TPPF in the news: Reducing technical revocations, clarifying recidivism data

A couple of recent Texas Public Policy Foundation reports got good press coverage this week:

• Texas Tribune: "Lawmakers urged to reform parole with technology"
• Report: Cutting Edge Corrections: Using technology to improve community supervision in Texas

and

• Texas Observer: "The conservative case against locking up minors"
• Report: Kids doing time for what's not a crime: The over-incarceration of status offenders

Good idea on reducing technical probation revocations
In the report on supervision tech, I particularly liked this suggestion for reducing incarceration based on technical violations of petty absconders:

Currently, there are more than 24,000 felony probation absconders in Texas. While they may succeed for a time in skirting their obligations to report to a probation officer when they are pulled over for a traffic violation or are otherwise apprehended, they will face the prospect of being revoked to prison. At least 35 percent of probationers revoked for technical violations (where there is no allegation of a new offense) were classified as absconders at the time. Based on the 12,287 total technical revocations in 2013, this amounts to at least 4,300 technical revocations associated with absconders, which translates into annual incarceration costs of $79 million, not counting the compounding effect over time as the revocation time served will exceed a year in most cases.

This analysis demonstrates the potential of utilizing GPS to reduce the number of technical revocations. Given that any type of GPS monitoring costs a fraction of the $50.49 per day prison cost,  it is a particularly sensible option for those who were placed on probation for a non-violent offense and have failed to report, but are not assessed as a high risk of re-offending. (Citations omitted.)

Recidivism clarification
In the comments to the Trib story, I offered one minor but important correction. The reporter had written that "Sixty-two percent of all Texas inmates return to prison within three years of their release. But that's not quite right.

Looking at the TPPF report, it says 62% of state jail inmates, not "all Texas inmates" are rearrested within three years, not "return to prison." State jail inmates have the highest recidivism rates of all prisoners, in part because they serve sentences day for day and leave without any post-incarceration supervision.

According to the Legislative Budget Board's latest report on the topic titled "Statewide Criminal Justice Recidivism and Revocation Rates" (pdf), the percentage of Texas prisoners who return to prison after three years was 22.6% for the most recent cohort - far lower than the national average. Among state jail inmates the number returning to prison is slightly higher - 31.1%.

The difference between rearrest and re-incarceration numbers is significant. After all, in Texas you can be arrested for a Class C misdemeanor, so many ex-offenders who are rearrested for minor offenses within three years of release do not actually return to prison.

UPDATE: The Tribune has updated its story to correct the error.

Travis County Jail recorded attorney-client phone calls, gave them to prosecutors

When the Travis County Jail installed video visitation technology and ceased the practice of in-person visitation, they promised that attorneys conversations wouldn't be recorded. Turned out, that's not always true. Reported the Austin Statesman ("Lawsuit: Travis County inmates' calls to defense lawyers were recorded, shared with prosecutors," April 29):

A group of Austin defense lawyers and prisoners is suing the top law enforcement agencies in Travis County, alleging the private Dallas firm hired to tape inmate visits at county jails is illegally capturing their conversations with attorneys and turning over the recordings to prosecutors.

The Austin Lawyers Guild, the Prison Justice League and several independent defense attorneys are seeking that a federal judge order authorities to stop the practice, which they call “unconstitutional eavesdropping and an invasion of attorney-client communication,” according to the lawsuit filed Tuesday in a U.S. district court in Austin. They say they also want the sheriff’s office and Securus Technology Inc. to destroy all the copies of such phone and jail calls already in existence, which could number in the thousands.

Named in the suit were the Sheriff, the vendor Securus Technologies, and the district and county attorneys offices.

Both parties claim visits between defendants and their legal counsel are secure, completely confidential and not recorded, as protected by attorney-client privilege, the lawsuit states. But prosecutors at both the district attorney’s office and the county attorney’s office have procured copies of the private conversations, some of which have been disclosed to defense lawyers among discovery materials, according to the court records.

Judges say the recordings are automatically deemed inadmissible as evidence in court, but the lawsuit alleges some prosecutors are using them to prepare their cases — sometimes to their tactical advantage without admitting they obtained or listened to them.

The Sheriff and DA say the recorded attorney client conversations were mistakes, the result of deputies failing to check the appropriate boxes on computerized forms. But those mechanisms are internal to the Sheriff and there's no mechanism for defense counsel to ascertain whether their conversations were recorded or shared with prosecutors unless the state later hands them over, by which time any strategic damage has been done. Said Austin Criminal Defense Lawyers Association president Bradley Hargis, “Basically, we just have to trust the sheriff and prosecutors not to listen to these calls but we have no way to verify they won’t.”

Similar allegations were lodged against Securus two years ago in Alaska. In Massachussetts, evidence from attorney-client phone calls recorded by Securus was suppressed in a 2006 criminal case. In 2008, NBC News reported that, "In the past two years, privileged conversations between inmates and lawyers have been recorded in Alameda, Santa Clara and Riverside counties in California, as well as Broward County, Fla.; Lansing, Mich.; and Dallas," as well as San Diego, CA.

Since all these were alleged accidents, according to Securus, which in each case promised to implement procedures to keep it from happening again, the assurances that this practice will definitively stop ring somewhat hollow. If nothing else, Travis County should begin providing attorneys with a comprehensive list of calls to and from their client that were monitored or recorded. "Trust us, we're the government" isn't a good enough response given that recorded attorney conversations have already turned up in prosecutors' files.

MORE: From the Courthouse News Service, and see earlier coverage from the Austin Monitor. Here's a copy of the complaint filed yesterday in federal court.

Estimating innocence among defendants sentenced to death row

Lots of press today about a new article from the Proceedings of the National Academy of Sciences titled "Rate of false conviction of criminal defendants sentenced to death." The study's abstract reads:

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

AP reports that, nationally, “From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. — 138 prisoners — were exonerated and released because of innocence.” This study attempts to extrapolate using statistical analysis how many other actually innocent defendants had their death sentence eliminated but were never formally exonerated, boosting the total to 4.1 percent. Noted AP, "The difficulty in identifying innocent inmates stems from the fact that more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment. Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row."

From what I know about rates of wrongful convictions, that doesn't sound unreasonable to me. I personally believe Texas has executed one or more innocent people over the last three decades, and numerous others have been exonerated after spending time on death row. Others, like Clarence Brandley and Kerry Max Cook, were freed from death row but never formerly exonerated. Indeed, it may be that high-profile death penalty cases have higher false conviction rates than others because of the intense pressure on prosecutors and judges to convict, though there are also plenty of false convictions in lesser cases. Either way, it's almost certain that false convictions in death penalty cases are more likely to be discovered after the fact because of the rigorous examination they receive during the habeas corpus process that almost never occurs for cases that end in a "mere" prison sentence.

That said, many death penalty abolitionists believe that these sorts of analyses may sway the public to oppose capital punishment, a position that simply isn't supported by the data. Among people who believe an innocent person has already been executed, a solid majority support capital punishment. Identifying people wrongfully sent to death row helps impress upon the public the import of rectifying flaws in the justice system that contribute to false convictions. But IMO, especially in Texas, it won't be any sort of silver bullet that convinces people to oppose the death penalty.

Judge: Driver Responsibility surcharge unfair, 'unconstitutional'

Another judge critical of Texas' Driver Responsibility surcharge, via a Lubbock TV station:

Lubbock County Justice of the Peace Jim Hansen is one of the many Texas judges working to get this law abolished.

"Because what a surcharge represents, it's double jeopardy and it's unconstitutional. You are being punished over and over and over again for the same one offense," Hansen said.

