in abortion debate
The bill creating options for sentencing 17-year old capital offenders died along with everything else in the abortion driven brouhaha on the final night of the session. The Texas Tribune rounded up all the casualties. Perry has called  another special session beginning July 1st on the same topics. Versions of the bill have been re-filed as SB 2 by Huffman, HB 4 by Kolkhorst and HB 7 by Moody.

Private Prison Roundup
Lots of good recent posts up over at Texas Prison Bidness, including a thirty-year retrospective on Corrections Corporation of America.

Jokes can get you arrested in airports and, now, online gaming chat rooms

If you've been through an airport in the last dozen years you've heard automated voices over the loudspeakers saying you might be arrested for joking about airport security. Apparently online gaming chat rooms have the same de facto strictures, they're just not posted. From KVUE-TV in Austin (June 24):
Justin Carter was 18 back in February when an online video game "League of Legends" took an ugly turn on Facebook.

Jack Carter says his son Justin and a friend got into an argument with someone on Facebook about the game and the teenager wrote a comment he now regrets.

“Someone had said something to the effect of 'Oh you're insane, you're crazy, you're messed up in the head,’ to which he replied 'Oh yeah, I'm real messed up in the head, I'm going to go shoot up a school full of kids and eat their still, beating hearts,’ and the next two lines were lol and jk.," said Carter.

“LOL” stands for “laughing out loud," and “jk” means “just kidding," but police didn’t think it was funny. Neither did a woman from Canada who saw the posting.

Justin’s dad says the woman did a Google search and found his son’s old address was near an elementary school and she called police.

Justin Carter was arrested the next month and has been jailed since March 27. He’s charged with making a terroristic threat and is facing eight years in prison, according to his dad.

“These people are serious. They really want my son to go away to jail for a sarcastic comment that he made," added Carter.
Unless there's more hard evidence than was represented in KVUE's report, as Stephen A. Smith would say, this is asinine, asiten, aseleven ... I'm not sure which recent example of abuse of power is more troublesome - this episode or the woman arrested for asking to see a non-existent warrant when police wanted to arrest her 11-year old.

MORE: From NPR, which reports that the kid was beat up in jail. His lawyer hopes to get his bail lowered at a July 16 hearing.

Thursday, June 27, 2013

Locks and keys: Security and symbolism

So the Texas Legislature has finished the special session, accomplished nothing, and will do it all over again beginning July 1st. Grits can't begin to tell you how glad I am not to have a dog in any of the particular fights on the special session call. Better them than me.

Over the years, your correspondent has come to indulge the habit of finding some subject utterly unrelated to (or at least fundamentally different than) the topics covered on this blog to occupy my time and reading habits for at least a month or two following each legislative session: Helps clear the intellectual palate a bit and avoid burnout. This year, I decided to delve into an area that's directly related to many of the criminal-justice topics covered on this blog but which has nothing to do with the government, the courts, police, or prison policy. It's a subject that's fundamental to American and indeed human security but which few people outside of a tightly regulated profession ever think deeply about: locks and keys.

My interest began awhile back after we replaced the deadbolt on our front door. On a lark, I pulled out a screwdriver and began taking apart the old mechanism to see what was inside. Upon sliding out the cylinder where the key fits (perhaps a bit too abruptly), an array of springs and tiny pins flew everywhere, I picked them all up and tried to put them back into the slots, but not knowing the correct order, when I'd finished the key wouldn't work. I'd essentially re-keyed the lock, I later understood, and a locksmith in theory could have created a key for the new configuration. Though I threw the old lock away, the episode stuck with me and when the legislative session ended I dove headlong into the topic, seeking to learn more. Locks and keys, I realized, are all around us and arguably more essential to day-to-day security than police or jails. But for most people, they remain great mysteries.

Image via Design Junky
The deadbolt I took apart, like most mechanical locks in America, was a "pin tumbler" lock - a design which dates to antiquity and was popularized in modern times by Linus Yale and the Yale lock company. A pin tumbler lock may consist of 5-7 columns rising from the key slot, each with two small "pins" of different heights and a spring above them pushing the pins downward. (See the illustration at left of a cutaway lock.) When the key is inserted, the pins slide up until the top pins are all above the top of the cylinder, at which point you can turn the key. So the bumps on the key are precisely the right height to raise each pin to the necessary level, which is why the key wouldn't work when I put the pins back in the wrong order.

In his treatise, "Ancient Locks: the Evolutionary Development of the Lock and Key," Scott J. Klemm argues persuasively that the first pin tumbler locks date to ancient Greek and Roman times, not the Egyptians as is sometimes claimed in generalist literature on the subject. (Egyptians did develop the first locks with keys, says Klemm, but they were not pin tumbler locks.) Some of the best examples of ancient pin tumbler locks come from Pompeii, preserved under a mountain of volcanic ash. More than one hundred of these were photographed comprehensively by Italian locksmith Adalberto Biasiotti, Klemm wrote, but their examination revealed a fascinating discrepancy. All of Biasiotti's images show locks with multiple holes/columns, but "In each case the bolt has only a single pin of metal." Klemm wrote that "It would be strange indeed that all the pins deteriorated and only one pin in each lock survived. I think it's much more logical to conclude that in each of these cases only one pin was used." Another ancient lock from Palermo, he noted, included just two pins, but five holes where pins could potentially go.

Klemm suggested that, "Perhaps the most important reason" for using just one or two pins "was the structural weakness that would have resulted. Especially in smaller locks, five holes bored closely together would create very thin walls." But that seems unconvincing because the Roman locks described had extra holes drilled into them, they just weren't routinely utilized. Others have theorized that the rest of the pins may have been wooden and disintegrated thanks to time or fire, but Klemm correctly noted that "wooden pins would be no thicker than matchsticks and could be easily forced to their breaking point." To me, that hypothesis makes no sense, either.

Grits has a different theory as to why ancient locksmiths would only use one or two pins in early pin tumbler locks and it relates fundamentally to the nature of locks and our relationship to them. Locks are a mystery to most of us. We don't know how they work. One inserts a key, turns it, and the lock opens; turn it the other way, the lock engages. Most people today don't know any more about locks than that and it's a safe bet that purchasers of locks in ancient Roman times didn't either.

Back then, before the onset of mass production, each pin in a lock would have to be manufactured individually by hand, which must have been painstaking work. So using one pin instead of five would reduce the amount of labor spent making pins and springs by 80%. And as for the customer, who would know? If, once the lock were installed, it opened when a key was inserted and could not be opened without one (even if it's just one pin keeping the cylinder from turning), it would be all the same to them. And if some rare customer chose to take apart the lock, discover the missing pins, and knew enough about what they were looking at to complain, it would be simple enough to claim it was an error, pull a fully functional lock from behind the counter and appear to diligently correct the "mistake." It's not like there were consumer fraud protections on the books back then nor the sort of licensing strictures placed on locksmiths today. Anyway, odds are nobody ever noticed nor complained.

