Even though Texas ostensibly outlawed the practice, Texas Appleseed has alleged "an ongoing trend of unlawful use of criminal charges by payday loan businesses to collect debts" in a complaint to Texas' Consumer Finance Protection Bureau. Lots of juicy detail there so rather than excerpt it, I'll just say those interested should read it themselves. Bottom line: Most counties seem to have stopped, some have clearly not (whether due to confusion, miscommunication or avarice - in general, prosecutors' hot check funds are dwindling), and there's insufficient data to track the issue in close detail.
See also coverage from Texas Public Radio, Huffington Post, the SA Current, and of course The Texas Observer, whose earlier reporting launched the most recent push toward payday lending reform. Also, I was happy to see the complaint referencing a report on the topic my wife helped prepare for Consumers Union 15 yeas ago. She poured a lot of herself into this issue back in the day, so she'll be glad to learn folks are still finding CU's work product useful.
Tuesday, December 30, 2014
Cell phones responsible for tiny fraction of distracted driving, traffic deaths
Just a quick data-backed reminder, as San Antonio prepares for that city's ban on cell-phone use while driving to take effect next month, that the near-hysteria over drivers using cell phones often overstates the dangers this common behavior poses, which perhaps explains why laws banning phone use while driving haven't significantly reduced accidents. Reported the SA Express-News (Dec. 20):
By contrast, few politicians want to talk about the much more significant cause of fatal accidents in Texas: Underinvestment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.
“Since many things distract drivers, cellphone use may be replacing distractions that drivers would engage in absent phones,” [Insurance Institute for Highway Safety Vice President Russ] Rader said. “So the overall level of distraction may not be going down, even though phone use is.”From all the "hang up and drive" hype, you'd think we'd be talking about more than 1.2 percent of fatal accidents. That figure seems low even to someone like me who's a skeptic of criminalizing common behaviors like cell-phone use. While every death is tragic, I'd have expected more fatalities than that to have been on the phone just as a matter of Bayesian probability since, from my own observation, at any given time more than 1.2 percent of drivers seem to be on the phone.
Crash statistics similarly show that for as much attention as cellphones get by policymakers and the media, they contribute to a small percentage of crashes.
There were 30,800 fatal crashes nationwide in 2012, a report this year from the National Highway Traffic Safety Administration states. Of those, 3,050 involved a distracted driver — 378 of whom were on cellphones, the federal data indicate.
That means cellphone use contributed to 1.2 percent of fatal crashes nationwide in 2012.
Federal data from 2010 to 2012 demonstrate that crashes involving cellphones account for about 5 percent to 7 percent of crashes caused by distraction, which in turn make up only about 16 percent of all crashes.
By contrast, few politicians want to talk about the much more significant cause of fatal accidents in Texas: Underinvestment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.
Failure to hire sufficient, competent lab staff hindering Austin burglary clearance rates
For many years, every budget cycle the Austin Police Department has proposed sizable expansions of the number of patrol officers while failing to boost civilian crime-scene techs and lab capacity to solve the crimes - particularly home burglaries - that rank highest on the public's complaint list. Reported the Austin Statesman (Dec. 24):
It's also remarkable that, for some undefined period, APD apparently employed two people in its crime lab who were not competency tested and who fostered a perception that they "didn't have good quality control." Well then, when and why were those folks hired in the first place? How many cases did they work on? What problems triggered their dismissals? And why weren't they replaced with actually competent staff instead of letting backlogs pile up to unacceptable levels? In a lot of ways, the story raises more questions than it answers.
The Statesman story is right that crime lab backlogs are growing seemingly everywhere, overwhelmed by unprecedented demand. Even where funding has increased substantially, as at state crime labs, it still hasn't kept up with growth. Offhand, I can't think of a law enforcement agency in Texas that wouldn't benefit more from expanding forensic capacity than adding patrol officers.
Austin's new 10-1 council would do well to stop hiring ever-more patrol officers, at least for a budget cycle or two, to focus on bolstering crime labs, the 911 call center, and other civilian components of the police agency which the old council ignored in favor of paying for ever-more uniformed officers. If the city wants more police coverage, there are ways to do that without a budget increase.
Austin police solve fewer than 10 percent of the city’s residential burglaries, a little less than the national average of 12.7 percent, according to the federal government’s Bureau of Justice Statistics.The low clearance rate cited for burglaries investigated by APD is actually higher than they've reported in the past. Still, think of it: The lack of two examiners undermining the work of two dozen officers in the burglary unit and generating hundreds of backlogged cases. Regardless, for years APD administrators emphasized patrol officers over crime lab staffing in their annual budget requests. For want of a nail, the shoe was lost ...
The low number of cases “cleared” — by indicting suspects or recovering stolen property — has persisted despite 20 years of declining crime rates. Police departments across the country face backlogs of unprocessed evidence because of personnel shortages. As evidence rooms fill up, the time needed to analyze fingerprints and DNA keeps growing.
For the Austin Police Department, solving burglary cases comes down to manpower: It’s lab technicians, not detectives, who are in high demand.
Three-quarters of Austin’s more than 6,300 burglaries last year were of residences, according to police data. The department has a backlog of 1,500 fingerprints, said latent print supervisor Officer Dennis Degler.
“For the past few years, we’ve done with four examiners when we should have had six examiners,” Degler said. “We haven’t been granted any new positions, and we haven’t had any new positions in the past decade.”
Two employees were laid off because of a decision to pursue stricter standards and accreditation from an international organization, Degler said.
“We’re trying to get away from the stigma that our people were not competency-tested, that we didn’t have good quality control,” Degler said. “When you’re talking about depriving someone of their freedom through forensic evidence, credibility’s important.”
The 25 employees of the department’s recently established Burglary Unit have continued to collect more evidence than the examiners can efficiently process.
It's also remarkable that, for some undefined period, APD apparently employed two people in its crime lab who were not competency tested and who fostered a perception that they "didn't have good quality control." Well then, when and why were those folks hired in the first place? How many cases did they work on? What problems triggered their dismissals? And why weren't they replaced with actually competent staff instead of letting backlogs pile up to unacceptable levels? In a lot of ways, the story raises more questions than it answers.
The Statesman story is right that crime lab backlogs are growing seemingly everywhere, overwhelmed by unprecedented demand. Even where funding has increased substantially, as at state crime labs, it still hasn't kept up with growth. Offhand, I can't think of a law enforcement agency in Texas that wouldn't benefit more from expanding forensic capacity than adding patrol officers.
Austin's new 10-1 council would do well to stop hiring ever-more patrol officers, at least for a budget cycle or two, to focus on bolstering crime labs, the 911 call center, and other civilian components of the police agency which the old council ignored in favor of paying for ever-more uniformed officers. If the city wants more police coverage, there are ways to do that without a budget increase.
Sunday, December 28, 2014
John Wiley Price discovery measured in terabytes, and other stories
Here are a few items which failed to make it into independent posts over the holiday but deserve Grits readers' attention:
Violence, not jobs, driving current immigration trends
Traditionally undocumented immigrants entering Texas came because of jobs. Increasingly they're people fleeing violence, death and chaos. El Paso has witnessed an influx of refugees from the states of Michoacán and Guerrero because of extreme drug violence there, mirroring the causes of a mass influx of children from Central America earlier in the year.
Abbott may back bills to help ex-felons get jobs
Apparently incoming Gov. Greg Abbott supports scaling back occupational licensing restrictions to help more ex-felons get jobs, a measure backed by the Texas Public Policy Foundation and championed in the linked story by state Sen. John Whitmire. Given that, expect some movement on this in the coming session, though to what extent remains to be seen. "In Texas, where about a third of the jobs are licensed, that means fewer opportunities for those with a criminal past. Advocates of modifying the current licensing laws say the change could get thousands more Texans working and paying taxes and get many off welfare-assistance programs."
When the prosecutors' open file has 150 million pages
Though the figure seems unbelievable, in the John Wiley Price federal corruption case, according to the Dallas News, “Prosecutors reportedly have about 6.5 terabytes of digital information to turn over to the defense. That does not include audios, videos, photographs, tax documents or 'materials too bulky to scan,' a defense motion has said. The government has estimated that 2.5 terabytes of data will remain after 'processing and culling.'” According to the News, "That is roughly the equivalent of 150 million pages of material."
Turn out the lights: SAPD chief to leave, work for electric utility
San Antonio police chief William McManus is leaving after nearly nine years on the job to head security at the city's electric utility, reported the SA Express-News in an outgoing profile.
Novelty act?
Is the new client choice model of selecting indigent counsel in Comal County a bold new strategy or a novelty that distracts from larger issues of insufficient resources?
How to judge homicide clearance rates?
With a 65 percent clearance rate at Houston PD, "A [Houston] Chronicle review of homicide cases in Houston from 2009 through the first half of 2014 found at least 353 investigations that remain open. Stepping back through the years, the number soon tops 1,000." Parents of victims in unsolved cases insist more should be done; detectives insist when they've exhausted all leads, that's what there is to do. Broken out by race, clearance rates are highest for whites, lowest for Hispanics. The department got into trouble this year when it was revealed a detective wasn't investigating some cases assigned to him at all, so it's understandable the homicide clearance rate is a sensitive subject. In a city the size of Houston, it's unrealistic to expect 100 percent of murders to be solved. But lamentably, any outcome short of perfection will leave the department with some very emotional and unhappy detractors among families of victims in unsolved killings. Oddly, homicide rates have fallen nationally in recent years during a period in which murder rates have also radically declined. So, surprisingly, the data show little if any correlation between solving murders and reducing their number, to the extent that's any consolation.
Restorative justice in schools
School districts across the state, including several in Bexar County, are experimenting with restorative justice models for student discipline.
Perry pardon grinch at final Christmas as governor
Humbug! No Christmastime clemency from Rick Perry on his way out the door, so apparently these four piddling pardons from October will be his last as governor. Here's hoping Greg Abbott's team will make a New Year's resolution to embrace clemency with more vigor over the next four years rather than treating it as a symbolic Christmas ritual with little real practical effect.
Three stories from the darker side of Texas history
On my personal blog, recently I wrote about three murderous Texas land grabs - targeting Mexicans, Native Americans, and black folks - about which Grits was never taught in school. Were you? As fat as that 7th grade Texas history book was, you'd think they could have fit these stories in.