Surcharges are racked up based on convictions. Such as a DWI, or driving without valid insurance or a drivers license.

"This has created a whole new criminal class of citizens in Lubbock County," Hansen said. "I would estimate we've got about 15,000 people driving today with their drivers license suspended because of the surcharge program. And many, or most, of those don't even know that they're in this criminal class." ...

"Let me put it this way, I despise red light cameras, and I put surcharges in the same category. It's a money scam, in my opinion, even though it funds a worthy cause," Hansen said.

RELATED:
Radio discussion of Driver Responsibility surcharge
Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions

Catch 22 on civil commitment housing: 'Outpatient treatment' a cruel farce

There have recently been a spate of stories about housing for "civilly committed" sex offenders, people who've completed their sentences but been kept under supervision through civil proceedings, culminating in the resignation of the board chair at Texas' Office of Violent Sex Offender Management. But until yesterday's Houston Chronicle article ("For sex offenders who've completed their sentences, 'the only way out appears to be to die'," April 26), the focus of discussion had been on demonizing the agency for housing too many such offenders in a handful of neighborhoods. The real problem, though, is the failed, underlying policy which fails to acknowledge that a) these folks must live somewhere and b) public safety is poorly served by ostracizing ex-offenders instead of promoting reintegration. The article opened:

As criminals go, these few hundred men officially are labeled the worst of the worst, offenders whose past sexual crimes have branded them as such pariahs that the state has decided to keep them confined in jails and halfway houses and run-down boarding homes across Texas at taxpayer expense, even though they long ago completed their prison sentences.

They were the unknown, until a month ago when the little-known agency that supervises them - the Office of Violent Sex Offender Management - relocated more than two dozen into the Acres Homes neighborhood in north Houston, without any advance public notice, causing controversy and alarm.

A few days later, disclosure of the agency's plan to build a center in rural Liberty County to house perhaps more than 100 offenders there brought immediate local opposition.

But legal experts, former employees and legislators now suggest that the biggest controversy may involve the program itself: Why outpatient treatment supposedly intended to transition offenders out of confinement once they complete rehabilitation programs, never has.

Not one. Not in 15 years.

"The only way out appears to be to die," said Nicolas Hughes, a Harris County assistant public defender who has represented several offenders in the program. "That's not how it's supposed to work. In that regard, it's clearly not constitutional. These people are just being kept locked up."

Proponents of civil commitment programs for sex offenders insist it is legal, pointing to a string of court decisions upholding its strict rules.

While none of the civilly committed offenders ever have been discharged, Allison Taylor, the program's executive director, has said repeatedly that none of the offenders in the program ever have been charged with committing another sexually violent act. "That, to me, is success," she told the Houston Chronicle in 2012.

Taylor, who did not respond to calls for comment, recently has taken official leave, as has program manager Deborah Morgan. Their subordinates now are managing day-to-day operations.

Chairman John Whitmire of the Senate Criminal Justice Committee recently announced he'll hold hearings to evaluate the agency's housing policies, calling agency management "out of control" and questioning whether the program is "even needed anymore, considering that prison sentences for sexual predators have been increased in the past decade." Unless the committee can identify solutions, though, all the "oversight" in the world won't change the situation. It probably just needs to be scrapped.

As several critics said in the article, the whole "outpatient treatment" model for Texas' civil commitment  program is basically a farce. A former case manager for the agency "came to the conclusion that the rules were designed to send the offenders back to prison, not allow them to successfully complete their treatment." And though civilly committed offenders are supposed to be reevaluated every two years, a former attorney at the State Counsel for Offenders told the paper, "My concern is that the regulating agency is so biased against these guys they don't give them a fair evaluation." That seems to be what's really going on.

Honestly, I don't know why anyone would ever agree to serve on the agency's board. Nothing they do will prevent them from being scapegoated by politicians and/or neighborhood groups, even if they ensure every offender under their charge never commits another sex offense. Nobody wants these folks housed in their zip code, even individually, much less en masse. Yet, they've completed their prison sentences and must live somewhere. It's a classic Catch-22: There's no viable solution that can please the agency's critics. You couldn't pay me enough to do Allison Taylor's job.

MORE: Embattled agency chief retains attorney who thinks civil commitment program is unconstitutional. AND MORE: State may fire agency director.

Desist! Rethinking 'What Works'

A Texas probation department director sent me a note this week declaring:

When you get a chance you might want to check out this report from the UK Ministry of Justice (pdf) that recently reviewed the evidence in support of rehabilitative efforts that address criminogenic needs.  The reading is not pleasant.  About the only programs that address criminogenic needs that correlate to a reduction in recidivism are employment and cognitive programs.  It appears that "what works" isn’t working so well.  The problem is that if we keep doing the same thing over and over again, the reduction in recidivism will plateau and we will be expending more resources and getting diminishing results.

I am not suggesting that we abandon our treatment efforts but we need to implement a new strategy for reducing recidivism.  The Europeans for several years now have been looking at “desistance.”  Desistance examines the factors as to why some people eventually quit a life of crime and then try to implement strategies that encourage desistance in others.  ... So far desistance has not been getting much attention in the US, much less Texas.  Everyone wants to rely solely on a treatment model, even if the evidence in support of such of model isn’t all that great and the evidence for a desistance model is encouraging.

The line about "what works" refers to a set of correctional theories about community supervision centered around treatment and other relatively intensive rehabilitation programs. I'm looking forward to reading the linked report (pdf) and may have more to say on the subject of "desistance" after that, but thought I'd pass the resource along.

Anatomy of a false confession

At the Austin Chronicle, Jordan Smith has an excellent, extended story on an Austin case involving a husband who falsely confessed to murdering his wife, only to have DNA exculpate him. The whole article is well worth reading but here's a notable excerpt describing research about how and why false confessions occur:

The problem with false confessions, experts say, is that many people – even people within the criminal justice system – find it hard to comprehend that a person would actually admit to something that he didn't do. But it happens, and not rarely. According to the Innocence Project, 25% of wrongful convictions overturned by DNA evidence involve a false confession. And many of those confessions actually contain details that match the crime – details that were not in the public domain, says Saul Kassin, a social psychologist and expert in false confessions who is a professor at John Jay College of Criminal Justice in New York. The problem is that all of those details are already known to police, and through the process of interrogation those details can, and do, shape a person's confession, with police – purposely or inadvertently – divulging details of the crime.

Once a confession is made, it's incredibly powerful, say Kassin and others who study false confessions and the tactics that lead to them; jurors often consider a confession infallible evidence, he explains, even though research clearly demonstrates that is not always the case. Among the most vulnerable suspects are those actually innocent, Kassin points out – in many ways, innocence is their enemy. "When I ask innocent people, 'First of all, why didn't you lawyer up?' they tilt their head and look at me like I'm crazy ... and say, 'Well, I didn't need a lawyer, I didn't do anything wrong,'" he says. "They volunteer to take lie detector tests, they volunteer their keys, their shoes, their cars, and they just don't apprehend that there is any risk. And their explanation is as simple as, 'I didn't do anything wrong, I have nothing to do with it, I have nothing to fear, I have nothing to hide – in fact, the more they get to know me, the more they'll see that I didn't do it,'" he continues. "People believe in the transparency of their innocence."

The problem can be compounded by the fact that police generally believe they have a good sense for determining which of the people they encounter during an investigation should be elevated to suspect status. In fact, according to research done by both Kassin and by Iowa State University psychology professor Christian Meissner and others, police are actually no better at determining who is lying to them than are untrained laypeople. Indeed, some of the signs police are trained to believe indicate deception, and techniques they're taught to use in interrogations, may negatively impact their ability to determine lies from truth.