If Grits is right about why locks from Pompeii had just one pin, it speaks to the nature of locks and our relationship to them. For most of us, locks are a mystery. We know (or perhaps, assume) that they function but most of us have no clue how. Their outer housing conceals their inner workings and that opacity is part of their power. If one understands the inner workings, it's not that much more difficult to pick a lock with five pins instead of one. (Indeed, there's an entire "locksport" movement where amateurs pick locks competitively - go here and scroll down to see pictures from a locksport club at UT-Austin.)  But since most people don't have a clue how the lock functions at all, a single pin was sufficient in the vast majority of instances to provide security.

19th century Yale time lock inner workings (Source).
Even the most complex safe and vault locks ever produced can eventually be opened by someone who knows what they're doing. A wonderful book titled, "American Genius: Nineteenth century bank locks and time locks" demonstrated an almost unbelievable level of complexity and craftsmanship in 19th century safe and vault locks. But the authors conceded that "a conscientious thief could eventually open even state of the art locks" (p. 40) and that "no vault is wholly impervious to theft" (p. 22).

While some texts, like "Lock and Key: The secrets of locking things up, in, and out," speak of "the war between locksmiths and lockpicks," IMO that's not a completely accurate characterization because the act of lockpicking is not necessarily nefarious. An important job of a locksmith is to be able to open a lock when the key or combination has been lost. For example, when a homeowner loses their keys and is locked out of their house, a locksmith can get them in without breaking down the door. When granddad dies and it turns out he was the only one who knew the combination to the safe, somebody must be able to get inside. The same skillset is necessary for cops, repo services, realtors, and others (though often such occasional users will use a pick gun instead of learning to pick locks themselves). Indeed, with the advent of "locksport," lock picking is now a competitive hobby. As long as locks exist there will at times be a need - and for some, also a latent, compelling desire - to open them without key or combination. Not everyone who does so has criminal intent.

Grits' recent study of locks - particularly the most common, pin-tumbler type - has caused me to consider the possibility that their main function may frequently be more symbolic than a meaningful barrier to unwanted entry. The stronger and more elaborate the lock - like some of the astonishing bank vault locks that look like works of art forever hidden behind heavy metal doors - the more powerful the symbol. A locked door sends a message, "You are not supposed to go in here." As it turns out, many common locks can be picked or bypassed with relative ease. But even for those of us without such skills, a door could just as easily be kicked in, a side window may be broken: A determined person who wants in can generally get in. In practice, a lock at best slows them down, hopefully delaying a would-be intruder until other security measures kick in. But perhaps just as or more importantly, a lock functions as a symbol that says, "You don't belong in here." "Keep out." "The belongings inside are not yours." Amazingly, that alone is enough to stop most people, just like the one-pin locks in Pompeii were almost certainly adequate to ward off most intruders.

Locks function to a remarkable degree on that symbolic level, as a tangible token of the social contract. As a practical matter, there are many ways around them. Locks must sometimes be opened and their contents thus exposed in the normal course of human activity, giving ample opportunity in many cases to simply act while the lock is not engaged. Locks may be bypassed instead of picked, like a bike lock overcome by cutting the chain with bolt cutters. And of course, the most elaborate lock ever imagined may be easily opened by placing a gun to the head of the person with the key or combination.

Some years ago I heard a comedian - wish I could recall now who - suggest a novel solution to border security, recommending tongue-in-cheek that the government line the border with those plastic dividers you use on the grocery store conveyor belt to separate your food from the person in front of you. Those dividers, he pointed out, are universally respected. You never see anyone violate them. I'm coming more and more to think of locks and keys like the divider on the grocery-store conveyor belt. Even to the extent their function is symbolic, posing minimal barriers to a determined thief, it doesn't really matter. For the most part they're tremendously effective, probably preventing far more crime overall than does threat of punishment under the penal code.

Wednesday, June 26, 2013

State law encourages prostitution diversion programs, if grants are available

Good coverage from the CBS affiliate in Dallas of the new prostitution diversion initiatives mandated for larger Texas counties by the 83rd Lege - or at least it's mandated that they apply for a grant and mandatory that they implement the program if they get one. Here's a notable excerpt quoting a judge from Dallas Harris County, describing the model that the bill now aims to get other counties to emulate:
District Court Judge Maria T. Jackson has sentenced 20 women to the program, working closely with [nonprofit advocate Kathryn] Griffin to monitor their treatment.

“Society has not been addressing the problems of the prostitutes and the women who come in for possession of controlled substance and theft. They’ve been locking them up when they should be dealing with the other, the underlying issues, which are the majority of these girls come from abused homes,” Jackson said.

“They are the victims and they’ve been treated like criminals,” she added.

When they’re released, Griffin first takes the women shopping, “cause all they have is hooker clothes,” she said. Some go to drug rehab or a halfway house. Many require job training. And all must attend Griffin’s external workshop every Wednesday for at least 18 months.
Grits generally supports this project but dislikes this namby pamby non-funding mechanism. If it's worth mandating, ostensibly, it's worth budgeting for. Why leave it up to the Obama Administration or other grant makers whether to fund the Legislature's priorities?

Report: Texas among 'Comeback States' leading juvenile de-incarceration

Via email I learned that:
A bi-partisan report released last week, co-authored by the National Juvenile Justice Network and the Texas Public Policy Foundation’s Center for Effective Justice, found that the number of juveniles in confinement in the US has dropped dramatically - nearly 40% - since 2000, a time when we were facing a record-high number of kids behind bars.

The report, “Comeback States,” looked at the six key policies and practices responsible for this turnaround in nine states, including: the use of alternatives to incarceration, closing or downsizing youth confinement facilities, disallowing incarceration for minor offenses, and restructuring juvenile justice responsibilities and finances among the state and counties.

For more background, check out this analysis of the data by the Washington Post’s Wonk Blog and this nifty gif that lays out the key findings.

Tuesday, June 25, 2013

Stickland's warrants-for-cloud-content amendment continues to rack up media praise

Texas state Rep. Jon Stickland's amendment to HB 2268 requiring warrants for cloud-based email and other computer content held by third parties continues to get good press, recently garnering him rare, unreserved praise from a Texas daily, the Fort Worth Star Telegram, which on June 12 issued a staff editorial ("Texas freshman legislator set a standard on privacy law") which opened:
Darned if the new guy from Bedford didn’t accomplish something of national importance in privacy law during his first term as a state representative.

Republican Rep. Jonathan Stickland, 29, was elected last year in District 92 with strong conservative and Tea Party backing. Todd Smith had vacated the seat in an unsuccessful run for the Senate.

As is the way of life for legislative freshmen, Stickland was relegated by many senior members to “seen but not heard” status. Still, he vowed to compile the most conservative voting record of anyone in the House — and he might have achieved that distinction or something close to it.

But what might turn out to be Stickland’s most important first-term accomplishment is the amendment he successfully attached to House Bill 2268, which has been sent to Gov. Rick Perry. (Ed. note: The bill was signed and has become Texas law.)