Violence, not jobs, driving current immigration trends
Traditionally undocumented immigrants entering Texas came because of jobs. Increasingly they're people fleeing violence, death and chaos. El Paso has witnessed an influx of refugees from the states of Michoacán and Guerrero because of extreme drug violence there, mirroring the causes of a mass influx of children from Central America earlier in the year.
Abbott may back bills to help ex-felons get jobs
Apparently incoming Gov. Greg Abbott supports scaling back occupational licensing restrictions to help more ex-felons get jobs, a measure backed by the Texas Public Policy Foundation and championed in the linked story by state Sen. John Whitmire. Given that, expect some movement on this in the coming session, though to what extent remains to be seen. "In Texas, where about a third of the jobs are licensed, that means fewer opportunities for those with a criminal past. Advocates of modifying the current licensing laws say the change could get thousands more Texans working and paying taxes and get many off welfare-assistance programs."
When the prosecutors' open file has 150 million pages
Though the figure seems unbelievable, in the John Wiley Price federal corruption case, according to the Dallas News, “Prosecutors reportedly have about 6.5 terabytes of digital information to turn over to the defense. That does not include audios, videos, photographs, tax documents or 'materials too bulky to scan,' a defense motion has said. The government has estimated that 2.5 terabytes of data will remain after 'processing and culling.'” According to the News, "That is roughly the equivalent of 150 million pages of material."
Turn out the lights: SAPD chief to leave, work for electric utility
San Antonio police chief William McManus is leaving after nearly nine years on the job to head security at the city's electric utility, reported the SA Express-News in an outgoing profile.
Novelty act?
Is the new client choice model of selecting indigent counsel in Comal County a bold new strategy or a novelty that distracts from larger issues of insufficient resources?
How to judge homicide clearance rates?
With a 65 percent clearance rate at Houston PD, "A [Houston] Chronicle review of homicide cases in Houston from 2009 through the first half of 2014 found at least 353 investigations that remain open. Stepping back through the years, the number soon tops 1,000." Parents of victims in unsolved cases insist more should be done; detectives insist when they've exhausted all leads, that's what there is to do. Broken out by race, clearance rates are highest for whites, lowest for Hispanics. The department got into trouble this year when it was revealed a detective wasn't investigating some cases assigned to him at all, so it's understandable the homicide clearance rate is a sensitive subject. In a city the size of Houston, it's unrealistic to expect 100 percent of murders to be solved. But lamentably, any outcome short of perfection will leave the department with some very emotional and unhappy detractors among families of victims in unsolved killings. Oddly, homicide rates have fallen nationally in recent years during a period in which murder rates have also radically declined. So, surprisingly, the data show little if any correlation between solving murders and reducing their number, to the extent that's any consolation.
Restorative justice in schools
School districts across the state, including several in Bexar County, are experimenting with restorative justice models for student discipline.
Perry pardon grinch at final Christmas as governor
Humbug! No Christmastime clemency from Rick Perry on his way out the door, so apparently these four piddling pardons from October will be his last as governor. Here's hoping Greg Abbott's team will make a New Year's resolution to embrace clemency with more vigor over the next four years rather than treating it as a symbolic Christmas ritual with little real practical effect.
Three stories from the darker side of Texas history
On my personal blog, recently I wrote about three murderous Texas land grabs - targeting Mexicans, Native Americans, and black folks - about which Grits was never taught in school. Were you? As fat as that 7th grade Texas history book was, you'd think they could have fit these stories in.
Will new Bexar DA back post-conviction innocence reviews?
A profile of outgoing Bexar County DA Susan Reed in the SA Express-News (Dec. 27) mentioned, while recounting her "missteps" sandwiched between mostly positive reviews, that "Her refusal to appoint a special prosecutor to review claims that Ruben
Cantu was wrongly executed in 1993 after an eyewitness reportedly
recanted. The decision raised eyebrows because Reed, as a judge, had
denied one of Cantu’s appeals and set his execution date. A 19-month
investigation by her office found Cantu was not wrongly sent to the
death chamber." (See prior Grits coverage of that misbegotten DA's report.)
This recollection made me wonder: Will incoming DA Nico Lahood re-open that investigation, and more broadly, might he create a post-conviction review unit like Dallas' much-ballyhooed Conviction Integrity Unit to vet potential innocence claims? The new Tarrant DA has pledged to create one, and the new Dallas DA reportedly will continue efforts in this vein begun by her predecessor.
This recollection made me wonder: Will incoming DA Nico Lahood re-open that investigation, and more broadly, might he create a post-conviction review unit like Dallas' much-ballyhooed Conviction Integrity Unit to vet potential innocence claims? The new Tarrant DA has pledged to create one, and the new Dallas DA reportedly will continue efforts in this vein begun by her predecessor.
Saturday, December 27, 2014
Workmanlike judging may be an asset for Bert Richardson on Court of Criminal Appeals
Peggy Fikac has a nice profile in the SA Express-News (Dec. 25) of incoming Texas Court of Criminal Appeals Judge Bert Richardson, whom Grits had supported in the GOP primary due primarily to his knack for not being Barbara Walther. I got to know him a bit over the course of the campaign, though, like him a lot, and am hopeful about his prospects.
Fikac's story was prompted by Richardson presiding over Rick Perry's indictment, but given that in January he'll begin a six-year term on Texas' high criminal court, CCA watchers may be interested in the assessments offered of Richardson's background and judicial skills. Lately, since losing a judicial election in Bexar County in 2008, Richardson has worked "As a visiting judge whose territory includes multiple counties," wrote Fikac, "he has been handling everything from a regular prison docket in South Texas to high-profile murder cases." However:
'as being somebody who’s fair-minded. He’s very even-handed.'”
Richardson is "The son of an Air Force fighter pilot," wrote Fikac, who "graduated from Brigham Young University in Provo, Utah. He did his Mormon mission in Argentina (he’s fluent in Spanish). He considered entering the photography program at the Art Center College of Design in California. Instead, he returned to Texas for law school at St. Mary’s."
Judge Richardson "served as an assistant district attorney in Bexar County before a year in the U.S. attorney’s office," then "was appointed in 1999 to the newly created 379th Judicial District by then-Gov. George W. Bush to fill a vacancy and presided over high-profile cases. ... He was twice elected to the post, then lost the seat to a Democrat in 2008." Since then, "He ended up becoming a visiting judge and said in more than five years has presided over cases in more than 40 counties. He also teaches at St. Mary’s and is “of counsel” to a San Antonio law firm, LM Tatum."
Endearingly, Richardson "continues his photography, shooting the University Interscholastic League cross-country meet in Round Rock just days after the general election." Indeed, “Lance Phegley, editor of Texas Runner & Triathlete, called Richardson 'our ace of aces. He is one of those guys that -- he will do anything. He’s an awesome guy. He’s an incredible photographer on top of that. … If I send Bert to shoot something, I know he’s coming back with the best shots.'” That to me is as persuasive an endorsement as any attorney could give him. The guy showing up to photograph the UIL cross country meet in Round Rock knows how to check his ego at the door and get the job done, which is a quality sorely needed on Texas' personality-and-outcome driven high criminal court.
Even so, you can never predict with appellate judges at this level how somebody might do. There are skill sets involved at which no one can have practiced until they're on the dais in Austin. Certainly, they're not learned on the trial bench. The lawyering is perhaps the easy part; there are clerks for much of that. Good writing is important, though clearly not universally required. But the politics of obtaining five or more votes for opinions, much less uniting the court, is the true, secret art of appellate judging on which the media seldom focuses. There's an expressly political aspect to judging at this level - as evidenced by a formal vote on each case among nine judges - and navigating the politics is as much a part of the job as applying the law and writing opinions. You never can tell until somebody's on the court whether they'll have the ability to construct majorities or merely express their opinions, falling into line as part of an existing faction. Time will tell. Meanwhile, Richardson and the other two, new incoming judges have a steep learning curve ahead of them, as much on the backroom political side as the legal end.
Fikac's story was prompted by Richardson presiding over Rick Perry's indictment, but given that in January he'll begin a six-year term on Texas' high criminal court, CCA watchers may be interested in the assessments offered of Richardson's background and judicial skills. Lately, since losing a judicial election in Bexar County in 2008, Richardson has worked "As a visiting judge whose territory includes multiple counties," wrote Fikac, "he has been handling everything from a regular prison docket in South Texas to high-profile murder cases." However:
in his spare time, he works as a freelance photographer shooting sports for a running magazine and capturing moments around his San Antonio home, at the Texas Capitol or in the counties he visits in his day job.St. Mary's law prof Geary Reamy “said Richardson, whom he described as 'very humble and unassuming,' also 'seems unflappable.' He said Richardson is widely respected by people of 'various political and legal persuasions,' including Democrats, Republicans, prosecutors and defense lawyers
For Richardson, photography provides a focus on something outside the courtroom.
“They’re so completely different. That’s why I like it,” Richardson said, adding with a dash of wry humor that acknowledges the perils of covering sporting events, “I can just forget about what I do, and nobody knows who I am when I show up at my other job — and get bossed around by cops and pushed around by photographers, reporters and track officials.”
'as being somebody who’s fair-minded. He’s very even-handed.'”
Richardson is "The son of an Air Force fighter pilot," wrote Fikac, who "graduated from Brigham Young University in Provo, Utah. He did his Mormon mission in Argentina (he’s fluent in Spanish). He considered entering the photography program at the Art Center College of Design in California. Instead, he returned to Texas for law school at St. Mary’s."
Judge Richardson "served as an assistant district attorney in Bexar County before a year in the U.S. attorney’s office," then "was appointed in 1999 to the newly created 379th Judicial District by then-Gov. George W. Bush to fill a vacancy and presided over high-profile cases. ... He was twice elected to the post, then lost the seat to a Democrat in 2008." Since then, "He ended up becoming a visiting judge and said in more than five years has presided over cases in more than 40 counties. He also teaches at St. Mary’s and is “of counsel” to a San Antonio law firm, LM Tatum."
Endearingly, Richardson "continues his photography, shooting the University Interscholastic League cross-country meet in Round Rock just days after the general election." Indeed, “Lance Phegley, editor of Texas Runner & Triathlete, called Richardson 'our ace of aces. He is one of those guys that -- he will do anything. He’s an awesome guy. He’s an incredible photographer on top of that. … If I send Bert to shoot something, I know he’s coming back with the best shots.'” That to me is as persuasive an endorsement as any attorney could give him. The guy showing up to photograph the UIL cross country meet in Round Rock knows how to check his ego at the door and get the job done, which is a quality sorely needed on Texas' personality-and-outcome driven high criminal court.