The dominant method of interrogation used in the U.S. is known as the Reid Technique, named after its originator, former Chicago cop John Reid. It's an adversarial and persuasive technique designed to yield compliance from suspects – police are taught to assess in a first interview whether a person should be considered a suspect and then, once that determination is made, to not allow the suspect any ability to deny their involvement in the crime. "It is an excellent ... psychological approach to getting confessions from criminals," Kassin says. "I think the problem begins with this. I always say this: If every person interrogated was the criminal, the Reid Technique would be perfect. The problem is [police] often bring innocent people into the interrogation room." (In fact, during one early use of the technique by Reid himself, a false confession was extracted from a man whose wife had been murdered; it took more than five decades for the man to be exonerated.)

Police have long been taught, for example, that nonverbal cues, like hair touching, leg bouncing, and shifting eye movements, indicate deception. The research says otherwise. "These things ... are in the folklore of police training," says Meissner, but "there is plenty of research to show that they're not reliable." Also problematic are techniques police are allowed to use inside the interrogation room – including techniques that "manipulate the perception of consequences," says Melissa Russano, a professor of criminal justice at Roger Williams Univer­si­ty. Specifically including lying to a person about evidence – saying that a fingerprint or DNA ties a person to a crime, when in fact no such evidence exists – or implying leniency, "stressing the importance of cooperation [with police] ... [suggesting] if you cooperate, things will be better for you and if you don't, things are going to get worse," Russano details.

Taken together, investigation detail leakage, faulty assumptions about who is lying, and heavy-handed, perception-altering interrogation tactics increase the likelihood of a false confession.

According to Russano, current research reflects that the heavy-handed tactics traditionally taught to police investigators are less effective and riskier than more information-based approaches, in which detectives use investigative interviewing and rapport-building techniques – open-ended questioning, timeline-building, and fact-checking. "Really, the science is showing that it's about how people tell their stories and how they remember events" that can reveal whether a person is lying, says Meisser. "It's about the cognitive properties of how they tell their stories that tend to be very important." This less adversarial approach is widely used elsewhere in the world, but U.S. police retain their decades-old reliance on the abrasive, unscientific, old-school approach.

Regardless of the technique, however, each confession should be tested for reliability by seeking corroborating evidence. And the very best form of corroboration, says Kassin, is when a suspect provides a detail or fact that police did not already know. "So, if he leads the police to the body, or to the murder weapon, or to whatever was stolen, that is gold-standard, corroborated evidence."

Of a half-dozen recommendations by the Timothy Cole Advisory Panel on Wrongful Convictions, the last one the Texas Legislature has not yet acted on is a requirement to record custodial police interrogations in serious cases. One hopes that this case and other examples of coercive interrogation techniques will spur the Legislature to rectify that oversight when the 84th session convenes in 2015.

R.I.P., Emmett Solomon

Emmett Solomon, a long-time TDCJ chaplain and founder of the Restorative Justice Ministries Network, a well-regarded clearinghouse and advocate for Texas prison ministries, passed away this week in Huntsville. He was a gentle soul, a good man, and will be missed. See the Huntsville Item for an extended obituary and details on Saturday's memorial service.

Debating drones: Texas EquuSearch case shows why bans were unwise, premature

Does it constitute "surveillance" to use drones to look for missing persons and/or the people who may have taken them? ¿Quien sabe?

The Houston Chronicle reported that "Texas EquuSearch filed suit Monday against the federal government to overturn the grounding of its fleet of aerial drones used to search for missing people." Regular readers know the Federal Aviation Administration won't come out with regulations for civilian drone use until 2015.

But the truth is EquuSearch's use of drones for this purpose by a private actor may also be banned under Texas law. HB 912 passed last session allowed law enforcement to use drones to search for missing persons, but it made no exception for nonprofits like this organization.

This is another example why Grits and many national experts considered Texas' "drone bill" banning video recording by unmanned aircraft to be misguided. Drones have a plethora of legitimate uses, many of which have yet to even be imagined yet. Blanket bans - whether by the Texas Legislature or the FAA - preempt many cool and useful things this technology can do before people can even try them. I agree with the FAA that Texas EquuSearch's drones are probably covered by the ban on civilian use until 2015, and even if they weren't their use would likely be prevented by Texas' HB 912, strictly interpreted. I don't agree, though, that banning them best serves the public and there are many other legitimate uses that should also be allowed.

MORE: See a letter (pdf) to the FAA from Texas EquuSearch arguing why the FAA ban on civilian drone use shouldn't apply to them.

CORRECTION: I was wrong about Texas' law. It allows someone under the direction of law enforcement to look for missing persons with drones so Texas EquuSearch could legally do so at the behest of law enforcement.

Video of MEDIAite/Koch criminal-justice forum online

Recently MEDIAite and the Charles Koch Foundation held a well-attended forum in Austin on the topic of "Rule of Law: How the criminal justice system impacts well-being." Speakers were Gary Bledsoe of the Texas NAACP, Marc Levin of the Texas Public Policy Foundation, Norman Reimer of the National Association of Criminal Defense Lawyers and former New York Police Department Commissioner Bernard Kerik. A video of the event is now online. You can watch it here.

More turnover at TJJD top spot

The Texas Juvenile Justice Department will soon have its third executive director in less than a month, according to the Texas Tribune. Mike Griffiths, who'd been there about 18 months, recently retired, and "Linda Brooke, the current interim executive director, is leaving TJJD for a job in Fort Worth." Now:

A special board meeting is scheduled for Thursday to consider and possibly approve David Riley as Brooke's replacement.

If confirmed, Riley, who is currently chief juvenile probation officer for Bexar County, would start on May 12.

Whoever is the next E.D. at the agency, I hope they're given time to right the boat. More than anything at this point TJJD needs competent, stable leadership. Over the past seven years they've had incredible turnover at that top spot, as well as in many of the key leadership positions in senior management.

If Mr. Riley gets the job I wish him luck; he's going to need it.

SEE ALSO: Another private prison deal implodes; notes from Senate oversight hearing on TJJD

Five Harris County jailers accused of contraband smuggling

More problems with guards smuggling contraband into the Harris County Jail. Reported James Pinkerton at the Houston Chronicle ("Firing of 5th jail guard raises alarm," April 23):

On Wednesday, Harris County Sheriff Adrian Garcia announced charges against [Branden] Paez, 20, of Spring, the fifth civilian jailer charged in recent months with bringing a variety of contraband into the Harris County jail system. Paez, charged with bringing contraband into a correctional facility, had been on the job 13 months when Garcia fired him in September.

The charges against Paez and the other four jailers raise questions about the screening process used by Garcia to hire the 1,300 full-time and part-time civilian jailers, who along with 165 deputies guard nearly 9,000 inmates in the county's jails. ...

In addition to Paez, The four Harris County civilian jailers recently arrested were:

• Lauren N. Sandefer, 25, charged April 14 with smuggling tobacco and vodka into the jail and allowing an inmate to use her cellphone.
• Dominique Duncan, 23, charged Feb. 12 with possession of controlled substance with intent to deliver prescription painkillers to inmates.
• Gertudis A. Reyes, 21, also charged in February with smuggling tobacco into the jail.
• Tamara Bundage, 26, of Brookshire, sentenced in March to 15 days in jail and probation for smuggling tobacco and two cellphones into the jail.

The arrests of county jailers are not the only recent embarrassing charges brought against Garcia's employees.