The amendment set national precedent by requiring law enforcement officers to get a warrant for access to someone’s email or customer data stored by an electronic service provider.
Congrats again to Rep. Stickland, his staff, and everyone at TXEPC who worked on the bill. As I've told several reporters recently, this was a big accomplishment for a freshman. Here are some links to additional, recent coverage of Sticland's email bill. (See earlier coverage rounded up here, here, and here.)
Finally, a related update: Regular readers know that there's federal legislation moving to plug the same loophole in federal law that Stickland's amendment addressed in Texas' Code of Criminal Procedure. Here's a recent story on the House version of that federal legislation, which includes among its coauthors Texas Congressman Ted Poe.

Read more here:

Monday, June 24, 2013

On the merit of localizing national stories: Globe-News explores top Texas prison units for sexual victimization

The Amarillo-Globe News has a good story localizing issues raised in a national report  from the US Department of Justice on sexual victimization of prison inmates ("Inmate sexual assault: Clements unit among nation's worst, survey says," June 22), expanding on observations from this Grits post a couple of weeks ago. Reported the Globe-News' Mollie Bryant:
The current ranking shows an improvement over previous years. Clements’ rate of sexual victimization has declined since 2008, when it was ranked the second highest by the Bureau of Justice Statistics.

However, in the current survey, more inmates at Clements report being forced, coerced or pressured into sex or sexual contact with prison staff than any other male prison in the country.

According to the latest survey, staff sexual misconduct with inmates also decreased from the second highest in 2008 to the fifth highest, with 9.5 percent of offenders reporting sexual activity with staff.
While staff sexual misconduct at Clements is on the decline, 8.1 percent of inmates reported sexual victimization by staff involving force or threat of force, the highest rate of any prison or jail in the country, according to the survey. Clements inmates also reported the highest rate for inmates being coerced or pressured into sex among male prisons, at 8.7 percent.

The Texas Department of Criminal Justice and Office of the Inspector General investigates knowledge or allegations of staff sexual misconduct, said Ralph Bales, the Prison Rape Elimination Act ombudsman for TDCJ. Employees who violate TDCJ sexual abuse policies, federal or state law are subject to disciplinary penalties, including criminal prosecution, he said. Clements Unit staff receive sexual abuse prevention training, Bales said. ...

The TDCJ Safe Prisons Program screens offenders for possible vulnerability to sexual assault or aggressiveness, Bales said. Inmates take a sexual assault awareness course that includes methods to avoid victimization, and the program was expanded in 2010 to include the inpatient mental health population, he said. Almost half of the 3,557 inmates at the Clements Unit are on an inpatient or outpatient mental health caseload, Bales said.

Inmates held for violent sexual offenses and who are under psychological distress reported higher rates of sexual victimization by another inmate, according to the survey. Gay, lesbian or bisexual inmates are among those who are most at risk for sexual assault, the report said.

Understaffing, high employee turnover and the level of violence at a facility can contribute to its sexual assault rate, said Michele Deitch, jail conditions expert and professor at the University of Texas LBJ School of Public Affairs.

Higher rates can also be associated with facilities in rural locations, which can have reduced transparency, she said.
Excellent example of localizing a national story. I don't understand why more state and local reporters don't take this extra step to flesh out the state and local implications of national news, surveys, studies, etc.. Fulfilling that task when the MSM don't has become a staple of this blog's coverage over the years.

As Grits pointed out when the DOJ report was first released, there's a similar story to be written related to the Harris County Jail, which also ranked among the top sites for sexual victimization in the survey. The Globe-News has now explored the subject for Texas prisons (a story which will have wider reach since AP picked it up). But in Harris County the news provides statistical support for a problem which has sometimes raised its head anecdotally, providing a fuller picture of sexual misconduct problems at the jail. Last fall, half of dozen deputies and jailers were fired over sexual misconduct and these survey results suggest they weren't the only ones engaging in such behavior. In response to that episode, Sheriff Adrian Garcia installed additional cameras throughout the jail. (There has also been alleged staff victimization of inmates at the Harris County Juvenile Detention Center.) In the context of that recent history, localizing this national story for the Harris County Jail seems like a no-brainer.

The Globe-News has explored the story's implications in the context of the Texas prison system. Now it's either somebody at the Chronicle or some other Houston media outlet's turn to do the same for the Harris County jail. There was a time, back when there were a lot more paid, full-time journalists on the beat in Texas, when fleshing out the state and local implications of such national stories would happen nearly automatically. Now, it happens piecemeal, often weeks after the initial story, if it happens at all.

MORE: Below the jump, find a little more background on the situation at the Harris County Jail from the Sheriff's communications director and former Houston Chronicle reporter Alan Bernstein, received via email:

Sunday, June 23, 2013

Saturday, June 22, 2013

Woman arrested for asking to see non-existent warrant to arrest 11-year old

Fox34 in Lubbock reported last week (6/12) on an extraordinary case of a mother in Slaton who was allegedly arrested for asking to see an arrest warrant before she let police cart away her 11-year old son. It turned out, no warrant existed so they arrested her instead. Reporter Bailey Miller's story opened:
Slaton police came to this woman's house, who wishes to remain anonymous, to arrest her son. But by asking one simple question, she found herself behind bars instead.

"I told him, 'I will release my son to you upon viewing those orders.' Those were exactly my words," The complainant said. "He said, 'This is how you want to play?' He took two steps back, turned around to the officer and said, 'Take her.' They turned me around, handcuffed me, and took me in."
The complainant said she was aware police would be coming to apprehend her 11-year-old son based on a criminal complaint, and that she just wanted to see the warrant. As it turns out, that warrant didn't exist. She spent the night in jail while her son was left at home. 
Jonathon Turley adds:
What is most remarkable to this story is that the family’s lawyer told the media that the Slaton Police Department was only willing to apologize if the family waived any right to sue it for the unlawful and abusive arrest. That demand alone, if true, should result in the immediate termination of the police chief as well as the disciplining of any prosecutor who conveyed the demand in my view. Citizens should not have to trade away legal rights to receive an apology for allegedly abusive police conduct.
Quite a tale of tuff-guy decision making gone awry. The Slaton police department is small but has recently suffered a rocky history. An officer was convicted in 2010 of pocketing cash seized in the field as evidence. Another resigned in 2011 amidst a mysterious Homeland Security investigation in which the department's computers were seized. The same year, another Slaton officer was indicted by the feds on child pornography charges and sentenced to 70 months. Earlier this year they arrested a gunshot victim over traffic warrants. It's always something with that crew! This episode may end up costing the town more than an apology.