Even so, you can never predict with appellate judges at this level how somebody might do. There are skill sets involved at which no one can have practiced until they're on the dais in Austin. Certainly, they're not learned on the trial bench. The lawyering is perhaps the easy part; there are clerks for much of that. Good writing is important, though clearly not universally required. But the politics of obtaining five or more votes for opinions, much less uniting the court, is the true, secret art of appellate judging on which the media seldom focuses. There's an expressly political aspect to judging at this level - as evidenced by a formal vote on each case among nine judges - and navigating the politics is as much a part of the job as applying the law and writing opinions. You never can tell until somebody's on the court whether they'll have the ability to construct majorities or merely express their opinions, falling into line as part of an existing faction. Time will tell. Meanwhile, Richardson and the other two, new incoming judges have a steep learning curve ahead of them, as much on the backroom political side as the legal end.
Friday, December 26, 2014
Recusals of civil-commitment judge call process into question
The lone Texas judge in charge of "civil commitment" of sex offenders has been removed from eight cases recently over prejudicial comments, probably with more to come, reported the Conroe Courier (Dec. 24).
The surprise here isn't so much that a judge holds these views but that he's thick enough to voice them repeatedly in public forums where eventually, inevitably, somebody stuck a video on YouTube. Talk about your unforced errors; that's pretty brazen!
The question becomes, if the only judge in the state hearing civil commitment cases can't be impartial and is routinely recused, how long is the situation sustainable where all those cases are funneled through his court? With the Legislature convening in a month, might they decide to upend the scenario, perhaps shifting civil commitment proceedings back to their county of origination instead of sending them all to JudgeRoy Bean Seiler over in Montgomery County, where apparently they'll be distributed among visiting judges for the foreseeable future?
The whole civil commitment program has been a hot mess from the get-go. But capped off with this news, in 2014 its disgrace reached new depths.
The recusal of a Montgomery County district court judge has been granted in at least eight civil commitment cases since September, according to records at the District Clerk’s office.
Judge Michael Seiler presides over the 435th state District Court — Texas’ only court responsible for handling civil commitment cases of sexually violent predators. Seiler was dismissed from six cases Dec. 11 by Senior Judge Ned Dean for either reasonably questionable impartiality or a personal bias against the subject matter or a party involved in the respective cases, records show.
There are more recusal motions pending, while those already granted call into question whether Seiler can objectively preside over the roughly 50 civil commitment cases heard in the court annually.At issue are a series of of speeches he gave to Tea Party and Republican groups in which he suggested eliminating jury trials for sex offenders and opined that castration would only work to deter sex offenders if it occurred at neck level. He adopted a campaign slogan dubbing himself "a prosecutor to judge the predators" in the GOP primary in Montgomery County, making no apologies for his one-sided approach to judging these cases.
The surprise here isn't so much that a judge holds these views but that he's thick enough to voice them repeatedly in public forums where eventually, inevitably, somebody stuck a video on YouTube. Talk about your unforced errors; that's pretty brazen!
The question becomes, if the only judge in the state hearing civil commitment cases can't be impartial and is routinely recused, how long is the situation sustainable where all those cases are funneled through his court? With the Legislature convening in a month, might they decide to upend the scenario, perhaps shifting civil commitment proceedings back to their county of origination instead of sending them all to Judge
The whole civil commitment program has been a hot mess from the get-go. But capped off with this news, in 2014 its disgrace reached new depths.
Deitch on juveniles tried as adults
See the LBJ School's Michele Deitch's TedX talk at Amherst College on juveniles being tried as adults, taking a national look at a process which in Texas recently became more rigorous in the wake of a recent Texas Court of Criminal Appeals ruling.
Wednesday, December 24, 2014
Journalists lack bias or agenda 'just as sure as there is a Santa Claus'
In a spirited defense of professional journalism this week in the San Antonio Express-News, Maria Anglin referenced the vintage Christmastime editorial classic, "Yes Virginia, there is a Santa Claus," and assured her readers that "just as sure as there is a Santa Claus, there are journalists reporting without bias or agenda."
I agree. Both those things - the existence of Santa Claus and journalists reporting sans bias or agenda - are equally likely!
Merry Christmas, folks.
See related Grits posts:
I agree. Both those things - the existence of Santa Claus and journalists reporting sans bias or agenda - are equally likely!
Merry Christmas, folks.
See related Grits posts:
Simpson on civil forfeiture: Where fences of presumed innocence and due process have been torn down, we should rebuild them
State Rep. David Simpson had a column in the Dallas News this week (Dec. 22) decrying civil asset forfeiture. His article concluded:
One law enforcement agent told me he never uses the criminal forfeiture process because the civil asset forfeiture process is much easier. You don’t have to convict the owner of a crime.
How can government do that, you ask? Well, to get around constitutional issues, lawmakers at both the state and federal level have created a dual system whereby the assets of an individual are named in a case, not the individual. Our state also has a low threshold to show that the property may have been used in illegal activity. Moreover, the owner of the seized property is presumed guilty until he or she can prove their innocence in obtaining the property legitimately. Many owners do not even try to recover their assets because the cost of obtaining legal representation may exceed the value of the confiscated property.
If government officials were omniscient and could never make mistakes, this would not be a problem. One official could be lawgiver, king and judge. Criminals could be stopped immediately and efficiently, and no innocent citizens would be punished.
But like citizens, government officials are not angels, so our constitution limits their power and separates it. It requires that they pursue justice justly, knowing that their power can, wittingly or unwittingly, treat innocent people like criminals.
Our constitutional restraints on government power are like fences; they keep the honest people honest. Where our fences of presumed innocence and due process have been torn down, we should rebuild them.
Michael Morton Act costs, and the costs of failing to disclose exculpatory evidence
Travis County officials are grumbling at the costs of implementing the Michael Morton Act. Reported the Austin Statesman (Dec. 23):
BTW, does anyone else find it odd that these prosecutor offices, which for years insisted Texas didn't need an open-file law because they already all had open-file policies, all of a sudden need extra staff to comply with a law they said was redundant with what they were already doing? Perhaps some of those titular open-file policies we were told about prior to the act's passage weren't quite as open as was portrayed.
The Michael Morton Act, named for a Williamson County man who spent 25 years behind bars for the murder of his wife before DNA evidence proved his innocence, requires prosecutors to produce all potentially exculpatory evidence before trial and to inventory and make copies of all evidence. It went into effect Jan. 1.On the flip side, in Houston we find an example of the costs of prosecutors failing to turn over everything in their files to the defense. Former Harris County DA candidate and Cold Justice reality TV star Kelly Siegler found herself on the dock defending her decisions about what evidence to give to defendant David Temple's counsel in a high-profile murder case. Reported the Houston Chronicle (Dec. 22):
In June, Lehmberg and Escamilla requested 17 new staffers to deal with the act, and the commissioners approved eight. But the backlog of cases that hadn’t been approved for compliance with the act continued to grow — it was 5,172 in mid-December — and the prosecutors’ offices a week ago asked for 12 more employees.
Biscoe said Tuesday he was “not happy” that the Legislature indicated that the act would have a minimal impact on county budgets.
“That’s just not the case,” he said. “The fiscal note (for the law) was faulty.”
Five of the six largest counties have added staff because of the act. Travis County has added the most.
Attorneys for Temple, including his lawyer at trial Dick DeGuerin, have long said Belinda Temple was killed by teenage neighbors who were interrupted during an after-school burglary. In motions filed after the case was re-opened, Deguerin and other lawyers have accused Siegler of withholding information about the teenaged neighbors.Clearly, had the Michael Morton Act been in place at the time of Temple's trial, this situation could have been avoided. Even if Temple is guilty, the expense and difficulty of retrying him should not be underestimated. But what if Temple is innocent and the alternative suspects really did it? Then, the tangible and intangible costs grow much higher. Siegler was operating under different rules when she prosecuted Temple and Judge Gist will decide whether she followed them. But the whole situation exemplifies the sort of problems the Michael Morton Act was intended to solve. Counties understandably grumble about another unfunded mandate, but opening up prosecutor files also prevents future costs by reducing errors and appeals. And it makes the adversarial system more robust and less one-sided. That's worth something, too, even if it doesn't show up on the accounting ledger.
During contentious questioning by attorney Casie Gotro, Siegler said she turned over evidence about several shotguns recovered in 2009, the teenage neighbor and his friends along with other information she decided was relevant.
However, she said determining whether evidence was Brady information often fell into a "gray area." She said she did not turn over evidence of every "rabbit trail" and "kooky lead."
One of those "kooky leads" was a neighbor's wife who called police to tell them her husband had killed Belinda Temple. Siegler said detectives investigated the story and decided it was not true and that she did not turn it over to the defense.
"When the defense is to just throw mud at the wall and see what sticks," Siegler said. "Brady is an impossible burden."
The former prosecutor also found herself hamstrung by the lack of detailed notes in her files about when she turned over the evidence or told DeGuerin.
"I don't remember," was a constant refrain during more than five hours of questions, which are expected to continue Tuesday.
The legal issues in the case include the claim that Temple's due process rights were violated by prosecutors withholding Brady information, an ineffective assistance of counsel claim against DeGuerin and that Temple is "actually innocent."
After hearing from more than a dozen expected witnesses including Siegler about the investigation and the prosecution, Gist will issue findings of fact and conclusions of law to be reviewed by Texas' highest court. That court would decide if Temple gets a new trial.
BTW, does anyone else find it odd that these prosecutor offices, which for years insisted Texas didn't need an open-file law because they already all had open-file policies, all of a sudden need extra staff to comply with a law they said was redundant with what they were already doing? Perhaps some of those titular open-file policies we were told about prior to the act's passage weren't quite as open as was portrayed.
Tuesday, December 23, 2014
TDCJ: Reporting change explains death-in-custody statistics
It wouldn't be the first time, but TDCJ spokesman Jason Clark says I was wrong in this post when I speculated that healthcare staffing cuts contributed to increased deaths in custody. Instead, he said, the agency began filing death-in-custody reports with the Attorney General for inpatient hospital deaths for the first time in 2013, tripling the number of death-in-custody reports to the AG from the previous year. Jason wrote in an email:
Here's the BJS report (pdf) he mentioned. Grits asked Jason what was the reason for the reporting change and for a breakout of "unattended" deaths for the last couple of years for an apples to apples comparison and I'll update this post if and when he responds. But I wanted to publish a correction/clarification ASAP before checking out for the holiday.I read your post correlating healthcare cuts to an increase in in custody deaths. This is not accurate. The TDCJ Office of the Inspector General completes a custodial death report form for each death in TDCJ, with the exception of executions, and sends the completed form to the Office of the Attorney General. Prior to 2013, the OIG only completed forms for unattended deaths (deaths that did not occur in an inpatient setting). Beginning in January 2013, they began completing the form for all deaths. This accounts for the apparent increase. As you can see below, the number of deaths while in custody has remained relatively consistent.2007 – 4362008 – 4692009 – 4242010 – 3822011 – 4182012 – 4632013 – 4432014 – 389 (through November)Note TDCJ reports all inmate deaths to the Bureau of Justice Statistics.