In March, a veteran deputy on a game room task force was fired, accused of stealing money he seized during a raid.

The deputies union blames the trend on low pay, with union president Robert Goerlitz declaring, "I hate to say it but we're kind of getting what we pay for." But low pay doesn't automatically equate to sub-par ethics. Perhaps bigger issues are failed employment screening and inadequate supervision. One does notice the corrupted jailers are mostly young folks - aged 20-26 - though the deputy on the game room task force who allegedly stole seized money was described as a "veteran."

Also, the sentences described were relatively light compared to some handed down to family members accused of conspiring to smuggle contraband into correctional facilities. But at least they were fired and not put on probationary status as sometimes happens with COs at Texas' adult prisons.

Radio news questions Perry PREA stance in light of consultant report

On Texas Public Radio, LBJ School instructor Michele Deitch and TDCJ guard union president Lance Lowry were interviewed yesterday on the subject of Gov. Rick Perry's declaration that Texas won't comply with new Prison Rape Elimination Act standards, honing in on contradictions between Perry's characterization of PREA requirements and the actual consultant's recommendations first discovered by this blog via open request.

They also discussed ongoing litigation over excessive heat in Texas prisons and today's House committee hearing on mental health and the justice system. Give it a listen.

See related Grits posts:

• Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'
• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act

Report: 'Deadly Heat in Texas Prisons'

A new report (pdf) titled "Deadly Heat in Texas Prison" from the Human Rights Clinic at the University of Texas School of Law argues that, "The Texas Department of Criminal Justice (TDCJ) is currently violating the human and constitutional rights of inmates in Texas by exposing them to dangerously high temperatures and extreme heat conditions." Citing recent court precedent, they argue that:

The United States Court of Appeals for the Fifth Circuit has recognized time and again that extreme heat in prisons can constitute a violation of inmates’ Eighth Amendment rights. In a 2012 case, a 63 year old Texas prisoner presented with a preexisting blood pressure condition, and was taking medication that would affect his body’s ability to regulate temperature. The court decided that a reasonable jury could conclude that a failure to provide air conditioning, among other things, to an individual with these conditions was a violation of the prisoner’s constitutional rights. Most recently, the Middle District of Louisiana issued a decision in 2013 condemning the extreme heat conditions in a Louisiana prison facility similar to those conditions present in TDCJ facilities as a violation of the Constitution. There is therefore clear and recent precedent for denouncing the hot conditions in TDCJ facilities as violating the guarantees and rights of inmates under the Eighth Amendment.

On page ten of the report there's a TDCJ temperature log from the Hutchins unit indicating that temperatures reached 114 degrees Fahrenheit and the "heat index" at mid-day reached as high as 149-150 degrees. According to the report, "almost half of TDCJ facilities are built with outer walls that are either partially or fully constructed from metal. Temperatures in these metal-constructed facilities are consistently higher than ambient temperatures or temperatures in concrete facilities. Inmates housed in these facilities have no way of escaping the heat, and are placed at risk of suffering heatstroke as a result."

The report recommends implementing standards similar to those promulgated by the Texas Commission on Jail Standards for county jails, where Sheriffs are required to keep jails below 85 degrees Fahrenheit, or nearly 30 degrees lower than the highest temperature documented at the Hutchins unit in the TDCJ log mentioned above. Those interested should read the whole report.

After the federal court ruling in a Louisiana case last year and the 5th Circuit's ruling that Texas can be sued on the topic, Grits expects TDCJ to ultimately lose the pending heat litigation and for the Legislature to eventually find itself forced to implement significant mitigation measures to reduce heat exposure of inmates and guards. It won't be popular but if the 5th Circuit rules like they did in Louisiana, they won't have a choice.

MORE: From the Houston Chronicle, the Austin Statesman and the Texas Tribune, as well as a column by HouChron columnist Lisa Falkenberg. AND MORE: From the Austin Chronicle, which points out TDCJ's ironic advice to employees on keeping pets safe in the heat while they're at work, noting that "The same level of care is not considered for Texas inmates."

Innocence lauded, justice delayed, violence declining, mercy contemplated

Here are a few odds and ends that haven't made it into individual Grits posts but deserve readers' attention:

Innocence Project of Texas in the news
My employers at the Innocence Project of Texas received some good press in the New York Times and Texas Monthly where Maurice Chammah had a piece (April 19) describing a suggestion "to have all of the state’s innocence clinics adopt a single, centralized intake system for letters, with a single process for identifying viable cases." Currently, the state's four law-school-based innocence clinics suffer from a great deal of redundancy as inmates may send the same request to each school and resources are wasted vetting the same cases with thousands of others stacked up behind them. The story also mentioned that IPTX has taken on the case of Emanuell Randolph, a Fort Bend County man who was convicted based on a dog-scent lineup conducted by then-Fort Bend Deputy Keith Pikett, whose methods have been criticized as junk science by the Texas Court of Criminal Appeals. (For details of the case, see this 2012 appellate ruling on a different issue.)

TX House committees to consider mental illness, substance abuse
Terri Langford at the Texas Tribune has a preview of a hearing today at the Texas Legislature addressing issues related to inmates with mental illness and substance abuse problems. Go here to watch it online beginning at 10 a.m..

Judge: Lack of conviction no reason not to imprison Jerry Hartfield
The Houston Chronicle reported Sunday on the strange case of Jerry Hartfield, a "57-year-old prison inmate who has spent more than three decades in prison without a lawful conviction on the books." Reported Mike Tolson:

State District Judge Craig Estlinbaum was not swayed, pointing out that for all the years Hartfield sat in prison without a valid judgment against him after his conviction was overturned, it wasn't until 2006 that he was moved to do something about it. That delay meant he pretty much forfeited his right to complain about it now, the judge said. That places the fault for years of incarceration with no valid conviction not on the judges or lawyers involved, but on an inmate with an IQ supposedly below 60.

"The responsibility placed upon the defendant or his counsel to assert the right is not a burdensome one - a motion for speedy trial or motion for trial setting need do little more than demand that a trial should be set and conducted," Estlinbaum ruled, rejecting a motion that if granted would have dismissed the charges against Hartfield.

Gov. Mark White commuted his original 1976 sentence from death to life, but the Court of Criminal Appeals overturned his original conviction because of errors in jury selection and ordered a new trial, which Matagorda County prosecutors never pursued. Wrote Tolson, "'There is one thing it should draw attention to,' [his lawyer] said. 'Guys who are not sentenced to death don't have lawyers appointed for them. Once the death sentence was removed, he didn't have anyone to represent him. They are left to raise these appeals on their own. And Mr. Hartfield, with an IQ below 60, couldn't really do that.'"

HPD failed to investigate numerous homicides
The Houston Chronicle reported over the weekend (April 19) on allegations that HPD Homicide Sgt. Ryan Chandler failed to investigate numerous homicides he was assigned and his supervisors failed to catch the problem for years. After he was transferred to another division in October, "files in 11 homicides assigned to him couldn't be located, that the Houston Police Department launched a full investigation." The department accused Chandler of:

failure to adequately investigate 15 deaths, misplacing files and evidence, and falsifying police records. [Chief Charles] McClelland fired Chandler this month.

Those and other serious shortcomings involving Chandler and seven other officers in the elite homicide division - all of whom received lesser punishments announced April 4 - were laid bare in disciplinary letters obtained last week by the Houston Chronicle through an opens records request.

Among the seven were two lieutenants who supervised Chandler and knew of his failure to testify and his incomplete investigations for more than a year without reporting him to higher-ups. Two other officers disciplined for poor performance were Chandler's partners, one of whom, alongside Chandler, failed to even go to a murder scene in the death of a 30-year-old Hispanic man.