Ideology, interest and Texas probation reforms

Congrats to our friends at the Texas Public Policy Foundation (TPPF) on a glowing front-page Wall Street Journal article yesterday crediting them with Texas' 2007 de-incarceration reforms and authoring a national wave of mimicry by conservatives in other states. The article is behind their paywall but Doug Berman at Sentencing Law and Policy excerpted a substantial chunk. The article perhaps credits TPPF too sweepingly with prompting Texas' reforms - other organizations and Republican committee chairmen were already promoting probation reform before the group ever created its Center for Effective Justice. But their role in metastasizing the idea that small-government conservatism should also apply to corrections spending among the conservative movement and its network of state-level think tanks around the country cannot be overstated.

Berman suggests that the Right on Crime movement can't be successful unless it becomes something on which politicians can actively campaign in Republican primaries. I disagree. GOP pols don't have to campaign on these topics to enact them. Rather, the Right on Crime philosophy and backing from prominent conservatives provides an ideological basis for responding when they're attacked. It creates the political cover necessary to govern, the lack of which is one of the things that stifles all action in D.C..

What's often lost in ideological discussions about Texas' probation reforms is that, on the front-lines, Texas' was a reform effort prompted more by managers than movements, and more by the expense of incarceration than a distaste for it. Also, the push for probation reform began prior to the 78th session in 2003, more than two years before TPPF jumped into the criminal-justice fray.

In 2003, after years of comfortably lobbing Molotov cocktails from the back bench of the Legislature, Texas Republicans found themselves in firm control of all three branches of government and both chambers of the Lege for the first time since Reconstruction, just in time to confront a crippling budget crunch. Former House Corrections Committee Chairmen Ray Allen and Jerry Madden both tell the same story of then-Speaker Tom Craddick coming to them prior to their first session as chairs, issuing an eight-word demand that would change their lives: "Don't build new prisons. They cost too much." From a partisan political perspective, then, Texas' probation reforms were a Republican solution to the pragmatic demands of governance.

Meanwhile, especially in larger and mid-sized counties, probation directors around the state were paying attention to a growing body of evidence about the benefits of strengthening probation (or in Texas' parlance, "community supervision") but applying it for shorter stints, a field of research referred to by practitioners simply as "what works." And since probation directors work for judges, once those professionals began to think and talk about changing their own systems to align with evidence-based practices, quite a few long-time judges began championing reform based purely on self-interest and pragmatism. Perhaps the best-known example is Judge Michael McSpadden, a Republican jurist in Harris County who for the past few sessions has gotten most of his Harris County judicial colleagues from both parties to sign onto a letter asking the Legislature to take less-than-a-gram cases off their dockets by reducing the charge to a misdemeanor. But many judges over the years have supported reform and for the most part, their positions do not vary much according to party. In the case of specialty courts, in particular, dozens of local diversion efforts were launched with grant support from the Governor's office.

Finally, county commissioners courts of all stripes over the last decade struggled with jail overcrowding and/or the costs of massive, overbuilt jails that were constantly being launched. Today those pressures have mostly abated, but just a few years ago they were sometimes severe. Typically, jails are the largest line item in county budgets and their costs have driven local property tax increases across the state. Voters in Smith and Harris County rejected new jails and that seemed to free up county commissioners elsewhere to begin openly talking about alternatives to incarceration without seeming "soft on crime."

So Texas' now-famous probation reforms - which consisted primarily of substantial new funding for stronger community supervision, though far less than new prisons would have cost - represented a confluence of interests among state and local actors throughout the system all facing budget constraints. After leading reform efforts, both Chairmen Allen and Madden faced challengers in the following election cycle who tried to paint them as soft on crime. But both won re-election anyway, taking some of the steam out of the issue politically. Then the wave of national praise, copycats from other conservative states, and of course Rick Perry's presidential run caused Texas Republicans to own the reform agenda to a greater degree than ever before.

None of this is intended to diminish TPPF's role so much as to place it in context. They're doing important work but their role complements several institutional interests - particularly local courts, probation departments, and state and county budget writers - whose priorities for the most part drive the train whenever reform actually occurs. (The reduction in prosecutors' clout during this period also played a role.) For other states to replicate what happened in Texas - or for that matter, for Texas to travel further down the path to reform; after all we still by far have the largest prison population in the country - at least some of those institutional players must be on board.

There's a subtle interplay of ideology and interest underlying the achievements of criminal-justice reformers. And, as one of my long-ago college profs Peter Trubowitz first taught me, lasting public-policy reforms in general only happen when the two become aligned.

Thursday, June 20, 2013

Off to SA: Stuff to read while I'm gone

Grits is headed out soon to participate on a panel this afternoon at the national Investigative Reporters and Editors conference, which is being held this week in San Antonio. I'm looking forward to it: Mike Ward from the Austin Statesman, Jessica Pupovac from NPR, and Kirk Mitchell from the Denver Post are the other panelists for my session, which is focused on prisons and criminal justice coverage. And if the Spurs pull off the upset and win the NBA championship, it'll be a fun night to be in San Antonio. Probably picking with my heart and not my head but IMO the Spurs will bounce back, 98-94.

Otherwise, here are a few items that caught Grits attention but likely won't make it into their own posts:

Brooks County to feds: No pay, no prosecute
Thanks to a commenter for pointing out this McAllen Monitor story  which reported that Brooks County has been refusing drug cases from the Border Patrol checkpoint at Falfurrias since 2010. The local DA stopped taking the cases "because of a debt dispute with the Justice Department involving a long-running program that reimburses border-state prosecutors for the cost of pursuing some drug offenders." The funding cut has indeed been precipitous, reported the Monitor: "Getting money for the reimbursement program has been an annual fight. The funding reached $31 million in 2011 but fell to $10 million in 2012 combined with similar efforts along the northern border." Hudspeth County is considering following Brooks' lead.

Muppet struggles with jailed parent
Pretty cool that Sesame Street created a muppet with a parent in jail to try to address the specific struggles facing those kids. But with one in 28 American children with an incarcerated parent (source), perhaps they should include him in the show instead of only in an online tool kit.

'Odd wife out'
Simple Justice has a good post on the struggles facing families of the falsely convicted and the limitations of financial compensation for the harms done by imprisoning the innocent, focusing on the depressing case of Texas exoneree Steven Phillips and a suit for a portion of his innocence compensation by his ex-wife.

'Drone journalism'
And so it begins.

New Austin police contract
The Statesman reports ("Police to receive slight pay raises through 2017," June 19) that the new Austin police union contract features MUCH smaller raises than the massive pay hikes they've seen over the last decade, increases which made Austin cops among the highest paid in the country. Summarized Tony Plohetski:
'Prison Grievances,' the comic book?
TDCJ's board will decide on Friday whether to allow a handbook for filing inmate grievances produced in comic book format may be placed in Texas prison libraries. Reported the Austin Statesman's Ken Herman:
“Prison Grievances” is a “graphic novel,” meaning it’s kind of in comic-book format. It’s [Austinite Terri] LeClercq’s effort at translating legalese about the fine points of the inmate grievance filing system into fifth-grade-level language that convicts can understand.