Chihuahuan prisons achieve ACA accreditation, end self-regulation by convicts
Read a feature story and editorial from Corrections Today on the transformation of prisons in the Mexican state of Chihuahua, which includes the city of Juarez across the river from El Paso and shares borders with Texas and New Mexico. Over the last four years, funded through US grants via the Merida Initiative, they've made the shift from "self-governed" facilities ruled internally by convicts to being accredited by the American Correctional Association, a task which took about three years to renovate all facilities and hire and train staff. Since then prison authorities have seized:
1,500 gallons of alcohol; 73 long guns; 32 explosive, fragmentation and blast grenades; 13,762 steel-edged weapons; and other prohibited items as of Oct. 1, 2014. These seizures were only the “tip of the iceberg,” because every single action also detected illegal acts inside the prisons, such as cockfights, musical performances and even horse racing. This reflected the unlimited power and control the criminal groups used to have inside the walls of [Chihuahan prisons], enough to even plan and order kidnappings, extortions and other crimes.The self-governing internal economy of Chihuahuan prisons was legendary so news of ACA accreditation, to me, is stunning. The professionalization of Mexican corrections, if sustained, would be a huge development, especially if other states replicate Chihuahua's model. Change can't come too soon.
Eyewitness ID lesson: 'Anything you try to change, there's going to be a backlash'
Scripps News Service posted a feature yesterday by Isaac Wolf titled, "Dallas leads the way in addressing wrongful convictions," crediting outgoing Dallas DA Craig Watkins and former police chief David Kunkle in particular for implementing science-based eyewitness identification standards before the Texas Legislature required departments to create such policies. The story concluded:
[Dallas police Lt. David] Pughes knew he would face belligerence when he walked into a training session in the spring of 2009. The officers were eager to defend their integrity and worried that his system would make it harder to get evidence.
As Pughes fired up his Powerpoint, Det. Steve L’Huillier interrupted from the front row. With nearly 30 years on the force, L’Huillier was insulted. “How dare you accuse us all of wrongdoing?” L’Huillier said. “If we had a few cases that resulted in wrongful convictions, that’s a tragedy.” Those were rare exceptions, he argued.
But police had no experience from an eyewitness perspective, Pughes told them. “Once you are able to sit in their chair, walk in their shoes for a minute, the officers came to the realization that picking someone out of a lineup is much more difficult than what you’d think on the outside looking in,” he said.
State lawmakers saw wisdom in the new system too and proposed witness identification reform across Texas. A vigorous lobbying campaign by the Houston Police Union opposed it and the bill failed. But a similar measure succeeded two years later.
A survey last year by the Police Executive Research Forum found that more than two-thirds of police departments in the U.S. still don’t take the most basic step to reduce errors in witness identification: requiring a person unfamiliar with the case to show the lineup. Brandon Garrett, a University of Virginia law professor and expert on wrongful convictions, has watched the opposition succeed time and again. “It’s kind of remarkable how long it takes to make changes that really help the police,” he said.
Kunkle retired in 2010, and this fall Watkins lost a contentious bid for reelection. But their work left an indelible mark, including on Dallas homicide detective Scott Sayers, who had opposed the ID changes. Sayers, who joined the force in 1995, was convinced that killers would get away with their crimes. “In the end, I think that was false,” Sayers says now, adding that the system also better protects officers from court challenges.
Which doesn’t mean the going will be any less contentious next time. “Anything you try to change,” he says, “there’s going to be backlash.”
Monday, December 22, 2014
Joe Shannon on 'doing justice'
From outgoing Tarrant County Criminal District Attorney Joe Shannon Jr.'s farewell message on the department's website:
Having practiced law for over 51 years, I have come to realize that “doing justice” is not just reading the law and applying it robotically. It entails having an understanding of human nature and shortcomings as well as empathy for other human beings. Some are in difficulty through ignorance, poor judgment or circumstance. Most of these will not commit future crimes. Others lack a moral compass and some are just plain mean. The difficult task of the prosecutor is to determine the difference. We have all tried to do this—hopefully we are right more than we are wrong.
Tim Cole honored most by reforming system that wrongfully convicted, killed him
An author of a book about Timothy Cole - who famously died in prison from an untreated asthma attack before he could be exonerated by DNA evidence - is seeking an honorary posthumous degree
for Cole from Texas Tech, where as a student he had for years been falsely demonized as the "Tech rapist." The school has so far demurred, "citing a lack of
achievement. But proponents say Cole accomplished more in death than
most people ever do in life," reported the Texas Tribune.
There's little doubt Tim Cole's story has become one of the pivotal narratives helping redefine public perceptions of the justice system in Texas, so I'd never begrudge any posthumous honor, statue, historical commemoration, etc., that anyone wants to bestow on him. However, a colleague of mine from the Innocence Project of Texas expressed a concern your correspondent simultaneously would echo.
There's little doubt Tim Cole's story has become one of the pivotal narratives helping redefine public perceptions of the justice system in Texas, so I'd never begrudge any posthumous honor, statue, historical commemoration, etc., that anyone wants to bestow on him. However, a colleague of mine from the Innocence Project of Texas expressed a concern your correspondent simultaneously would echo.
Some people associated with Cole’s case feel that the efforts on his behalf would be better spent on addressing criminal justice reform.“I’m always worried that the more Tim Cole becomes a memorialized symbol, the less people will think about what we really need to do to fix the system in Texas,” said Jeff Blackburn, the founder of the Innocence Project of Texas and the lawyer who secured Cole’s exoneration.While he had no objection to honoring Cole with a degree, Blackburn said, “it does make me think about how much energy people are willing to put into something that’s past and how little energy they’re willing to put into the scary stuff, which is changing the system going forward.”
That's exactly right. Honoring Cole's memory is important but it's no substitute for changing the system so that what happened to him will be less likely to happen to others.
If the state wants to further honor Timothy Cole, arguably the best way would be to approve the innocence commission bill named after him that would review the justice system with an eye toward proposing changes to the law to further reduce the likelihood of convicting innocent people. (The bill passed the House in 2013 but died in the Senate.) Or, the Lege could pass Rodney Ellis' and Terry Canales' bill requiring police to record interrogations in serious cases, the last, unfulfilled recommendation from the now-disbanded Timothy Cole Advisory Panel on Wrongful Convictions (which was a poor man's substitute for a full-blown innocence commission).
If Tech doesn't want to go the honorary degree route, maybe they could figure out how to endow a chair in Cole's name at the law school to hire someone to study and teach about wrongful convictions and how to prevent them. I'd be glad to see Cole further honored, but even happier if such tributes contributed to improving the justice system.
The case for grand jury abolition
Jim Harrington from the Texas Civil Rights Project authored a column in the SA Express-News arguing for abolition of grand juries in Texas, a suggestion your correspondent also recently proposed. The article opened thusly:
In a related story, the Houston Chronicle reported Dec. 19 that "Hispanic representation on Harris County grand juries far below population." The paper found that not only were Hispanics and Asians underrepresented but people from law enforcement fields were overrepresented. "The Chronicle found that 58 percent of grand juries had at least one person with law enforcement or legal experience. Almost a third of grand juries had two people meeting that criteria."
The United States has had to discard anachronistic institutions throughout its history, and it is now time to bury another — the grand jury. Most other countries based on English common law long ago jettisoned this unworkable relic of the past. And only about half of the states in the nation still use grand juries.See also similar arguments made in Slate (Dec. 9) regarding why grand juries should be abolished. Others argue for keeping them but requiring greater transparency. (If we're going to keep them, personally I think recordings or transcripts should become public records once the grand jury's term ends.)
The Ferguson and Staten Island grand juries that recently cleared police in the killings of Michael Brown and Eric Garner, respectively, underline starkly how perverted the grand jury system has become. There is no way to reform the system; all cries to reform it are “pie in the sky” and inherently doomed. Grand jury reform is impossible. Abolishment is the only viable alternative if we want a more just system.
The grand jury originally had two functions. One was to shield people against the arbitrary government power. The other was where individual citizens brought criminal cases they wished to prosecute against someone else, and the grand jury would give the go ahead or not. This was before the institutional development of district attorneys and prosecutors in our criminal justice system.
In modern times, the grand jury has become an irrepressible tool of the district attorney. With the exception of a few blips here and there, prosecutors manipulate and bend the grand jury to their will. After all, the prosecutor tells the grand jurors what needs to be done “in the interest of justice” and presents and tailors the evidence and witnesses accordingly — all in a secret, non-transparent proceeding, without the customary due process protections for the accused. As the saying goes, any prosecutor, who so desires, can “indict a ham sandwich.” An overstatement, perhaps, but close to the truth.
The American grand jury has become the new “Star Chamber,” which was the English monarchy’s secret court system that wrought injustice and abuse of power until abolished by Parliament in 1641.
The American grand jury is its reincarnation, and should meet similar demise.
Especially in instances of police violence, the grand jury can never function with justice. District attorneys are beholden to the police to work up cases they prosecute and upon which they conduct their law and order campaigns for re-election. It is an understandable symbiotic relationship, but one which always will misfire in allegations of police violence or abuse.
Moreover, police unions will put their votes and money behind district attorney candidates who support them, not prosecute them.
Grand juries have become a hand-washing machination for prosecutors. They hide behind a grand jury decision in favor of the police, even though they have manipulated its inevitable outcome.
In a related story, the Houston Chronicle reported Dec. 19 that "Hispanic representation on Harris County grand juries far below population." The paper found that not only were Hispanics and Asians underrepresented but people from law enforcement fields were overrepresented. "The Chronicle found that 58 percent of grand juries had at least one person with law enforcement or legal experience. Almost a third of grand juries had two people meeting that criteria."
Sunday, December 21, 2014
TDCJ deaths in custody skyrocketed after 2011 healthcare cuts
The press and advocates focused on the death penalty and even police shootings are missing the big picture about deaths of Texans at the hands of the state.