Should judges be removed from indigent defense decisions?
That's the question posed in an article published on Sunday in the El Paso Times, citing an "American Bar Association recommendation from 2002 that encourages the legal community to keep judges out of the 'selection, funding and payment of defense counsel' to maintain the independence of the judiciary and prevent perceived or real conflicts of interest." El Paso (and most other counties) also does not follow the ABA principle that "resources should be equal for prosecutors and defense attorneys," the article noted.

Prisoner art as rehabilitation
The Texas Tribune has a story on an exhibit sponsored by the Texas Criminal Justice Coalition (for whom your correspondent has recently been performing some unrelated consulting work) and the City of Austin featuring art by women inmates. "The project aimed to draw focus to the more than 12,000 women currently in Texas prisons, said TCJC executive director Ana Yáñez-Correa. Art, she said, brings life to the mental health problems and the trauma that can lead women to make bad choices that result in prison time." Reported the Trib, "advocates for prisoner rights say they plan to ask lawmakers next year to put aside more money to provide inmates with better access to art supplies and more rehabilitative programs that include art therapy."

Domestic violence rates way down since mid-90s
Per capita rates of domestic violence - like crime rates generally - have been steadily dropping for 20 years, according to a new report from the federal Bureau of Justice Statistics. The rate of domestic violence fell 63% from 1994 to 2012, said the report, from 13.5 victimizations per 1,000 to 5.0. The rates of serious domestic violence also dropped, with intimate partner violence dropping far more than violence by immediate family members or other relatives. Even so, according to the feds, "Intimate partner violence (15%) accounted for a greater percentage of all violent victimizations, compared to violence committed by immediate family members (4%) or other relatives (2%). Well-known or casual acquaintances accounted for 32% of all violent victimizations, and strangers accounted for 38%." The Dallas News has been featuring an extended series on domestic violence cases in the DFW area.

Obama may embrace clemency for non-violent drug offenders
President Obama has one of the stingiest clemency records of any American president. But that may soon change, according to this Yahoo News article.

A senior administration official tells Yahoo News the president could grant clemency to "hundreds, perhaps thousands" of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn't been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.

The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve.  Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer.

Hidalgo Sheriff, associates plead guilty to money laundering, bribery related to drug trafficker

You know, the Sheriff's got his problems too.

He will surely take them out on you.

- Warren Zevon, Mohammed's Radio

Reported the Texas Tribune last week (April 17): "Former Hidalgo County Sheriff Guadalupe 'Lupe' Treviño, a nine-year veteran of the office and a fixture of the region’s Democratic Party, pleaded guilty on Monday to federal charges of money laundering. The U.S. Attorney’s Office for the Southern District of Texas said the former lawman 'received cash contributions for his election campaign from alleged drug trafficker Tomas 'El Gallo' Gonzalez.'”

Over the weekend (April 20), the McAllen Monitor followed up with a discussion of the implications of the Sheriff's plea for related civil litigation alleging that a former political opponent of the Sheriff is entitled to receive twice the amount of the alleged bribes from Treviño as compensation:

[On] Jan. 30, former candidate for sheriff Robert Caples sued then-Sheriff Lupe Treviño alleging that in the 2012 election, the incumbent received cash donations from Weslaco drug trafficker Tomas “El Gallo” Gonzalez.

Gonzalez gave the cash to sheriff’s Cmdr. Jose Padilla, who took it to Treviño, who then consulted with District Attorney Rene Guerra and deposited the money into his campaign bank account, from which the sheriff wrote a check to Gonzalez that was never cashed, according to the lawsuit.

The allegations in the lawsuit mirror the facts of a case in which Treviño pleaded guilty to the charge of money laundering this past Monday before U.S. District Judge Micaela Alvarez.

Three days before Treviño’s plea, his chief of staff, Maria Patricia Medina, went before Chief U.S. District Judge Ricardo Hinojosa and entered a similar plea to the charge of failing to report a felony. During the hearing she admitted to doctoring the campaign reports.

Most recently Padilla went before U.S. District Judge Randy Crane and pleaded guilty to the charge of bribery, admitting to having taken approximately $90,000 from Gonzalez in exchange for law enforcement information and protection.

“He admitted in federal court to the same facts that are listed in our lawsuit,” said Javier Peña, the attorney representing Caples. “If you look at the Election Code, not reporting the contributions is a violation and my client is entitled to twice the amount of the violation.”

So the Hidalgo County Sheriff, his campaign manager and a top commander in the office have all pled guilty to bribery or money laundering charges related to laundering campaign contributions from an alleged drug runner, doctoring campaign reports to cover up the transactions. What a friggin' mess!

Prosecutors see hot-check accounts declining as check writing becomes passé

County Attorneys' hot-check fund accounts have ebbed as “Check writing is becoming a thing of the past,” reported the Odessa American on Sunday, magnifying a trend the paper had first documented three years ago.

County attorneys have prosecuted hot-check issuers for more than 40 years in Texas, but fewer checks being written may spell the end of the hot check fund.

With the Ector County hot check fund sitting at about $44,000, down from a high of more than $250,000 five years ago, County Attorney Scott Layh said it won’t be long before the fund will not be sustainable.

Reduced use of written checks combined with the trend away from using hot-check prosecutions to subsidize payday lenders has caused these once-lucrative revenue sources to dwindle. It'd be interested to see county-by-county data on these accounts.

Crime lab delays, plea mill culture contribute to drug-war innocence cases

The Court of Criminal Appeals last week granted habeas corpus relief in yet another actual innocence case in which a man named Geary Wilkins from Harris County pled guilty to drug possession only to have a crime lab later find "that the substance Applicant possessed contained no controlled substances." In a report in Sunday's Austin Statesman ("Lab delays create Texas' unknown exonerees") Eric Dexheimer reported on finding 21 such cases in recent years, including Wilkins. In those cases:

After the 14 men and seven women were arrested and charged — typically with possessing a small amount of drugs, many mere dustings — samples of the confiscated substances were sent to public labs for conclusive identification. Before the results came back, however, the defendants pleaded guilty, usually within days, and began serving their jail or prison sentences.

Because of lab backups or delays, the test results declaring them innocent didn’t arrive until months or, in a handful of cases, years later. ...

Prosecutors say there are almost certainly more examples, although no one is keeping close count. (The University of Michigan Law School maintains a nationwide exoneree registry, but it is incomplete.) Though the false-positive drug cases date to 2005, their incidence has accelerated, with 14 of the wrongly convicted earning exonerations within the past two years.

Notably, "Thirteen of the cases identified by the newspaper were handled by the Houston Police Department’s crime lab," Dexheimer reported, while "Eight of the cases used forensic testing facilities operated by the state Department of Public Safety." Though labs are understaffed and wait times can be long - in some of these cases lab results didn't come back for two, four, or even six years, that's not the only driver of this phenomenon. Wrote Dexheimer:

Critics say it would be simplistic to lay the blame entirely on an overburdened forensic testing system. Defense lawyers complain that police share responsibility for making crimes out of inconsequential drug busts. More than half of the defendants identified by the newspaper were charged with possession of barely a gram — the size of a quarter of a teaspoon of sugar — or less of what were thought to be illegal drugs.