And it’s a darned good effort, one that the Texas Board of Criminal Justice has banned from the prison law libraries.
The business agenda for criminal justice reform
The Texas Association of Business threw its hat in the ring this session on criminal justice topics for the first time. The Texas Tribune has a story on how their new agenda fared.

Lawsuit alleges S. Texas jail abuse
For symmetry, lets end as we started in South Texas: Live Oak County faces litigation over abuses at the jail alleged by two women, said the McAllen Monitor in a brief report. The Houston Chronicle's behind the paywall coverage quoted the lawsuit's allegations that Live Oak guards operated a "rape camp" at the facility.

Back maƱana. Till then, Go Spurs!

Wednesday, June 19, 2013

Drug war cash cow now a budget drain for Hudspeth County

Hudspeth County relies on the drug war as its main income source - not combating drugs smuggled from Mexico but mostly Americans caught with weed on I-10 at a Border Patrol checkpoint in Sierra Blanca. But now that the feds won't cover county jail costs, the drug war is busting their budget. Check out this excellent story from the Center for Investigative Reporting. Here are a few notable excerpts.
In recent years, the busy immigration inspection station has put a severe financial strain on the county and, in the process, revealed the tough monetary consequences of America’s massive expansion of border security and the government’s strategy for curbing the nation’s supply of drugs and illegal immigration.

Despite its remoteness, the Border Patrol’s Big Bend sector, where Sierra Blanca sits, has seen small-time drug busts skyrocket in recent years. An influx of agents tripled the local sector’s manpower, making the agency by far the biggest law enforcement presence around.

The Border Patrol checkpoint rarely catches drug mules making their way from Mexico or border crossers hidden in trunks. Illegal immigration apprehensions in the Big Bend sector historically have been among the lowest along the border.

The Sierra Blanca station essentially has become an immigration checkpoint in name only, as the bulked-up Border Patrol has ensnared mostly Americans there – thousands of them.

Even as the U.S. Border Patrol makes more small-time drug busts, the U.S. Justice Department is generally declining to prosecute these low-level cases. The federal government has largely walked away from paying local authorities to pick up the slack.

Roughly 8 out of 10 people busted in the sector between 2005 and 2011 were Americans caught at a checkpoint, according to data obtained by The Center for Investigative Reporting. A small fraction of those busts are referred to federal agencies for further investigation and possible prosecution. At the Sierra Blanca station, 88 percent of the seizures – mostly marijuana – were traffic stops for amounts below drug trafficking thresholds.
Remarkable story. Read the whole thing. Meanwhile, downstream, the New York Times reports that the Rio Grande Valley is the new "hotspot" for illegal immigration, though the number of apprehensions are less than a quarter of what they were at their height. See their story, framed in terms of the federal immigration bill debate.

Legislators blast prosecutor association for Twitter taunts

The Texas District and County Attorneys Association was called out in the House Criminal Jurisprudence Committee today for "demagoguery" on its Twitter feed by Rep. Matt Schafer, while Rep. Steve Toth called their lobbyist Shannon Edmonds "totally disingenuous" and "dishonest" for some of his Twitter comments accusing committee members of being sympathetic toward cop killers.

The episode reminded me of John Bradley's posts on the DA's user forum coming back to haunt him in the Senate Nominations Committee last session, except this essentially happened in real time, with Shannon tweeting from the back of the room and legislators calling him out for it on the dais.

Over the years I'm afraid Grits has become jaded. I've heard that sort of demagoguery so often from prosecutors' representatives at the Lege that it almost seems normal. But clearly most of the legislators on the dais hadn't been exposed to such attitudes.

They were debating SB 23 remaking sentences for capital offenses committed by juveniles to comply with the Supreme Court's ruling in Miller v. Alabama. The bill passed out of committee 7-2 in the same form it cleared the Senate but will likely be amended on the House floor.

UPDATE: Go here to watch the exchange, which begins with comments by Rep. Toth at the 43:50 mark. Rep. Schafer chimed in on the topic at the 53:10 mark, followed by Reps Carter and Canales.

MORE: See SA Express-News coverage of the hearing. The bill is scheduled for a House floor vote on Friday.

You have a right to remain silent, but only if you speak

Terrible split SCOTUS decision in Salinas v. Texas. From now on, simply remaining silent in the face of police questioning is not enough to invoke one's Fifth Amendment rights. Under this ruling, one has to specifically say that's what you're doing. So you still have a right to remain silent, theoretically, but only if you speak. See the opinion recap from SCOTUSBlog and past Grits coverage.

Tuesday, June 18, 2013

On celebrity, the NSA, and the hypocrisy of DOJ perjury prosecutions

Not a Texas-specific issue, but this has been bugging me: Can anyone justify why the US Justice Department (unsuccessfully) tried to prosecute "Rocket" Roger Clemens for perjury but somehow James Clapper, the director of national intelligence, not only hasn't been indicted for blatantly lying to Congress about the NSA phone spying program, the Obama Administration and senior US senators are publicly praising him?

At the time, Grits expressed dismay bordering on disgust that the DOJ would waste resources prosecuting athletes like Roger Clemens and Marion Jones over allegedly lying about steroid use while turning a blind eye to far more serious crimes. But that sordid spectacle appears even more embarrassing when compared to what's happening with Mr. Clapper. The basis of the Roger Clemens prosecution was the uncorroborated word of a shady informant and the government couldn't prove the charges in court. Clapper's perjury before Congress was both blatant and (thanks to revelations by Edward Snowden) entirely demonstrable.

The USDOJ's approach to those accused of lying to Congress smacks of shameless hypocrisy. They'll go after a celebrity for alleged perjury over trivia, then the Administration praises this mendacious NSA official for far more blatant, provable lies to Congress regarding much more serious subjects. My prediction is Mr. Clapper won't ever be prosecuted because he's in a position to reveal many more illicit activities about which the executive branch has probably also been lying.

Grits doesn't care if you're a Democrat or Republican, black, white, brown or green. This sort of calculated sophistry has denuded the Obama Administration of any remaining shred of credibility when it comes to defending, or even discussing, the Bill of Rights. And DOJ's failure to consistently pursue perjury prosecutions, declining to act when an Administration official lies but going after celebrities in a high-profile fashion, speaks to a smarmy unctuousness that's incredibly disingenuous. Just sickening.

Jail politics and the purported decline of 'apostrophe laws'

Here are a few tidbits which haven't made it into individual posts but may interest Grits readers:

Fort Worth jail costs skyrocket from incarcerating Class C misdemeanants
Here's an absolutely superb story from the Fort Worth Star-Telegram on a dispute between Fort Worth and Tarrant County over housing Class C traffic ticket violators. Tarrant won't do it so Fort Worth entered into a rather squirrelly contract with Mansfield for which they're massively overpaying to house Class C offenders. Unlike most jurisdictions, Fort Worth does not cut deals to reduce fines and sends people to jail until either they can pay or their jail credits cover the debt. Critics including the Tarrant County Sheriff say that amounts to operating a "debtor's prison."  Give it a read, there aren't too many reporters in the state with enough understanding of the system to pull off this story. Yamil Berard is one of them.