Regular readers know this blog seldom considers death-penalty topics unless a case intersects with other issues I routinely cover like innocence, forensic errors or prosecutor misconduct. By contrast, to read most MSM sources, both opinion and news, you'd think that what happens in Texas' execution chamber is the single most important life-or-death issue facing the criminal-justice system. Taking a step back from that myopic view, however, since 2005, roughly one person per day died in custody in Texas, Grits had earlier reported. Only a tiny fraction of those died from lethal injection.
Now that the year is winding down, it can be said that the state of Texas will have executed ten people in 2014, which is the lowest number since 1996, according to the Dallas Observer's Unfair Park blog. To put that number in context, 592 souls overall, including those ten who were executed, perished so far in 2014 while in custody of Texas law enforcement, either at the hands of police, in local county jails or, most frequently (400 of them), in custody of the Texas Department of Criminal Justice. Here are the 2014 figures (see the full excel file for all agencies) so far for some of the larger local departments.
If one were to Google the names of the ten people executed this year you'd find numerous press accounts on each of them, in-depth habeas corpus pleadings and carefully considered findings of fact by various trial courts and (less carefully considered) vetting by Texas appellate courts, plus review through a federal appellate process which has not been shy about bench slapping Texas courts when their bloodthirsty predilections exceed their constitutional authority as interpreted by the US Supreme Court.
By contrast, most of the other 582 on the AG's 2014 death-in-custody list died relatively anonymously, perhaps with a brief notice in a local paper, perhaps not. But for the most part, nobody marched in the streets like they did after recent incidents in Ferguson and Staten Island. The press and the public treated most deaths as routine inevitabilities. Many of the episodes at PDs are shootings or other killings in the field while taking suspects into custody; Sheriffs' numbers are more likely to represent deaths in the county jail.
But the truly surprising data come from TDCJ, where the number of deaths in custody has skyrocketed since the Legislature dramatically cut health care staff in 2011 and attempted to shift health care costs to inmate families. Some at TDCJ were old men who died at the end of long sentences. But that doesn't explain the remarkable, recent uptick. Following the 2011 budget cuts, TDCJ witnessed more than a three-fold rise in in-custody deaths:
Grits can't prove it, yet, but I personally believe the increase in deaths at TDCJ resulted from inferior healthcare due to understaffing from the 2011 budget and staffing cuts. TDCJ has told the Legislature it needs a $175 million budget boost for health care in the next biennium just to meet "minimum standards," a situation exacerbated by the state's decision not to expand Medicaid under Obamacare, which would have brought up to an additional $240 million to TDCJ from the feds for prisoner hospital care.
Will anyone march in the streets because of these hundreds of likely unnecessary prisoner deaths the way they did over Michael Brown or Eric Garner? Apparently not. Will east-coast donors obsessed with the death penalty look at these data and shift their spending toward reforming the parts of the justice system which are killing the most people? Don't hold your breath. Not all deaths at the hands of the state, it would seem, are created equal.
This blog takes a utilitarian view. There are perhaps a dozen or more advocacy groups and nonprofits, big and small, and hundreds of activists statewide devoted to death-penalty abolition, a cause with which I don't even 100% agree on first principles. (I happen to believe there are people in the world who need killing.) But scarce few of those principled folk seem to care about the other 98+% of deaths in custody, especially those in prison. If you believe the state shouldn't kill, it hardly makes a difference to the deceased whether it kills via the executioner's poison, a policeman's bullet, or medical neglect by the prison system. Looking at the raw numbers, it's hard to avoid a jaundiced reaction to people chanting "the whole world is watching" at an abolitionist protest - which again, deals with ten or so executions per year - while those same individuals and all the press covering their antics largely ignore the hundreds of bodies racking up elsewhere in the system.
The data on in-custody deaths at TDCJ are dramatic enough to warrant not just review by the Texas Legislature when it convenes in 2015, but maybe even the feds. Ideally, they wouldn't wait until there are crowds of chanting protesters in the street. There needs to be an independent review of why deaths in TDCJ tripled so rapidly and, if I'm right the budget and staffing cuts are to blame, the state will have set itself up for a doozy of a Section 1983 civil rights lawsuit.
DATA NOTE: 2014 data are a running total and were accurate at time of posting; a couple more deaths have already been added to the list today.
UPDATE: TDCJ says reporting change explains death in custody statistics.
Regular readers know this blog seldom considers death-penalty topics unless a case intersects with other issues I routinely cover like innocence, forensic errors or prosecutor misconduct. By contrast, to read most MSM sources, both opinion and news, you'd think that what happens in Texas' execution chamber is the single most important life-or-death issue facing the criminal-justice system. Taking a step back from that myopic view, however, since 2005, roughly one person per day died in custody in Texas, Grits had earlier reported. Only a tiny fraction of those died from lethal injection.
Now that the year is winding down, it can be said that the state of Texas will have executed ten people in 2014, which is the lowest number since 1996, according to the Dallas Observer's Unfair Park blog. To put that number in context, 592 souls overall, including those ten who were executed, perished so far in 2014 while in custody of Texas law enforcement, either at the hands of police, in local county jails or, most frequently (400 of them), in custody of the Texas Department of Criminal Justice. Here are the 2014 figures (see the full excel file for all agencies) so far for some of the larger local departments.
2014 Deaths in Custody, Various Departments
The Attorney General does not place more detailed death-in-custody reports online, a policy contrary to transparency which, IMO, the new AG should immediately change in light of local, state and national calls for police accountability. So without a lot of extra work filing open records requests, these topline data are what's available.Austin PD: 3
Travis Sheriff: 3
Dallas PD: 13
Dallas Sheriff: 8
San Antonio PD: 19
Bexar Sheriff: 8
Houston PD: 18
Harris Sheriff: 17
Fort Worth PD: 3
Tarrant Sheriff: 5
El Paso PD: 3
El Paso Sheriff: 6
If one were to Google the names of the ten people executed this year you'd find numerous press accounts on each of them, in-depth habeas corpus pleadings and carefully considered findings of fact by various trial courts and (less carefully considered) vetting by Texas appellate courts, plus review through a federal appellate process which has not been shy about bench slapping Texas courts when their bloodthirsty predilections exceed their constitutional authority as interpreted by the US Supreme Court.
By contrast, most of the other 582 on the AG's 2014 death-in-custody list died relatively anonymously, perhaps with a brief notice in a local paper, perhaps not. But for the most part, nobody marched in the streets like they did after recent incidents in Ferguson and Staten Island. The press and the public treated most deaths as routine inevitabilities. Many of the episodes at PDs are shootings or other killings in the field while taking suspects into custody; Sheriffs' numbers are more likely to represent deaths in the county jail.
But the truly surprising data come from TDCJ, where the number of deaths in custody has skyrocketed since the Legislature dramatically cut health care staff in 2011 and attempted to shift health care costs to inmate families. Some at TDCJ were old men who died at the end of long sentences. But that doesn't explain the remarkable, recent uptick. Following the 2011 budget cuts, TDCJ witnessed more than a three-fold rise in in-custody deaths:
Deaths in Custody at TDCJ
2014: 400*
2013: 441
2012: 147
2011: 125
2010: 116
2009: 142
2008: 141
2007: 145
*Year to date
Grits can't prove it, yet, but I personally believe the increase in deaths at TDCJ resulted from inferior healthcare due to understaffing from the 2011 budget and staffing cuts. TDCJ has told the Legislature it needs a $175 million budget boost for health care in the next biennium just to meet "minimum standards," a situation exacerbated by the state's decision not to expand Medicaid under Obamacare, which would have brought up to an additional $240 million to TDCJ from the feds for prisoner hospital care.
Will anyone march in the streets because of these hundreds of likely unnecessary prisoner deaths the way they did over Michael Brown or Eric Garner? Apparently not. Will east-coast donors obsessed with the death penalty look at these data and shift their spending toward reforming the parts of the justice system which are killing the most people? Don't hold your breath. Not all deaths at the hands of the state, it would seem, are created equal.
This blog takes a utilitarian view. There are perhaps a dozen or more advocacy groups and nonprofits, big and small, and hundreds of activists statewide devoted to death-penalty abolition, a cause with which I don't even 100% agree on first principles. (I happen to believe there are people in the world who need killing.) But scarce few of those principled folk seem to care about the other 98+% of deaths in custody, especially those in prison. If you believe the state shouldn't kill, it hardly makes a difference to the deceased whether it kills via the executioner's poison, a policeman's bullet, or medical neglect by the prison system. Looking at the raw numbers, it's hard to avoid a jaundiced reaction to people chanting "the whole world is watching" at an abolitionist protest - which again, deals with ten or so executions per year - while those same individuals and all the press covering their antics largely ignore the hundreds of bodies racking up elsewhere in the system.
The data on in-custody deaths at TDCJ are dramatic enough to warrant not just review by the Texas Legislature when it convenes in 2015, but maybe even the feds. Ideally, they wouldn't wait until there are crowds of chanting protesters in the street. There needs to be an independent review of why deaths in TDCJ tripled so rapidly and, if I'm right the budget and staffing cuts are to blame, the state will have set itself up for a doozy of a Section 1983 civil rights lawsuit.
DATA NOTE: 2014 data are a running total and were accurate at time of posting; a couple more deaths have already been added to the list today.
UPDATE: TDCJ says reporting change explains death in custody statistics.
Thursday, December 18, 2014
Pondering the Ghosts of Christmas Pardons Past, Present and Future
Will Texas Gov. Rick Perry issue one last round of Christmas-time pardons on his way out the door?
Usually he'd do it this week. (The sign of a clemency geek: I've been keeping the governor's web page up in a browser tab and periodically refreshing it. At least I'm up to date on the governor's views on the Australian hostage crisis and Chanukah.) Grits notoriously is not a great fan of the Christmas pardon phenomenon, but for the most part, with a few notable exceptions (especially early in his governorship), Perry has restricted routine exercises of clemency to a minimalist, annual pre-Christmas ritual.
One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.
Grits hopes we see one more clemency announcement from Rick Perry, who can afford to be generous on his way out the door. But even more, I hope Greg Abbott ends this annual charade and integrates the clemency function more deeply and thoughtfully into the day-to-day duties of the state executive. With a few, notable exceptions (the Tulia cases, DNA exonerees, death-sentence commutations to comply with US Supreme Court orders) Rick Perry either ignored clemency or treated it as a political prop. Most years, an annual announcement during the holiday season of 10-20 lucky winners of the clemency lottery was the most one could hope for.