Some of these cases involved people arrested for trace amounts scraped from paraphernalia, and in one case a woman was arrested because police thought white crumbs on her face were cocaine. In some cases defendants thought they were guilty and in others, they plead out to avoid spending more time incarcerated, particularly in lower level state-jail cases. Defendants are under tremendous additional pressure to plead out when they're sitting in jail pretrial - particularly if labs may take months or years to come back with results. Wrote Dexheimer:

“If you can get out on a (personal recognizance) bond, then I recommend waiting until the lab results come back,” said his attorney, Ben Sullivant. “But if he’s in jail and can’t get out and it’s a matter of waiting months for the lab, a lot of people are going to want to get out.” ...

Pressure from lawyers on both sides can also push cases to a plea bargain before evidence is returned. More than 98 percent of felony drug possession cases settle before trial, according to the state’s Office of Court Administration, thanks to such deals. Without them, the court system would become swamped and grind to a halt.

Prosecutors have a legal incentive to move what appear to be open-and-shut cases along quickly. When a defendant is held in jail, state law requires that cases be presented to a grand jury for indictment within 90 days. Most prosecutors prefer not to do that without a lab report.

“We encourage people to plead by giving them pretty good deals on the front end,” said Montgomery County’s [Assistant District Attorney Phil] Grant.

Yet that encouragement can veer into coercion. In November 2011, Brunner, who’d left the district attorney’s office for private practice (he became a prosecutor again in 2012), wrote a letter to the Round Rock Leader noting what he today describes as the former DA’s “bullying” tactics.

“It is common practice that many of those felony plea bargains are given to defense counsel and their clients on a ‘one-day only’ basis — meaning take it today, or the deal gets worse,” he wrote. “And that ‘today’ is often the first day the attorney and client have ever been in court … with the veiled warning that if a deal is not speedily taken, the stakes for the client could get much worse.”

The result: “They are made to choose between a plea bargain right now, when I have not had a chance to fully evaluate their case, or suffer a worse bargain later, after I have had the chance to do my ethical best to collect all the evidence in the state’s hands.”

On the other side, defense attorneys — often harried public defenders catching small-time drug offenses — are tempted to accept the deals quickly. “Sometimes, the earlier offers are the best you’re going to get, so you grab it before it gets to the grand jury,” said Cynthia Cline, who negotiated Rosa Sade Bates’ guilty plea in Harris County, 10 months before her drug test came back negative.

There's a lot going on here. (In March we had a good discussion of many of these issues with Shannon Edmonds of the state prosecutors' association in the comments to this Grits post.) While much of the blame may be rightly placed on underfunded crime labs which can't process so many drug cases, and no doubt some of these defendants may have thought they possessed drugs, IMO the main culprit is the plea mill system through which low-level drug cases are processed. The system simply is not resourced - either the labs, indigent counsel, or the courts - to process the massive volume of drug war cases it's currently required to handle in a way that rigorously vets for innocence or protects defendants' rights.

The Dallas "sheetrock scandal" in 2001 was the most prominent Texas example of multiple defendants being convicted via plea deals even though the drug evidence was never tested and turned out to be fake. In that case, nearly two dozen defendants pled guilty faced with absurdly long sentences for possession of large amounts of cocaine that turned out to be fake drugs used by corrupt cops and paid confidential informants to intentionally set up innocent people. While Dexheimer found no overt police corruption in the 21 cases examined by the Statesman, the same pressures described above contributed to that high-profile fiasco.

There are a few potential legislative fixes that might help. For starters, as a number of Harris County judges have long advocated - these less-than-a-gram drug cases shouldn't be felonies, anyway. They clog up the courts and contribute little to public safety. But if they're going to be felonies, perhaps the Lege should require that plea deals not be finalized until lab results come back. Indeed, if lab results take longer than a couple of months on low-level drug cases, the courts should be required to release defendants on personal bond. The urgency to plea these cases out before all the evidence is in stems mainly from the fact that defendants are sitting in jail for months on end pretrial waiting for the evidence to wend its way through the crime lab backlog.

If the state's not going to adequately fund crime labs - and they've massively expanded crime lab capacity in recent years without getting a handle on the problem - then they need to look to relieve pressure on the system in other ways. These 21 cases are symptoms of a much more pernicious disease - drug war overreach. If Texas wants to prosecute the drug war at the levels we do today, it must pay for sufficient resources to handle the volume. At the moment, not just in these innocence cases but generally, the state's drug-war reach exceeds its grasp.

MORE: Dexheimer followed up on this story with a blog post on the Geary Wilkins case.

Ellis, Harrington: Reduce incarceration levels at Harris County Jail

State Sen. Rodney Ellis and Texas Civil Right Project chief James Harrington recently wrote a letter to the Harris County Budget and Management Office suggesting alternatives to incarceration to avoid continuous requests for variances from the Texas Commission on Jail Standards for extra jail beds, something the county has done eleven times since 2006. According to the letter:

Harris County's criminal justice system ... continues to use incarceration as its primary way of dealing with individuals with mental illness and low-level drug users. About a quarter of the inmates in the Harris County Jail are taking some kind of medication for mental illness. When looking at the six largest counties in Texas, Harris County leads in the annual number of people per capita it sends to state jail for low-level drug possession of less than one gram.

Spending taxpayer dollars to incarcerate non-violent offenders would make sense if it made our community safer, but studies show that these options are less effective and more expensive than strategies that divert defendants charged with non-violent crimes from incarceration.

Harrington and Ellis argue that the county should develop a written plan to eliminate extra jail beds and embrace alternatives to incarceration, including several specific examples. See the full letter for details.

See related, recent Grits coverage.

Radio discussion of Texas' Driver Responsibility surcharge

In the wake of Monday's public hearing on the topic, I was interviewed this afternoon on Texas Public Radio's KSTX out of San Antonio along with Ana Yañez Correa of the Texas Criminal Justice Coalition and John Hawkins from the Texas Hospital Association about Texas' Driver Responsibility surcharge. Go here to listen to the 21.5 minute segment which included several callers critical of the program, some of whom had personal experience struggling to pay or even understand the surcharges levied against them. For more background, see TCJC's website devoted to abolishing the program.

Consultant: TDCJ 'receptive' to prison rape recommendations, 'confident' proposed solutions were 'reasonable and viable'

The Texas Department of Criminal Justice (TDCJ) this week sent me the consultant's report regarding what would be required for Texas' adult prisons to comply with the Prison Rape Elimination Act, a document I requested under the open records act following Gov. Rick Perry's letter to US Attorney General Eric Holder announcing the state would not comply with PREA.

TDCJ brass were closely involved in the development of recommendations by The Moss Group, the consulting firm referenced in Perry's letter. According to the report, "top-level central and regional office executives and unit based senior management staff actively engaged in the analysis and remedy process along with the consultant team. Their daily participation and interaction with the consultant team is a testament to the value and importance they have placed on realizing compliance with this PREA standard."

Indeed, it appears the Governor's letter significantly overstated the scope and negative impact of the consultants' recommendations. Wrote Perry:

Because PREA standards prohibit most cross-gender viewing, TDCJ would be compelled to deny female officers job assignments and promotion opportunities, simply based on their gender. A consultant referred to TDCJ by the PREA Resource Center absurdly suggested that TDCJ solve this problem by removing security cameras and obstructing line of sight. That is ridiculous. Doing so would not only be a security risk for both prisoners and staff but also increase the likelihood of assaults taking place, defeating the intent of the law.

As it turns out, that was an exaggeration. The recommendations would by no means "prohibit most cross-gender viewing." In fact, the limitations suggested were remarkably modest and narrow.