Jail health privatization
Navarro County is considering privatizing health care services at its county jail.

New jail suggestion rejected
Commissioners in Rockwall County rejected a study designed to prepare them for jail expansion.

Welcome to SA, prepare to be blamed
The Bexar County Jail just got a new jail administrator. That's a more political job these days in San Antonio than in most counties because of disputes between the Sheriff and Commissioners Court over staffing. He's got his work cut out for him.

Cite-and-summons process needs mechanism to improve court-appearance rate
Travis County's cite-and-summons program for low-level misdemeanors (authorized by the Lege in 2007 to ease jail overcrowding) has a high no-show rate, the Austin Statesman reported. IMO this is in part because no infrastructure is in place to remind people of court dates, etc., the way pretrial services does with defendants given personal bonds. The rate will never get to zero but with a little forethought and effort it could be dramatically lowered from where it is now. By contrast, Sheriff Gary Painter in Midland effusively praised the program and said they haven't seen similar problems.

Governor signs TX warrants for email bill
After Gov. Perry signed Texas' warrants for email bill it received some nice coverage from Ars Technica and I had breakfast this morning with Greg Nojeim from the Center for Democracy and Technology who said he expects similar federal legislation to pass the US Senate but fears for its prospects in the House of Representatives.

Montana requires warrants for cell-phone location data
Montana's governor has signed legislation requiring warrants for law enforcement to acquire cell-phone location data. Readers will recall the legislatures in Missouri and Maine passed similar legislation, but Montana's governor beat them to the punch in signing it, making them the first state to finally pass such a law. Go here for detailed information about the MT bill.

Public doesn't trust fed snooping
A new poll found that 57% of the public fears the NSA uber-database on phone records will be used for political purposes unrelated to national security. That's an unsurprising and perhaps even a realistic assessment. After all, the database isn't assisting terrorism investigations, which makes one wonder if it exists for some different, perhaps less noble purpose. Polling on the NSA phone spying scandal has been all over the map but given the Obama Administration's recent record regarding journalists' privileges and the use of the IRS to target political opponents, I can't say I blame the public for being skeptical.

Are 'apostrophe laws' really on the decline?
I'm not sure I believe this but USA Today reported that so-called "apostrophe laws" - typically enhancements named after dead children, driven by grieving parents - are receiving a cooler reception among state-level lawmakers this year. That may be because many are bad public policy or, as the article suggests, they may have just run out of low-hanging fruit. We still see a lot of this in Texas, though, I'm not sure the trend described has yet migrated across the Red River. And though the article focuses on penalty enhancements, in Texas the concept cuts both ways - the "Michael Morton Act," the creation of the "Timothy Cole Advisory Panel," and the Tulia legislation were all good examples of reform legislation passed in response to a particular injustice. Ideally government shouldn't make public policy based on individual anecdote, but that's the political reality we live in for good or ill.

Monday, June 17, 2013

Rick Perry, drones and an odd endorsement of the exclusionary rule

Regular readers are aware that Grits thought HB 912, known as Texas' "drone bill," contained too many practical flaws for me to support. But the bill did place significant restrictions on use of drones by law enforcement, which is far and away the most significant aspect of the legislation. So, when can law enforcement - or people under contract with or acting on the direction or authority of law enforcement - utilize drones under HB 912? Here are the circumstance under which Texas law enforcement can use aerial drones beginning September 1st.
  • Pursuant to a valid search warrant,
  • In immediate pursuit of a fugitive felon,
  • To document a felony crime scene,
  • To document crime scenes involving human fatalities, fatal motor vehicle accidents, and any motor vehicle accident on a state highway or federal interstate,
  • To search for a missing person,
  • When conducting a "high-risk tactical operation that poses a threat to human life,"
  • Surveying the scene of a catastrophe for purposes of determining whether an emergency should be declared,
  • To preserve public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency,
  • Within 25 miles of the Mexican border, and
  • With consent of the property owner.
The Department of Public Safety has been charged with developing administrative rules for use of drones by law enforcement based on the strictures in the bill.  Bizarrely, in an era when tuff-on-crime demagogues have spent decades eviscerating the exclusionary rule, the drone bill contains the most extreme version of one your correspondent has ever seen a legislative body endorse in my lifetime. Under the statute, video collected by law enforcement outside the above circumstances (or even drone video taken by civilians in violation of the statute):
(1) may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;
(2) is not subject to disclosure, inspection, or copying under the Public Information Act; and
(3) is not subject to discovery, subpoena, or other means of legal compulsion for its release.
Unless it falls under one of the listed exceptions (which admittedly are myriad), the only thing drone video can be used for in court will be to prove up Class C misdemeanor charges of improper drone use. That's true even if the video happened to capture images of a murder, rape or kidnapping.

Honestly, I thought that'd be a deal killer. It's flat out stunning that Gov. Rick Perry endorsed such a sweeping exclusionary rule when, in the past, he's threatened to veto legislation (e.g., Texas' eyewitness ID legislation from 2011) if the exclusionary rule was applied. One imagines this was a one-off and not an indicator the Governor has now embraced the exclusionary rule as a valid means to regulate illicit law enforcement behavior. We can hope, though.

Grits doesn't expect ever to see a single prosecution under the criminal portion of the drone statute, nor do I anticipate anyone will successfully sue over tort violations in the bill (the amounts are too small to make it worth an attorney's while). In the end, restrictions on police and exclusion of video evidence in the courts will be the biggest effect of this odd piece of legislation.

Sunday, June 16, 2013

Dallas County truancy courts doing vast volume, serve as cash cow, lawuit alleged

"Texas processes more truancy cases through its court systems than all other states combined," according to a complaint (pdf) filed last week with the US Justice Department alleging over- and misuse of Dallas County truancy courts. According to the lawsuit, "The very high volume of juvenile cases heard by municipal and justice courts in Texas has led some to refer to them as the 'shadow juvenile justice system.'" "The volume of juvenile cases filed in municipal and justice courts dwarfs that of the state's juvenile courts."

The numbers back that assertion up: In FY 2012, there were 113,369 total cases filed against Texas students for failure to attend school. Almost none (455 total) were handled through traditional juvenile courts: 76,878 were filed in municipal or justice courts - 15% of those through municipal courts and the rest through county justices of the peace. By contrast, 36,036 truancy cases were filed in four Dallas County truancy courts during the same year. That's an enormous number. Much larger Harris County saw just 12,723 truancy cases filed in FY 2012.

One element I hadn't understood is the extent to which truancy cases have been automated, at least in Big D. There are four school districts in Dallas County and in each of them, "Cases are 'e-filed' by schools with students' attendance records triggering a system that electronically 'pushes' cases to the courts once they have reached the designated filing date - leaving probable cause determination to a computer," the complaint alleges. What's more, alleged the complaint, "Children are routinely criminalized for behavior as innocuous as being tardy to class." And once a youngster has racked up a bunch of truancy tickets, "Youth may be jailed once they turn 17 if they have not paid their fines and costs in full."