But clemency is one of the core duties of a state executive, in Texas filtered through the governor's appointees at the Board of Pardons and Paroles. It shouldn't just be a once-a-year thing and if two-thirds of the BPPs recommendations are to be rejected, reasons ought to be given.
There are many good explanations for the rise of mass incarceration in America over the last four decades, but one contributing factor you don't hear discussed very often is that mass imprisonment coincided with a precipitous decline both in the exercise of executive clemency and judges' habeas corpus power, both of which became more timid, stilted and stymied as they fell under sustained political attack, especially surrounding the death penalty. But these are the two main remedies for overincarceration envisioned by constitutional framers. So if the executive and judicial branches are incapable of reining in mass imprisonment, allowing the tools granted them for that purpose to atrophy from disuse, that leaves the legislative branch which largely created the problem in the first place. In Texas, the Lege is slowly reconsidering its predilection for expensive, lock-em-up solutions to every social problem. But that process would go faster if the governor and the courts exercised leadership on clemency using the means already at their disposal.
WANT MORE ON PARDONS? For current news on Christmas-time pardons from other states and fromthe Pardon-Grinch-in-Chief President Obama, don't forget to check the blog Pardon Power by the inestimable P.S. Ruckman, who tracks clemency issues nationwide and around the globe.
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| The future of executive clemency looks bleak. Image from A Christmas Carol, 1951. |
One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.
Grits hopes we see one more clemency announcement from Rick Perry, who can afford to be generous on his way out the door. But even more, I hope Greg Abbott ends this annual charade and integrates the clemency function more deeply and thoughtfully into the day-to-day duties of the state executive. With a few, notable exceptions (the Tulia cases, DNA exonerees, death-sentence commutations to comply with US Supreme Court orders) Rick Perry either ignored clemency or treated it as a political prop. Most years, an annual announcement during the holiday season of 10-20 lucky winners of the clemency lottery was the most one could hope for.
But clemency is one of the core duties of a state executive, in Texas filtered through the governor's appointees at the Board of Pardons and Paroles. It shouldn't just be a once-a-year thing and if two-thirds of the BPPs recommendations are to be rejected, reasons ought to be given.
There are many good explanations for the rise of mass incarceration in America over the last four decades, but one contributing factor you don't hear discussed very often is that mass imprisonment coincided with a precipitous decline both in the exercise of executive clemency and judges' habeas corpus power, both of which became more timid, stilted and stymied as they fell under sustained political attack, especially surrounding the death penalty. But these are the two main remedies for overincarceration envisioned by constitutional framers. So if the executive and judicial branches are incapable of reining in mass imprisonment, allowing the tools granted them for that purpose to atrophy from disuse, that leaves the legislative branch which largely created the problem in the first place. In Texas, the Lege is slowly reconsidering its predilection for expensive, lock-em-up solutions to every social problem. But that process would go faster if the governor and the courts exercised leadership on clemency using the means already at their disposal.
WANT MORE ON PARDONS? For current news on Christmas-time pardons from other states and from
Antebellum Texas judges enjoyed sweeping habeas corpus authority
Grits recently opined that, over the long arc of history, nearly all legislative involvement in habeas corpus has been to restrict judicial authority, with the creation of Texas' new junk science writ in 2013 cutting against the grain. To see how much habeas corpus authority has been restricted over the years in Texas, I spent a little time looking through the 1856 Texas Code of Criminal Procedure (pdf), which I found online at the Texas Legislative Reference Library. Compare it with Chapter 11 of today's Code of Criminal Procedure which covers habeas corpus and one quickly realizes that Texas judges' authority in this area has been radically reduced since those antebellum years following statehood.
Today, Texas trial judges are mere fact finders for the Court of Criminal Appeals in the habeas corpus process. The CCA calls all the shots and their actions are highly limited by statute, mainly to post-conviction reviews, with extremely limited authority to grant relief and a process largely slanted against applicants who are overwhelmingly denied. By contrast, the 1856 Code of Criminal Procedure created by Texas' founding fathers gave Supreme Court judges (criminal wasn't split off until after the Civil War) as well as district judges far more sweeping habeas authority than they enjoy today. Here are some excerpts which will give you a sense:
See related Grits posts on Texas habeas history:
Today, Texas trial judges are mere fact finders for the Court of Criminal Appeals in the habeas corpus process. The CCA calls all the shots and their actions are highly limited by statute, mainly to post-conviction reviews, with extremely limited authority to grant relief and a process largely slanted against applicants who are overwhelmingly denied. By contrast, the 1856 Code of Criminal Procedure created by Texas' founding fathers gave Supreme Court judges (criminal wasn't split off until after the Civil War) as well as district judges far more sweeping habeas authority than they enjoy today. Here are some excerpts which will give you a sense:
High court authorityThe authors of Texas' 1856 Code of Criminal Procedure clearly envisioned activist judges operating independently via habeas corpus to provide checks and balances to inevitable state overreach, in the courageous tradition of Texas Supreme Court Chief Justice George F. Moore. By comparison, today judges' role in habeas review is largely technocratic save for a small minority of cases at the CCA level. Texas judges in 1856 enjoyed sweeping powers to review and end unjust incarceration which appear breathtaking by comparison with today's puny judicial analogues.
Article 58, 1856 Texas Code of Criminal Procedure
The Supreme Court, or either of the Judges thereof, has original jurisdiction to enquire into the cause of the detention of persons imprisoned or detained in custody, and for this purpose may issue the writ of habeas corpus, and upon the return thereof may remand such person to custody, admit to bail, or discharge the person imprisoned or detained, as the law and the nature of the case may require
District Judges could issue writ
Article 60, 1856 Texas Code of Criminal Procedure
Each District Judge has power to issue the writ of habeas corpus, and have brought before him any person imprisoned or otherwise illegally detained in custody, in any county, whether within or out of his district, and make such order on the return of the writ as the law and the facts of the case may require, whether the person detained has been indicted or not, under the restrictions herein prescribed.
Construed in favor of defendant
Article 121, 1856 Texas Code of Criminal Procedure
Every provision relating to the writ of Habeas Corpus shall be most favorably construed in order to give effect to the remedy, and to protect the rights of the person seeking relief under it.
Duty to grant
Article 122, 1856 Texas Code of Criminal Procedure
The Supreme Court, or either of the Judges of the District Courts, or either of the Judges, have power to issue the writ of Habeas Corpus and it is their duty, upon proper application, to grant the writ under the rules herein prescribed.
Judges could initiate process
Article 132, 1856 Texas Code of Criminal Procedure
A Judge of the District Court who has knowledge that any person is illegally confined or restrained in his liberty within his district, may issue the writ of Habeas Corpus without any application being made for same.
See related Grits posts on Texas habeas history:
Wednesday, December 17, 2014
Ho hum reaction to civil-pot-penalty bill a positive sign
Reactions are still rolling in to Rep. Joe Moody's proposal to reduce low-level marijuana possession to a civil offense with a $100 fine. The Fort Worth Star-Telegram chimed in with a favorable editorial (12/16), opining that "The cost of policing, prosecuting and punishing violators of Texas’
still stringent marijuana laws is enormous — in dollars, the toll on
individuals and the burden on the overall criminal justice system."
Then, ValleyCentral.com (12/16) offered one of the first stories featuring local reactions as opposed to just covering the press conference. Of particular note were the grudgingly favorable comments from the Cameron County DA:
In another outside-the-press-conference reaction, Angelica Leicht at the Houston Press suggested that Moody doesn't go far enough, declaring that "Marijuana laws in Texas are pretty darn ridiculous in their current state, and perhaps it's time for a mass overhaul." She took aim in particular at "Three ridiculous pot laws in Texas" and, though attorneys may nitpick at her characterizations, the reaction does show that some Texans will find Moody's medicine to be weak tea, particularly after seeing what voters accomplished in Colorado, Washington, Alaska, Oregon and (tentatively) D.C..
Others, of course, will inevitably weep and wail that, if Moody's bill passes, babies and old people will die, pot smoking hippies will entice schoolchildren into lives of vice, and many other terrible and highly improbable things will definitely, absolutely, immediately happen that should make us all very, very afraid. But judging from the tepid, initial response to Moody's bill, and the lack of vehement opposition to related bills in committee in years past, perhaps the reaction to Moody's civil-offense idea may be less strident than one might have guessed.
MORE: From Texas Monthly.
Then, ValleyCentral.com (12/16) offered one of the first stories featuring local reactions as opposed to just covering the press conference. Of particular note were the grudgingly favorable comments from the Cameron County DA:
"To a certain extent, I agree with the proposal, but let me first make it perfectly clear that myself and this office, does not endorse the use of marijuana," Luis Saenz, the Cameron County District Attorney, said.
If the new bill is approved, it would remove criminal penalties for possession of small amounts of marijuana.
Saenz said the county has limited resources when young offenders go to jail for offense.
It's costing them thousands of dollars, and he said Moody's proposal is nothing new.
"In my office when they have a first time offender with less than a third of marijuana, typically we don't file the case," Saenz said.Grits predicts this will become a recurring theme: Law enforcement officials will oppose Moody's bill less vehemently than one might expect - and in some, surprising instances, support it - because, in practice, they don't have resources to pursue these cases, anyway. Even Smith County Sheriff Larry Smith, who dislikes Moody's bill, says his agency does "not vehemently enforce the marijuana laws." His deputies don't "go out a looking for that," he explained, "but if we run across it, we get it."
In another outside-the-press-conference reaction, Angelica Leicht at the Houston Press suggested that Moody doesn't go far enough, declaring that "Marijuana laws in Texas are pretty darn ridiculous in their current state, and perhaps it's time for a mass overhaul." She took aim in particular at "Three ridiculous pot laws in Texas" and, though attorneys may nitpick at her characterizations, the reaction does show that some Texans will find Moody's medicine to be weak tea, particularly after seeing what voters accomplished in Colorado, Washington, Alaska, Oregon and (tentatively) D.C..
Others, of course, will inevitably weep and wail that, if Moody's bill passes, babies and old people will die, pot smoking hippies will entice schoolchildren into lives of vice, and many other terrible and highly improbable things will definitely, absolutely, immediately happen that should make us all very, very afraid. But judging from the tepid, initial response to Moody's bill, and the lack of vehement opposition to related bills in committee in years past, perhaps the reaction to Moody's civil-offense idea may be less strident than one might have guessed.