As far as "removing security cameras," there were two references. They suggested that cameras shouldn't be "pointed directly into the dormitory bathrooms allowing remote cross gender viewing of inmates," noting that "it is not a mainstream practice to have cameras pointed directly into toilet and shower areas." If it's true that's "not a mainstream practice" and other correctional facilities across the country operate without aiming cameras at the bathrooms, why can't TDCJ?

Similarly, regarding "obstructing line of sight," the consultants suggested that "privacy mesh screens could be used to obscure the inmates' buttocks and genital areas during strip searches while still affording staff appropriate views of the inmates for security purposes." In documents that TDCJ (inexplicably) did not include in their response to my request, "The process of identifying the precise spots on the floor or ground that could be marked where inmates could stand to be outside of camera or other view was laid out." The goal was to "moderate or curtail" cross-gender viewing, not to ban it.

The other mention of obstructed viewing involved work areas and housing pods "where inmates could be viewed showering or using the toilet facilities," but the consultant said those "were less of a challenge. The team found that many of the areas currently open to cross-gender viewing could be easily mitigated with half shower doors and privacy panels that would not impede security viewing of the offenders."

The report did not suggest eliminating female CO positions nor that women officers couldn't staff men's prisons, nor would the recommendations forbid viewing inmates in showers and restrooms for security purposes. They recommended slight modifications in how pat down searches were conducted but didn't say women couldn't do them. And they recommended that female "escort staff" move out of the line of sight when strip searches were being performed. But if they're not performing the strip searches, anyway, such a restriction hardly means TDCJ would be "compelled to deny female officers job assignments and promotion opportunities, simply based on their gender."

Overall, the consultant found that TDCJ for the most part complies with the law already and did not have far to go to meet PREA standards. "Prior to the onsite work, TMG Consultant Jeff Shorba conducted a review of TDCJ policies related to cross gender viewing and searches. He found the policies to be comprehensive and well written and needing only very minor refinement. It is clear that TDCJ has expended enormous effort in the timely address of PREA requirements." That and the fact that TDCJ's general counsel seemed unaware of the governor's concerns makes one wonder about the defiant tone in Gov. Perry's letter.

Indeed, nobody at TDCJ seemed to have told the consultant their concerns were "absurd." Instead, "The department and unit staff appeared receptive to the recommendations offered and seemed confident that the solutions proposed were reasonable and viable." It's difficult to understand how Texas got from there to Gov. Perry calling the recommendations "absurd," "ridiculous," "ill-conceived," and "inconsistent" with federal laws.

I was only sent this six-page memo, but it appears there should have been more documentation that was responsive to my open records request. I sent TDCJ a followup email yesterday declaring:

I'd also asked for any correspondence to and from the consultant. Is it the case that no one at TDCJ had any email exchanges with the consultant before or after this report was issued? That seems unlikely. If there was such correspondence, please find it and forward it, including any attachments.

In addition, according to the report, "At the end of each unit analysis, a comprehensive, facility-specific closeout detailing findings, conclusions and recommendations was conducted." However, those facility-specific recommendations were not included in your response. Could you please locate them and forward them? That information to me seems as though it should be responsive to my March 28 request.  

If I get more details in response, obviously I'll post them at a future date. The whole episode strikes me as peculiar. You'd think if TDCJ found the consultant's recommendations untenable, somebody would have mentioned it to The Moss Group before the governor issued his letter.

MORE: Via the Texas Prisons blog from the president of the TDCJ guards union, Lance Lowry, who called Perry's claim of potential gender discrimination because of PREA compliance "nonsense."

See prior, related Grits posts:

• Who is advising Rick Perry on prison rape?
• Perry: Texas won't comply with federal Prison Rape Elimination Act

Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions

The Texas House Homeland Security and Public Safety Committee yesterday met to discuss suggested reforms to the misnamed "Driver Responsibility Program" (in addition to hearing invited testimony about the fertilizer plant explosion in West last year). See coverage of the hearing from the Houston Chronicle, the El Paso Times, and the Texas Tribune.

Your correspondent and numerous others have been trying to get the Legislature to reform or preferably abolish this program for years, but this may be the first time a legislative committee has fully embraced the idea that major revisions are necessary and the program may need to be scrapped. You can watch the hearing online here. The portion on the Driver Responsibility surcharge begins at the 2:21:45 mark.

Here's a link to written testimony I presented on behalf of the Texas Criminal Justice Coalition and a report on the topic (pdf) that the group published last year. TCJC has put up a website advocating abolition of the Driver Responsibility surcharge to provide background and gather stories from people who've experienced problems with this misbegotten policy. Check it out and, for those affected, add your story.

First up at the hearing were two representatives from DPS described a range of suggestions for reforms developed in a working group with their vendor and reps from the Travis County courts. Grits last year acquired their list of recommendations under open records. See it here (pdf). A few of their suggestions can be implemented administratively without legislative authorization and some of them will be included in new rules that will be presented in June to the Public Safety Commission and published in the Texas Register soon thereafter for public comment. Most of the significant changes, though, would require legislative action.

Even Bill Lewis of Mothers Against Drunk Driving spoke favorably about TCJC's written testimony (see his remarks at the 3:23:50 mark), which overall seemed well received by the members. He supports the surcharge because part of it pays for uncompensated care at trauma centers in Texas hospitals, which play a huge role in saving drunk driving victims. But he was open to subsidizing hospitals in other ways - e.g., potentially a small, additional dedicated tax on alcohol. He acknowledged that the surcharge has no deterrent effect on DWIs, in part because nobody knows about it (he called it "virtually a secret program"). Others testifying reiterated that most drivers know nothing about the program and many people pay tickets for no driver's license or no insurance without understanding they'll later face three years of surcharges. Lewis suggested that judges be given flexibility to reduce or waive surcharges in DWI cases.

One unintended consequence to the surcharge received more attention at yesterday's hearing than it has in the past, though the problem has been ongoing: Judges and prosecutors who consider the surcharges unjust have been allowing defendants charged with DWI to plead to lesser charges to avoid them. Rebekah Hibbs of DPS told the committee about a county that called them to ask if the charge of "obstruction of a roadway" carried a surcharge. She told them "no" and they replied that, in that case, they were going to begin pleading all their first offense DWIs to that charge to keep the surcharge from applying.

Retired Judge David Hodges (see his testimony @ 4:08:55), who now conducts training for judges on behalf of the Texas Association of Counties, told the committee that the surcharge law caused a 30% reduction in DWI convictions from 2003 to 2013, even though the number of arrests for DWI has increased. He said an officer from the Bryan-College Station area told him just last week that first-offense DWIs in his county were being charged as obstruction of a roadway for just that reason. Hodges suggested that, if the surcharge were eliminated, the state would likely see more additional fine and court cost revenue from DWI cases than it was gaining from the surcharge, suggesting that some of that money could be designated for trauma centers.

Hodges also suggested that reinstating deferred adjudication for DWIs might help the situation, since deferred cases don't formally result in a conviction and thus wouldn't incur a surcharge. Deferred adjudication was eliminated for DWIs a few years back in one of the Lege's reflexive spasms of tuff-on-crime demagoguery.

MADD's Bill Lewis offered particularly remarkable testimony regarding the surcharge-driven decline in DWI convictions, declaring that his group "agree[s] that DWI surcharges may actually hinder DWI prosecution." But, said Lewis, "when you get right back down to it, we've made the judgment that it's more important for the trauma centers to be there and to be well funded than it is to be disposing of DWI cases." Just think about that! The idea that MADD is willing to tolerate fewer successful prosecutions for DWI to keep trauma hospitals funded struck me as downright amazing. Obviously, he'd prefer those cases were successfully prosecuted, referring to the account of counties pleading the charges down as "horror stories." The surcharge has placed MADD in a Catch-22 situation, forcing them to choose between prosecuting drunk drivers and maintaining a robust trauma care system to deal with the aftermath of crashes caused by drunk driving.