Dallas County has full-time truancy courts funded entirely from fines and fees from defendants - in other words, they operate on an eat-what-you-kill basis that gives them an incentive to maximize truancy cases, or at least ensure their numbers don't decline so that revenues remain steady. That creates perverse incentives, alleged the lawsuit, and IMO it's hard to disagree.

For those interested in more details (and Grits found it a fascinating read), see the 59-page civil complaint (pdf) filed by Texas Appleseed , Disability Rights Texas and the National Center for Youth Law. This should be interesting litigation: Lots of important, long-neglected issues are being raised that one seldom sees publicly acknowledged, much less comprehensively vetted.

Via Think Progress.

Saturday, June 15, 2013

Governor signs junk-science habeas bill

Grits was particularly gratified to finally see Governor Perry has signed SB 344 by Whitmire/Turner ensuring access to the courts for habeas corpus writs based on junk science that's been debunked since the trial. This is a bill I worked on quite a bit on behalf of the Innocence Project of Texas, finally coming to  terms with Justin Wood from the Harris County DA's office over the exact language of the new statute. See a copy of written testimony your correspondent submitted on behalf of the IPOT in support of the legislation.

Before this bill, the Texas Court of Criminal Appeals had been all over the map on this question - granting relief in some cases on a narrow 5-4 vote, denying it in others. But three of the five judges who've sometimes supported relief in junk science cases - Cathy Cochran, Paul Womack and Tom Price - are all up for re-election next year and it's widely speculated all three will retire. That made passing SB 344 especially critical this session and it's a tremendous relief that it passed. There's no telling who might replace those three judges or how their replacements might have ruled on these cases.

Congrats to Chairmans John Whitmre and Sylvester Turner for getting this done. This was the 5th of six legislative recommendations authored by the Timothy Cole Advisory Panel on Wrongful Convictions.

Perry vetoes empower prosecutors, except for one Travis County drunk Democrat

Just a couple of criminal-justice related vetoes on Governor Rick Perry's 2013 list, but they were both significant.

Perry vetoes only de-incarceration bill of the session
This one was particularly a bummer. I do not understand why Gov. Perry picked HB 1790 to veto - out of all the criminal-justice bills sent to him Grits had considered it among the most innocuous, though it was the only piece of legislation passed by the 83rd Texas Legislature that would have even a minor de-incarceration impact. His stated reasoning for doing so makes little sense to me except through the lens of maximizing the prerogative of the executive branch. Here's the text of the accompanying veto message: "The intent of House Bill 1790 can already be achieved under current law. A mechanism already exists to prosecute a state jail felony as a Class A misdemeanor in circumstances where the prosecutor sees fit. Adding the option to reduce the conviction at the back end of a case will cause additional and unnecessary court procedures, reduce judicial efficiency, and add to the costs of our criminal justice system."

Certainly in some cases prosecutors can already choose to prosecute a state jail felony as a Class A misdemeanor through their front-end charging decisions. But the point of the bill was to provide incentives for succeeding on probation by offering a reduced charge on the back end as a carrot. In the version that passed the Legislature, prosecutors would still have veto power. But Perry's complaint appears to be that they're not the exclusive decisionmakers.

Perry's cost argument in the veto message is a total red herring. In FY 2012, some 23,449 revoked probationers entered TDCJ, or 31.5% of all new receives during that fiscal year. Lowering that number even a fraction would reduce incarceration costs on a magnitude that far outweighs the cost of an extra hearing, particularly one that only happens if probationers are successful! Bad, inexplicable veto.

This theme of maximizing prosecutorial power, it should be mentioned, was also exhibited in the addition of "mandatory life" for 17-year old capital offenders, making the sole purview of prosecutors power that, under the law as it stands, presently resides with juries when sentencing 17-year olds - i.e., the choice to consider sentences less than "life."

Travis DA Showdown: Perry follows through on win-win gambit
The other big criminal-justice news out of Rick Perry's veto announcement was the line-item veto of the Public Integrity Unit at the Travis County DA's Office, part of the governor's effort to strong-arm the current drunk DA in charge, Rosemary Lehmberg, to resign. Even Perry acknowledged the unit's "good work" but declared he couldn't justify funding it when the public had lost faith in its leader. (I wonder, btw, if there's been any recent polling on whether Travis County voters want Lehmberg out and a Perry-appointed replacement in: That'd be an interesting opinion survey.) The move was a win-win for Perry; Grits considered it a brilliant stroke from a chess-player's perspective. If Lehmberg had resigned, Perry would appoint her replacement - Terry Keel and John Bradley are the two names I've heard bandied about.

Since she called his bluff, OTOH, de-funding the Public Integrity Unit emasculates a prosecutorial division that's currently investigating some of Perry's Republican allies and programs and agencies run by his appointees. That has Democrats crying "foul" but that's insider baseball. The public doesn't react to such charges nearly as strongly as they do the images of Lehmberg kicking the cell door and shouting at jailers. Still, combined with the veto of two bipartisan ethics bills, including a requirement that 501(c)(4)s disclose "dark money" donors, it's not difficult to paint a portrait of the governor's veto decisions as self serving snubs to ethics enforcement. This may be a situation where history could judge that Perry overreached (for example, during any future presidential bid), despite achieving his goal of putting Lehmberg and Travis County Democrats in a short-term political squeeze.

The governor vetoed about $7.5 million allocated to the Travis DA's Public Integrity Unit over two years, according to news accounts. According to a report last fall (pdf) the DA has nearly one million dollars in her asset forfeiture account that could cover part of it. I suppose the Travis County Commissioners Court could pony up the rest, though that'd be a bitter pill to swallow. Or, since the question quickly becomes, "How much is the county willing to pay NOT to have a Republican DA," maybe somebody like Steve Mostyn or another partisan political donor could bail them out for a biennium. That's a lot of money but not so much that it's inconceivable some super-rich partisan might think it's worth it, given the stakes. Or, perhaps they could hit up the Obama Administration or some big foundation for an emergency grant to keep the PIU afloat for two years. ¿Quien sabe?

If readers can think of other possible scenarios for keeping the Public Integrity Unit open, please offer them up in the comments. And keep in mind: The question now isn't whether or not Lehmberg should resign but what should happen next? They've already lost their budget for two years, there's little else Perry can do to them aside from occasional (and well-earned) animadversions in the press. Those aren't going away until Rosemary Lehmberg leaves office. Until then, how might the Public Integrity Unit be funded for the next two years, or should the county let it die on the vine?

Friday, June 14, 2013

More litigation over heat in TX prisons now that 5th Circuit cleared way

More lawsuites vx. TDCJ related to heat-related deaths, just as summer begins to warm up. I couldn't go to the Texas Civil Rights Project (TCRP) press conference on Thursday so here's how the report from the Austin Statesman (June 13) opened:
Robert Allen Webb, a 50-year-old developmentally disabled man who suffered from a medical condition that made him susceptible to heatstroke, was supposed to be serving a short sentence in a Texas prison for drunken driving.