MORE: From Texas Monthly.
On the limits of citations and arrests for combating panhandling and homelessness in San Antonio
An opinion column by John Brodesky in the Express-News (Dec. 12) lamented the limits of citations and arrests for dealing with panhandling and homelessness in downtown San Antonio. The article opened:
To Brodesky, "Municipal Court for a panhandler is like circling through a revolving door. The ones taken there loop through it without ever paying their fines because they are indigent, instead getting credit for time served. Factor in transporting and holding panhandlers, or the work hours put into citing them, and it’s downright costly." Thousands of these "quality of life" citations against repeat offenders were dismissed by the SA municipal court in 2014, he pointed out, as "defective" and pointless. His column concluded:
In its never-ending war on panhandling, the San Antonio Police Department has been deploying vice detectives to issue citations for aggressive solicitation.Brodesky quoted a city memo from September declaring that “SAPD has initiated a citywide zero tolerance program on panhandlers and conducts weekly round-ups with arrests.” Nobody thinks that it's working but cops and politicians want to be seen as doing something, however pointless, and pols would rather pay for show than substance.
All through the summer, vice detectives arrested people such as Rafael Alvarado for begging for money and wandering into traffic at busy intersections.
If the goal was to waste lots of time and energy, the tickets were a slam dunk. An analysis of city documents reveals an aggressive campaign against panhandlers — likened to a quota by one expert — that has produced plenty of citations and little else.
Most everyone agrees citing panhandlers is a waste of time. But public pressure to do something, the short-term benefit of moving people out of a problematic area and a lack of other options keep the citations flowing. Meanwhile, a pilot program to steer panhandlers toward treatment has languished due to a lack of funding.
If only we were as aggressive with preventive strategies.
To Brodesky, "Municipal Court for a panhandler is like circling through a revolving door. The ones taken there loop through it without ever paying their fines because they are indigent, instead getting credit for time served. Factor in transporting and holding panhandlers, or the work hours put into citing them, and it’s downright costly." Thousands of these "quality of life" citations against repeat offenders were dismissed by the SA municipal court in 2014, he pointed out, as "defective" and pointless. His column concluded:
The department’s “mental health squad,” a six-person unit that responds to calls where a person might have mental illness, has saved taxpayers millions by placing offenders of minor offenses in treatment rather than jail.
In fact, [Chief William] McManus, Judge [John] Bull and a number of other judges and stakeholders have considered a similar pilot program for 10-15 panhandlers, but it hasn’t had much success, if any. The issue? Well, it’s ironic, really, but there is no money for it.
“Who is going to pay for the thing, or where are the beds going to be?” Bull asked.
Maybe then, our priority shouldn’t be more panhandling tickets, but funding this pilot program.
Really, it couldn’t be any less effective or wasteful.
Liberating turn in coastal bend saga: Hannah Overton free on bail
A trial judge ordered Hannah Overton released on bail yesterday after spending five years in prison for allegedly poisoning her foster son with salt. The Texas Court of Criminal Appeals in September overturned her conviction but a bail hearing was ordered because the DA has said he will seek a new trial. Members of her church congregation covered a $50,000 bond. See coverage from:
In many ways, Overton's case was the turning point when the Court of Criminal Appeals began to openly acknowledge the weaknesses in the law that spurred the Legislature to create Texas' new junk science writ and the CCA to interpret it so that it affects bad scientists, not just changing science. In a statement accompany an order for an evidentiary hearing in Overton's case in 2012, Judge Cathy Cochran wrote:
- Texas Monthly
- Corpus Christi Caller Times
- San Antonio Express-News
- KRIS-TV Corpus Christi
- ABC News
- The Guardian (UK)
In many ways, Overton's case was the turning point when the Court of Criminal Appeals began to openly acknowledge the weaknesses in the law that spurred the Legislature to create Texas' new junk science writ and the CCA to interpret it so that it affects bad scientists, not just changing science. In a statement accompany an order for an evidentiary hearing in Overton's case in 2012, Judge Cathy Cochran wrote:
This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today's science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow's science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today's public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result--an accurate result that will stand the test of time and changes in scientific knowledge.That was precisely the argument Cochran and Co. finally won 5-4 just before Thanksgiving in Ex Parte Robbins II. Ironically, though Overton's case helped spur the Lege to create the new junk science writ, she did not end up benefiting from it. In the end, her habeas writ rested on two grounds: Ineffective assistance of counsel and exculpatory evidence allegedly withheld by prosecutors. The CCA in September granted the IAC claim without ruling on prosecutor misconduct allegations, a result which eventually led to Overton's bail hearing and release this week.
Id. The problem in this case, as in Robbins, is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available
Tuesday, December 16, 2014
Resources for tracking activity, bills during the 84th Texas Legislature
I've done this before, but as we approach Texas' 84th legislative session in January, Grits thought it prudent to iterate a few handy sources for those following the action from outside the pink dome.
Capitol website: Search by bill number or perform word searches. (Be sure it's set to the appropriate session.) Or review all current Texas statutes online. Especially useful for bill research are the reports sections, both the general, pre-defined reports and narrower ones you specify. The capitol site also provides a password-protected, personalized bill tracking service and bill/meeting alerts. These are the equal of professional services that cost thousands of dollars and have improved every session. For example, this session for the first time, pdf versions of bills on the capitol website include hyperlinks to the underlying statute they're changing. (The Legislative Reference Library has a tool that previously assisted with that and will still be needed for paper versions.) The only things the paid services have that the capitol site doesn't are blow-by-blow updates from the floor, especially during the amendment process, and more detailed minutes/notes from committee meetings that give you a time-stamp for witnesses' testimony so you can go back and find it amidst the countless hours of video on the capitol website. Otherwise, for all but full-time professional lobbyists, these free services should more than meet your needs. The House and Senate websites are operated independently and contain unique information about individual members and committee activity in those chambers including streaming and archived video of committee hearings.
Legislative Reference Library: The Legislative Reference Library on the second floor of the capitol is an underutilized state gem that few people outside legislative staff, the better lobbyists, and a few appellate attorneys truly appreciate. The staff is friendly, helpful and patient. Great for researching legislative history and intent - its main function - but their whole collection uniquely focuses on Texas state government and I've learned a lot over the years just combing the stacks and reading. Here's a brief list of their specialized collections. Their website is full of great current and historical information and Texas-specific tools and databases. They've also got a nice (if regrettably blog-free) statewide list of Texas media outlets. And perhaps most usefully on a day to day basis, if you've ever been in a legislator's office and seen a stapled, legal-sized compendium of daily news clippings floating around staffers' desks, these are the folks who compile them. Happily, these days they also put the daily links online.
Texas Tribune directory: Most folks are aware of the Texas Tribune's nonprofit news stories, but their state official directory lists contact info and staffers for every member. One of the best, comprehensive, free sources of that information and it seems to stay pretty up to date.
Legislative Budget Board: Provides access to agencies' appropriations requests and tracks the progress of House and Senate budget bills. On the criminal justice front, they also track adult and juvenile prison population trends and numerous other quantifiable policy measures.
If you've got those tools, a telephone, email, and a Google News feed, and if you don't mind spending hours watching hearings online, you've got access to most of the methods available to professional journalists and lobbyists who track this stuff for a living.
Capitol website: Search by bill number or perform word searches. (Be sure it's set to the appropriate session.) Or review all current Texas statutes online. Especially useful for bill research are the reports sections, both the general, pre-defined reports and narrower ones you specify. The capitol site also provides a password-protected, personalized bill tracking service and bill/meeting alerts. These are the equal of professional services that cost thousands of dollars and have improved every session. For example, this session for the first time, pdf versions of bills on the capitol website include hyperlinks to the underlying statute they're changing. (The Legislative Reference Library has a tool that previously assisted with that and will still be needed for paper versions.) The only things the paid services have that the capitol site doesn't are blow-by-blow updates from the floor, especially during the amendment process, and more detailed minutes/notes from committee meetings that give you a time-stamp for witnesses' testimony so you can go back and find it amidst the countless hours of video on the capitol website. Otherwise, for all but full-time professional lobbyists, these free services should more than meet your needs. The House and Senate websites are operated independently and contain unique information about individual members and committee activity in those chambers including streaming and archived video of committee hearings.
Legislative Reference Library: The Legislative Reference Library on the second floor of the capitol is an underutilized state gem that few people outside legislative staff, the better lobbyists, and a few appellate attorneys truly appreciate. The staff is friendly, helpful and patient. Great for researching legislative history and intent - its main function - but their whole collection uniquely focuses on Texas state government and I've learned a lot over the years just combing the stacks and reading. Here's a brief list of their specialized collections. Their website is full of great current and historical information and Texas-specific tools and databases. They've also got a nice (if regrettably blog-free) statewide list of Texas media outlets. And perhaps most usefully on a day to day basis, if you've ever been in a legislator's office and seen a stapled, legal-sized compendium of daily news clippings floating around staffers' desks, these are the folks who compile them. Happily, these days they also put the daily links online.
Texas Tribune directory: Most folks are aware of the Texas Tribune's nonprofit news stories, but their state official directory lists contact info and staffers for every member. One of the best, comprehensive, free sources of that information and it seems to stay pretty up to date.
Legislative Budget Board: Provides access to agencies' appropriations requests and tracks the progress of House and Senate budget bills. On the criminal justice front, they also track adult and juvenile prison population trends and numerous other quantifiable policy measures.
If you've got those tools, a telephone, email, and a Google News feed, and if you don't mind spending hours watching hearings online, you've got access to most of the methods available to professional journalists and lobbyists who track this stuff for a living.
Moody proposes civil penalty, $100 fine for less than 1 oz of pot
Texas state Rep. Joe Moody yesterday held a press conference to promote his new bill HB 507 which would change the penalty for possession of less than an ounce of marijuana to a civil, rather than a criminal offense, with a $100 fine. As these things go, the presser went well. Rep. Moody was sharp and focused and Heather Fazio of the Marijuana Policy Project did a good job as emcee. The event was packed with supporters and had decent coverage; I counted six TV cameras, though several print outlets were notably absent. Your correspondent attended on behalf of the Texas Criminal Justice Coalition. Here's a roundup of MSM coverage I saw this morning:
Rep. Moody's innovation in HB 507 is to create a civil penalty instead of merely dropping the offense to a Class C. The bill specifically says the civil fine will not be considered a criminal conviction and police couldn't arrest people solely for possessing less than an ounce of pot. (See the text.) As a former misdemeanor prosecutor from El Paso, Moody is well-positioned to make the case for this legislation.
There are several reasons to go the civil route. Criminal drug convictions, even a ticket, carry collateral consequences like losing access to student financial aide or other benefits that a civil penalty would not. Plus, advocates can claim the bill "decriminalizes" pot, which changing this to a Class C keeps the offense in the criminal realm. Senior District Judge John Delaney from Bryan spoke at the presser and cited polling, repeated in a couple of the above-linked stories, showing 61 percent support among Texans asked a polling question which nearly exactly described Rep. Moody's bill (civil penalty, $100 fine).
The flip side is that Texas law criminalizes everything legislators don't like, even stuff that in other states is covered by civil regulations like business practices (which is why we have eleven different felonies in Texas you can commit with an oyster). So the bill cuts against the state's routine practices and may face nonpayment problems when JP courts begin to adjudicate cases. The best analogy may be red-light cameras, tickets from which are among the only comparable "civil" offenses in Texas and have poorer-than-touted payment rates. OTOH, other states have managed to crack this nut and use civil penalties for lesser offenses, so it's not as though it can't be done. And avoiding collateral consequences for a drug conviction is a big deal.
Good luck, Rep. Moody. Here's hoping you've brought the right bill at the right political moment.
- Time magazine
- Houston Chronicle
- San Antonio Current
- News4San Antonio
- KENS-San Antonio
- WOAI-San Antonio
- KLTV-Tyler (w/ negative reaction from Sheriff)
- KVIA-El Paso
Rep. Moody's innovation in HB 507 is to create a civil penalty instead of merely dropping the offense to a Class C. The bill specifically says the civil fine will not be considered a criminal conviction and police couldn't arrest people solely for possessing less than an ounce of pot. (See the text.) As a former misdemeanor prosecutor from El Paso, Moody is well-positioned to make the case for this legislation.
There are several reasons to go the civil route. Criminal drug convictions, even a ticket, carry collateral consequences like losing access to student financial aide or other benefits that a civil penalty would not. Plus, advocates can claim the bill "decriminalizes" pot, which changing this to a Class C keeps the offense in the criminal realm. Senior District Judge John Delaney from Bryan spoke at the presser and cited polling, repeated in a couple of the above-linked stories, showing 61 percent support among Texans asked a polling question which nearly exactly described Rep. Moody's bill (civil penalty, $100 fine).
The flip side is that Texas law criminalizes everything legislators don't like, even stuff that in other states is covered by civil regulations like business practices (which is why we have eleven different felonies in Texas you can commit with an oyster). So the bill cuts against the state's routine practices and may face nonpayment problems when JP courts begin to adjudicate cases. The best analogy may be red-light cameras, tickets from which are among the only comparable "civil" offenses in Texas and have poorer-than-touted payment rates. OTOH, other states have managed to crack this nut and use civil penalties for lesser offenses, so it's not as though it can't be done. And avoiding collateral consequences for a drug conviction is a big deal.
Good luck, Rep. Moody. Here's hoping you've brought the right bill at the right political moment.
Monday, December 15, 2014
I Can't Breathe, South Texas style, and other stories
Here's a browser clearing compendium of items that merit Grits readers' attention even though I haven't had time to adumbrate them fully.
Wrong solution to culturally inept 'surge' participants
Is it true, as Valley legislators allege, that "Too many of the Department of Public Safety troopers assigned to the South Texas border region do not understand the local Hispanic culture and are unable to speak Spanish"? Perhaps. I'll even go with, "Probably." To me, though, the solution is to scale back the politicized, pointless, metric-free, "surge," not to build a damn training center down there to make it permanent!
Lawsuit alleges sexual assault by employee of county jail contractor
A lawsuit by a former inmate alleges she was sexually assaulted by an employee of Community Education Centers, a private prison firm out of New Jersey that operates McLennan County's local jail, reported the Waco Tribune Herald. Jail privatization has already been a financial albatross for the county, but, if true, these allegations and the process of proving them in court might turn public opinion against the county's jail contracts more viscerally.
I Can't Breathe, South Texas style
Eighteen students and staff members at a Raymondville ISD middle school were given medical treatment after they were exposed to tear gas during a training exercise at the neighboring Willacy County State Jail, reported KWTX TV.
New Tarrant DA will create Conviction Integrity Unit
The new Tarrant County DA Sharen Wilson will create a Conviction Integrity Unit. The fellow hired to run it, Larry Moore, said correctly that the lower number of exonerations in Tarrant may be because they “didn’t have the pattern of abuse you found in Dallas," as local officials have insisted. "But frankly, all the evidence was destroyed here, and Dallas kept it,” he added, which regular Grits readers know more accurately gets to the heart of the matter.
Priced to go
Outgoing Texas Court of Criminal Appeals Judge Tom Price spoke to the Austin Statesman's Chuck Lindell about his last-minute declaration that he opposes the death penalty after sending hundreds of men and women to death. (Price's views have migrated greatly from those of the judge who was warned by the State Commission on Judicial Conduct in 2001 for a campaign message touting that he had "no sympathy" for the criminal.) Regrettably, Lindell's conversation with the judge did not stray from Price's new-found death penalty views to plumb other topics like ideological splits on the court, relationships among judges following the Charles Dean Hood debacle, or his reasons for switching sides in Ex Parte Robbins I and II. I understand Texas Monthly will publish an interview with outgoing CCA Judge Cathy Cochran early next year, though don't expect her to break decorum and speak about the insider baseball stuff.
Reddy: Pretrial detention of low-risk offenders 'counterproductive for public safety'
Vikrant Reddy of the Texas Public Policy Foundation authored an editorial in the Houston Chronicle explaining how "pretrial incarceration of those who do not pose a high risk of committing a serious crime is counterproductive for public safety." He argues for "developing pretrial risk assessment instruments that can be used to make sound determinations about who needs to be in jail and who does not."
Mass imprisonment and public health
I'd missed a NY Times editorial from last month regarding harms to public health from mass incarceration. Here's a notable excerpt from its opening:
Wrong solution to culturally inept 'surge' participants
Is it true, as Valley legislators allege, that "Too many of the Department of Public Safety troopers assigned to the South Texas border region do not understand the local Hispanic culture and are unable to speak Spanish"? Perhaps. I'll even go with, "Probably." To me, though, the solution is to scale back the politicized, pointless, metric-free, "surge," not to build a damn training center down there to make it permanent!
Lawsuit alleges sexual assault by employee of county jail contractor
A lawsuit by a former inmate alleges she was sexually assaulted by an employee of Community Education Centers, a private prison firm out of New Jersey that operates McLennan County's local jail, reported the Waco Tribune Herald. Jail privatization has already been a financial albatross for the county, but, if true, these allegations and the process of proving them in court might turn public opinion against the county's jail contracts more viscerally.
I Can't Breathe, South Texas style
Eighteen students and staff members at a Raymondville ISD middle school were given medical treatment after they were exposed to tear gas during a training exercise at the neighboring Willacy County State Jail, reported KWTX TV.
New Tarrant DA will create Conviction Integrity Unit
The new Tarrant County DA Sharen Wilson will create a Conviction Integrity Unit. The fellow hired to run it, Larry Moore, said correctly that the lower number of exonerations in Tarrant may be because they “didn’t have the pattern of abuse you found in Dallas," as local officials have insisted. "But frankly, all the evidence was destroyed here, and Dallas kept it,” he added, which regular Grits readers know more accurately gets to the heart of the matter.
Priced to go
Outgoing Texas Court of Criminal Appeals Judge Tom Price spoke to the Austin Statesman's Chuck Lindell about his last-minute declaration that he opposes the death penalty after sending hundreds of men and women to death. (Price's views have migrated greatly from those of the judge who was warned by the State Commission on Judicial Conduct in 2001 for a campaign message touting that he had "no sympathy" for the criminal.) Regrettably, Lindell's conversation with the judge did not stray from Price's new-found death penalty views to plumb other topics like ideological splits on the court, relationships among judges following the Charles Dean Hood debacle, or his reasons for switching sides in Ex Parte Robbins I and II. I understand Texas Monthly will publish an interview with outgoing CCA Judge Cathy Cochran early next year, though don't expect her to break decorum and speak about the insider baseball stuff.
Reddy: Pretrial detention of low-risk offenders 'counterproductive for public safety'
Vikrant Reddy of the Texas Public Policy Foundation authored an editorial in the Houston Chronicle explaining how "pretrial incarceration of those who do not pose a high risk of committing a serious crime is counterproductive for public safety." He argues for "developing pretrial risk assessment instruments that can be used to make sound determinations about who needs to be in jail and who does not."
Mass imprisonment and public health
I'd missed a NY Times editorial from last month regarding harms to public health from mass incarceration. Here's a notable excerpt from its opening:
When public health authorities talk about an epidemic, they are referring to a disease that can spread rapidly throughout a population, like the flu or tuberculosis.But researchers are increasingly finding the term useful in understanding another destructive, and distinctly American, phenomenon — mass incarceration. This four-decade binge poses one of the greatest public health challenges of modern times, concludes a new report released last week by the Vera Institute of Justice.For many obvious reasons, people in prison are among the unhealthiest members of society. Most come from impoverished communities where chronic and infectious diseases, drug abuse and other physical and mental stressors are present at much higher rates than in the general population. Health care in those communities also tends to be poor or nonexistent.The experience of being locked up — which often involves dangerous overcrowding and inconsistent or inadequate health care — exacerbates these problems, or creates new ones. Worse, the criminal justice system has to absorb more of the mentally ill and the addicted. The collapse of institutional psychiatric care and the surge of punitive drug laws have sent millions of people to prison, where they rarely if ever get the care they need. Severe mental illness is two to four times as common in prison as on the outside, while more than two-thirds of inmates have a substance abuse problem, compared with about 9 percent of the general public.Common prison-management tactics can also turn even relatively healthy inmates against themselves. Studies have found that people held in solitary confinement are up to seven times more likely than other inmates to harm themselves or attempt suicide.The report also highlights the “contagious” health effects of incarceration on the already unstable communities most of the 700,000 inmates released each year will return to. When swaths of young, mostly minority men are put behind bars, families are ripped apart, children grow up fatherless, and poverty and homelessness increase. Today 2.7 million children have a parent in prison, which increases their own risk of incarceration down the road.If this epidemic is going to be stopped, the report finds, public health and criminal justice systems must communicate effectively with one another.