But the star of the show was Williamson County Justice of the Peace Edna Staudt (@ 3:34:36 on the video), who launched an impassioned jeremiad against every aspect of the program. Of all the speakers, including those from the hospitals, she was the only one who refused to offer reform suggestions, insisting that the program was so badly broken that nothing but abolition would suffice. "This program creates more havoc and more mess than its worth," she told the committee. "It is an unjust system."

She told the committee that the income thresholds on the indigency and incentive programs were too low to help average, working people who still couldn't afford to pay their surcharges and needed driver's licenses to be able to work and feed their families. She also complained that the surcharge usurped judicial authority and was creating a "debtors prison" situation where people who couldn't pay would lose their licenses, then later be charged with a crime for not having a license and end up in jail. Suggestions by DPS to crack down even harder for nonpayment of surcharges, she said, would make the situation even worse.

The truth is, Judge Staudt is 100% right. TCJC offered suggestions to mitigate harms because the Lege has been unwilling to confront the issue head on. But even in our written testimony, we emphasized that, "The Texas Criminal Justice Coalition hesitates to suggest reforms that might make the Driver Responsibility surcharge sustainable, even temporarily, because the program is fundamentally unfair and suffers from deep, abiding flaws. The Legislature should eliminate it entirely and pay for trauma hospitals out of general fund revenue or some other source."

The only serious pushback against reform at this point comes from trauma hospitals that receive millions in funding from the surcharge. Their situation has become even more tenuous after the state refused to expand the Medicaid program under the federal Affordable Care Act, as they're losing millions because of reductions in Disproportionate Share Hospital funding that pays for uncompensated care. (The ACA reduced that funding on the grounds that Medicaid expansion would cover most of those uninsured patients.) So if the Legislature were to abolish this program, they'd need to find an alternative funding source to subsidize trauma hospitals. Chairman Picket likened the task to the scene from Raiders of the Lost Ark where Indiana Jones swapped a bag of sand for an idol, but said it needed to be done in such a way that did not result in a giant stone ball hurtling toward their backs.

Even the hospital reps, though, acknowledged that changes must be made to address unintended consequences facing drives, supporting a more robust Amnesty program and other reforms tinkering around the edges of the program. From my own, private conversations with the hospital folks, it's clear to me they wouldn't mind if the surcharge went away entirely so long as they continued to receive subsidies for uncompensated care. They just can't afford to lose the surcharge money at a time when federal subsidies for uncompensated care are being cut and the state seems unlikely to expand Medicaid anytime soon.

Grits was cautiously encouraged by the committee's reaction to yesterday's testimony. For perhaps the first time, this committee seems to have fully grasped the profound failings of the Driver Responsibility surcharge and appears to be forging a consensus that it must be either eliminated or subjected to radical reform. The main barrier to abolition will be finding money for the trauma hospitals, but that's not insurmountable. As I told the committee, the program is "a train wreck" and even its supporters can see it's not viable in its current form.

MORE (April 16): See an El Paso Times staff editorial advocating abolition of the program.They conclude, "Clearly, the Driver Responsibility Program is a failure. The Legislature should acknowledge that and repeal the law next year."

See prior, related Grits posts:

• Could Texas Driver Responsibility Surcharge become an election issue? Examining reform suggestions 
• DPS announces 'incentive program' rollout on driver surcharges
• Be thankful: Incentive program all the fix we're getting for now on surcharges
• Lege committee looking to tweak Driver Responsibility program; incentive program about to gear up
• Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge
• House rep promotes abolition of Driver Responsibility surcharge
• Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?
• Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?
• Few defendants getting surcharges waived by judges based on indigence
• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'

'Private defender' model suggested for Travis County

Travis County is considering big changes to the way it delivers indigent-defense services, taking most decisions out of the hands of judges and giving them to "a new office of Travis County Private Defender — an estimated $670,000 nonprofit under the control of the private defense bar," which "would assign lawyers to indigent cases, determine compensation for their work and derive a set of standards to evaluate their performance, the Austin Statesman reported Friday.

Travis County judges have already given up most authority to appoint attorneys - all of them use a "wheel" system that "has evolved into an electronic process under the Office of Court Administration, which takes applications from lawyers who wish to receive court-appointed referrals." Though "judges decide who stays on the list and what level of cases they are equipped to handle, an evaluation of now more than 250 attorneys that they say is cursory and happens only once a year."

As described the system aims to address the plea mill scenario created by high-volume legal representation:

There are no regular measures to review attorney caseloads, while judges have disparate methods for providing compensation and resources, and some decline to pay for more work, defense lawyers said. The result is a treadmill, on which lawyers are pushed to take quick plea agreements rather than taking more time on investigations or going to trial and on which defendants, many of whom are minorities, become trapped in the system, attorneys and legal officials said.

“I have had judges deny me the right to an investigator. I’ve had judges say, ‘Whatever you need,’” defense lawyer Jackie Wood said. “I would hope that one person or one office making the decisions would be better and more consistent than six or seven different personalities.”

That sounds good on its face, but in the end the question will come down to the amount of resources devoted by the county to indigent defense. A bureaucracy can deny funding for investigators as easily as a judge if the money isn't there.

Opposition to the idea, wrote reporter Jazmine Ulloa, comes from criminal defense lawyers afraid that "judges are simply looking for a way to trim attorneys who they believe are unqualified from the court-appointment wheel," complaining that "such cuts wouldn’t help those lawyers improve and would only lead to higher caseloads for others who remain on the list." That aspect of the change doesn't bother me, I must say, though I wish our elected judges would take care of the problem instead of outsourcing it to a nonprofit. However, I've worked my share of judicial elections and know judges are loathe to threaten the income of their most reliable source of campaign contributions. So I understand why it's difficult for them to manage that part of the process.

Even so, personally I'd prefer the county fund a full-blown public defender office to handle a significant chunk of its regular caseload, a model that has worked well in Dallas and Houston. From all I've heard, the parts of the Travis County system with public defenders (juvenile and mental health cases) work just fine. Why not expand the concept to handle more of the regular adult caseload?

The private defender model aims to fix only one aspect of the problem - appointment of unqualified attorneys - but cannot resolve two other issues that PDs are better suited to addressing: Resource allocation and providing an institutional counterweight to the District and County Attorneys Offices. Though PDs often get short-changed in the budgeting process, I feel like a formal division of government has a better shot at pushing for its fair share than a disparate group of private, self-interested attorneys running a couple hundred separate small businesses milking the government teat.

Which brings me to my second reason for favoring a public defender: On county-level policy issues, they provide an institutional presence that the private bar cannot muster. From pretrial detention policy to post-conviction SNAFUs like the Jonathan Salvador case, prosecutors tend to dominate local criminal-justice decision making. But counties with public defenders automatically have someone at the policy making table when important issues are discussed. And PDs provide a pool of expertise that becomes a resource for the entire criminal defense bar. The proposed private defender model - even if it's adequately funded - cannot meaningfully fulfill that institutional role.

Usually my (admittedly low) bar for whether to support a public policy change of this sort is whether the suggestion would be an improvement over the status quo. The suggested Travis County Private Defender probably meets that standard, but not by much. They'd be better off creating a full-blown public defender office to handle part of the adult caseload. It sounds like this process is pretty far down the road so I don't know if that can still happen, but it'd be my preference.