But in August 2011, as Texas baked in one of its worst heat waves ever, it became a death sentence inside an East Texas prison.

On Thursday, two wrongful-death lawsuits were filed in a Galveston federal court alleging that Webb and 12 other Texas convicts have died since 2007 — 10 alone in a six-week period of July and August 2011 — in un-air-conditioned prisons because of negligence of Texas prison officials.

In some prisons, lawyers said, indoor summer temperatures routinely reach 110 degrees. In one prison near Dallas, the temperature reportedly topped 149, lawyers in the case said.
Texas operates the nation’s largest prison system, with 111 lockups. But unlike other states that have air-conditioned prisons in recent years to curb health questions and lawsuits, most Texas prisons have air conditioning only in administrative and some treatment areas — not in the cell blocks.
See also coverage from the Texas Tribune. Last year the 5th Circuit Court of Appeals cleared the way for prisoners to sue in federal court over heat-related Eighth Amendment claims. One of the federal appellate judges likened conditions to sitting in an oven. Today, the weather is on the cool side for June, but things will heat up soon. If TCRP has their way, that will be true in the federal courthouse as well as inside Texas prison cells.

See a related column from Bob Ray Sanders at the Fort Worth Star-Telegram promoting the annual fan drive for indigent prisoners run by CURE, the Committee United for Rehabilitation of Errants. Good cause, give if you can.

Thursday, June 13, 2013

Time for comprehensive steroid testing at Arlington PD

It's been a while since this blog has focused on the topic of use of illegal steroids by police, mostly because those in power seem utterly uninterested in the topic compared to, say, steroid use by retired baseball players. But this blog's recent indifference doesn't mean the issue went away and it reared its head again this week in the Metroplex. Here's how the Star-Telegram coverage of the case ("Arlington officer accused of tipping off steroid dealer," June 13) opened:
A 17-year Arlington police veteran accessed law-enforcement-only databases to tip off a steroid dealer from whom he had been buying steroids for himself and other officers for years, according to federal documents released Wednesday.

Thomas S. Kantzos, 45, was arrested by the FBI on Tuesday, the same day that David Vo, another officer under investigation, died in an apparent suicide.

Kantzos, who had been federal custody, made an initial appearance in federal court in Dallas on Wednesday afternoon before U.S. Magistrate Paul D. Stickney.

He was ordered released on pretrial supervision with certain conditions. Wearing a black T-shirt and shorts, Kantzos was told that he must give up his weapons, law enforcement license and passport and refrain from taking drugs.

Kantzos is charged with unlawfully providing sensitive information by exceeding authorized access to a protected computer.

According to a federal affidavit, the investigation began in January after a man arrested for distributing anabolic steroids told authorities that he had sold steroids to Kantzos for five or six years.

The man, referred to in the affidavit as the “CW,” or cooperating witness, told investigators that on at least one occasion, he delivered about 20 human growth hormone kits to Kantzos while the officer was on duty, in uniform and in his patrol car.
Grits has long said I wouldn't mind if steroids were legalized and used responsibly by cops, firefighters, athletes, bodybuilders, you name it. Others will surely disagree, but at root I think adults should be able to take them if they know the risks. In part that's because of the harms from a black market and in part because a regulated market would make it easier to keep steroids out of the hands of young people, for whom the physical risks are more significant. But as long as the substances are banned, the act of securing steroids opens police up to corruption and mixed allegiances that may sometimes favor the criminal element, as alleged in this unhappy story.

Long-time readers will recall that Arlington PD has a history of de facto tolerance toward steroid users with arbitrators in 2007 reinstating an officer in a high-profile case that department brass wanted to fire for steroid use. Futher, as Grits reported in 2008, now-deceased steroid dealer David Jacobs claimed to have sold steroids to officers in five Metroplex police departments before he and his girlfriend died of gunshot wounds that year in an incident officially ruled a murder/suicide. Dallas PD implemented department-wide steroid testing after the incident, but the other four - Garland, Richardson, Arlington and Plano - did not. In other words, this episode is not a one-off. And Arlington PD has already tried doing nothing and hoping the issue will blow over.

Given that record, perhaps it's time for Arlington PD to begin immediate, comprehensive steroid testing of its police officers. These episodes keep cropping up over and over. Why not react more aggressively?

MORE: Eric Nicholson at the Dallas Observer's Unfair Park blog had an even more detailed post yesterday regarding this most recent incident involving Officer Thomas Kantzos:
A federal criminal complaint filed against Kantzos today provides a much clearer picture of the allegations.

According to court documents, Kantzos used his access to state and federal law enforcement databases to illegally run at least a half-dozen names and license plates for a suspected drug dealer. The first time this happened, in December 2011, the dealer discovered that the man with the laptop parked down the street was a member of a local drug task force and that someone had hidden a tracking device on his car.

But that just scratches the surface of Arlington PD's troubles. The drug dealer was arrested in January 2013 and became a cooperating witness. He told the FBI that Kantzos had been a customer for at least five years, regularly stocking up on steroids and human growth hormone. Once, he told agents, he had even delivered a shipment to Kantzos while the cop was in his squad car, in uniform and on duty.

But Kantzos wasn't the only one. Text messages (""oy from work wants a test and a dec....") and phone conversations revealed that a whole mess of Arlington cops were doing steroids. The dealer -- he's identified in court documents only as "CW," or cooperating witness -- had supplied several. At least two of the license plates checks were conducted by Kantzos' Arlington PD colleagues when he wasn't at work.

Following the his arrest, FBI agents built a criminal case by recording the dealer's texts and phone calls. During one conversation in April, Kantzos seemed concerned by the arrest of a couple of dealers who'd been selling steroids to his colleagues. He wanted to know if the dealer was connected at all to the arrestees and whether it would affect his supply.

"All our sources dried up," Kantzos explained, going on to promise that "You'll be back in business" and "I got like five guys that are fucking 'jonesin.'"

That was in April.
AND MORE: In response to the indictment, reported the Dallas News, Arlington police chief Will Johnson "announced an immediate expansion of the department’s random drug testing program to include all employees." Three questions immediately come to mind: 1) Dd the random testing not cover uniformed officers already? 2) Why not enact comprehensive testing - at least on a one-time basis - to clean house instead of waiting and hoping random testing will pick them up over time? Finally, 3) when will the other shoe(s) drop? From what's publicly known already, Kantzos allegedly supplied other officers, yet more officers still obtained steroids from other sources. Kantzos was busted not for steroid use per se but for doing favors for his dealer like license plate checks. And at least two other Arlington police officers did it, too. This is but the beginning of a sordid tale, not its denouement, if APD management has the stones to follow the evidence all the way to the end of the path. Given the scope of APD officer involvement, it might be better if an independent agency like the FBI or the Texas Rangers took on that task.

See prior related Grits posts: