Thursday, January 29, 2015

House committee: Raise age of criminal culpability from 17-18

The Texas House Criminal Jurisprudence Committee in its interim report (pdf) recommended raising the age of criminal culpability from 17 to 18 years old. What sorts of offenses are seventeen year olds committing in Texas?
Like teenagers in the juvenile system, 17-year-olds are typically arrested for non-violent, relatively minor offenses as demonstrated. In 2013, for example, 44% of all 17-year-olds arrested were arrested for larceny, marijuana possession, violating liquor or public drunkenness. Also, between 2012 and 2013, arrests of 17-year-olds dropped by 20 %, going from 32,981 arrested in 2012 to 26,274 arrested in 2013.
In all, "17-year-olds added up to about 3% of all adult arrests in 2013." So in the scheme of things we're talking about a significant but not monumental change. There's an excellent, in-depth discussion of this issue in the report that we'll come back to later when the legislation is heard and which is mandatory reading for those interested in the topic.

The committee also recommended expanding eligibility for expunction and shortening the waiting periods before people can apply for orders of expunction or non-disclosure. MORE: See an analysis of this section of the report from Bryan attorney Lane Thibodeaux.

They would expand regulation, modestly, of criminal history sales by the state. They would expand pretrial diversion and treatment programming for mentally ill defendants.

On graffiti, they suggested expanding abatement programs and raising the penalty thresholds to adjust for inflation.

They advocated reducing the number of criminal penalties outside the penal code, and expanding community supervision for state jail felonies, including implementation of "split sentencing" where a defendant is supervised on probation following a brief incarceration stint.

Grits may have more to say on these topics later when I've had a chance to read the report but for now I wanted to pass along the link. Read the full thing (pdf) for yourself.

Whistleblower lab worker punished for Houston officer's mistake

Following up on the story of errors at the Houston crime lab that led to dismissal of felony DWI charges, Houston Chronicle columnist Lisa Falkenberg concluded an article this week (Jan. 28) summarizing the case's significance:
in the grand scheme of things, these lapses aren't earth-shattering. Nobody's life was dangling in the balance on death row. And if this episode had occurred a few years earlier, we might never have heard about it.

But it just so happened that these mistakes happened right before a newly created local government corporation, called the Houston Forensic Science Center, took over crime lab operations from HPD. City leaders created the corporation in a bid to rebuild public trust in a lab that had been mired in scandal, suspended temporarily in 2002 and overwhelmed by a decades-old backlog of untested rape kits.

The new leaders promised transparency. They thoroughly investigated the mistakes made by the second lab analyst who handled the sample. And even before they arrived, she had been taken off casework and assigned to intensive retraining.

The new leaders, led by Scott Hochberg, who chairs the city forensics board, implemented a list of new policies and procedures to keep such mistakes from happening again and to deal with them more transparently when they do happen. Changes include conducting "root cause" investigations for errors.

The episode was also reviewed thoroughly by the city's inspector general, and then it underwent months of review by the state's forensic science commission, which put together another report. Both of them read at times like a cross between "CSI" and "Who's on First."

But at least there was accountability and some attempt at transparency.

In contrast, let's look at what has been done at HPD to address the situation.
As best as I can tell, nothing.

A department spokesman said he could find "no record of any investigation ever conducted of mislabeling of evidence" after Quezada's October 2013 mistake.

It appears the officer was allowed to continue with his nonchalant handling of evidence, until he ran into more trouble - which rose, it seems, to a whole other level.

According to the HPD spokesman, Quezada "is currently relieved of duty pending the outcome of an internal affairs investigation into criminal and conduct allegations."

We don't know what kind of allegations. We don't know what kind of crime, what kind of conduct because the HPD won't say, as is their custom.
For those interested in more detail, see the final FSC report as well as the local OIG report on the topic. I've still not had a chance to read those documents in full myself, but reading between the lines in the FSC report, one might take this analysis one step further, considering it from the perspective of front-line crime-lab workers. Not only was no one at HPD held accountable, the gal who identified the problem was taken off case work and sent to retraining for three months, even though her supervisor, who did not receive retaining, "reviewed and approved" all her work. In a workplace context, being taken off case work amounts to a punishment, or at least a remedial action, while there was no retraining or disciplinary action for the officer whose error caused the problem or the supervisor who failed to catch it.

That outcome doesn't particularly provide other crime lab employees with a big incentive to come forward when they find a problem. They may rightly think they'll be blamed and punished while their supervisors and any officers involved will face no consequence. Or, as the FSC report put it, "When the laboratory issues a root cause analysis that inequitably attributes responsibility to one analyst while downplaying management's contribution to the same incident, the resulting environment may be one in which analysts are hesitant to report mistakes. This dynamic can have a chilling effect on laboratory self-disclosure, which contradicts fundamental concepts in both the established accreditation standards" and under Texas law.

Adversity does not generally shape character so much as it reveals it. The young lab worker revealed hers by owning up to her mistake as soon as she identified it. Lab managers revealed theirs by throwing her under the bus.

Hits keep on coming for TX civil commitment program

Between a new state audit generating unfavorable stories like these:
and the fact that the judge hearing all the state's civil commitment cases, Judge Michael Seiler, appears irreparably biased, perhaps it's time for the state to abandon the civil commitment program altogether or at least reinstate control over the cases to local judges, perhaps managed through local probation offices. Clearly what's happening now is not working.

The program's been a hot mess since I first became aware of it and, while the former executive director Allison Taylor was recently scapegoated out the door, IMO the Lege created most of the problems by crafting an unworkable system then handing control over it to a judge whose personal biases make him unsuited to preside over the cases. (I say his "biases" are the problem but, perhaps more to the point, really it's Seiler's inability to control his mouth that's at issue. The scandal isn't that a judge thinks such things, it's the fact that he voices such opinions in public settings that makes the State Commission on Judicial Conduct unhappy).

Now, as the Houston Chronicle summarized the auditors' report, we learn additional critiques that more directly implicate past management, though in the context of an inherently insular and dysfunctional system. "The agency responsible for overseeing the state's civil commitment program for violent sex offenders awarded most of its contracts without competitive bidding, did not keep appropriate financial records and failed to monitor - or even plan for - the treatment of the men under its supervision." Add to this the fact that it's basically impossible for the agency to find free-world housing for its charges thanks to NIMBY backlashes wherever they try to place them.

Basically, nothing works at all in Texas' civil commitment system. Supervision and programming are ineffectual, finances are unaccountable, housing is non-existent (leaving the state at the mercy of vendors), the sole judge given authority over the cases is routinely recused for personal bias, and the hits just keep on coming. And all this so the state can continue to punish a few hundred people who've already discharged their complete criminal sentences under the law. Grits hasn't dug into this jumbled mess deeply enough to suggest what the immediate fixes are, besides disempowering Judge Seiler and sending the cases back to local judges. But the status quo is untenable.

One suspects the key measures will be filed by Senate Criminal Justice Chairman John Whitmire, who made a game attempt to exercise oversight during the interim as the agency's situation deteriorated. But flaws in the civil commitment program are embedded in its statutory design, not driven by personalities, even Allison Taylor's or Judge Seiler's. Meaningful solutions - whether reforming the system or ending it - can really only happen while the Legislature is in session. By the end of  May, we'll see what they do.

Report: Juvie deincarceraton in Texas coincided with large crime declines

A brief note from AP previewed a report on the Texas juvenile justice system coming out today:
A new study concludes that the Texas juvenile justice system's shift away from housing youths in state-run detention facilities has coincided with a sharp drop in crime committed by young people.

The report commissioned by Texas and compiled by the Justice Center at the nonpartisan Council of State Governments is being unveiled Thursday in Austin. It tracked 1.3 million case records between 2007 and 2011.

In 2008, lawmakers overhauled the system after pervasive reports of physical and sexual abuse.
That helped the number of youths confined to state facilities fall by 65 percent between 2007 and 2012. Many were shifted to community-based, county programs.

But the study found that, over the same period, crimes committed by youths declined 33 percent.
It also says smaller state-facility populations saved Texas $150 million.
The report's already available on the Council of State Governments Justice Center website (see a 16-page executive summary), which will stream a two-hour event surrounding its release beginning at 10 a.m..

MORE: From Reid Wilson at the Washington Post. AND MORE: See coverage from the Texas Tribune, AP, the Dallas Morning News, the Austin Statesman, and the Texas Observer.

Read more here:

Wednesday, January 28, 2015

Texas saw 615 deaths in custody statewide in 2014; more than 400 at TDCJ

Because the MSM covers the death penalty so closely, one frequently sees headlines like this one - "Texas inmate set to die Wednesday gets reprieve" - whenever scheduled executions are delayed. But we seldom see comparable coverage regarding TDCJ inmates' unscheduled deaths, which occur on average more than once per day. 

Texas' final death-in-custody total for 2014 reached a whopping 615 people by year's end, according to the master list (xls) maintained by the Texas Attorney General, including 410 people who died in custody of TDCJ and 205 people who in custody of local jails or officers in the field. By comparison, the state executed ten people in 2014.

In December, TDCJ spokesman Jason Clark sent Grits data regarding deaths in custody at TDCJ in recent years. Adding last year's total, here's the updated list for context:

Deaths in custody at TDCJ

2007 – 436
2008 – 469
2009 – 424
2010 – 382
2011 – 418
2012 – 463
2013 – 443
2014 – 410

That's an average of 430 prisoner deaths per year at TDCJ over the last eight years, with last year on the low end of the range. These deaths were never scheduled, thus never delayed, and for the most part no newspaper reporter ever told their stories. But they remain just as dead as the men and women killed in the execution chamber, their families grieve as ardently. Dead is dead, even if humans seem to suffer from a desire to make some deaths matter more than others. It's all the same to the deceased.

DATA NOTE: Memo to the new AG Ken Paxton: Please link to individual death in custody reports from the OAG page listing them instead of only posting the names and excel file so people must file open records requests for them. That wastes everyone's time - the agency's and requestors' - and erects needless barriers between the information and people who might use it. Those reports are irrefutably public records about which there is inherently a high degree of public interest. Why not be proactive about making them accessible?

Tuesday, January 27, 2015

Pardon me, Governor Abbott, but about your clemency policy?

Despite recent national attention to clemency policy, I've yet to hear of any reporter asking Texas Governor Greg Abbott about his. Might he order a review of the hundreds of cases in which the Board of Pardons and Parole recommended clemency and Perry never signed off to see if deserving candidates were overlooked? Should we expect clemency to be exercised regularly as a routine part of the governor's duties or will it be relegated to symbolic Christmastime media rituals, as under his predecessor? And in general, as Grits wondered last November:
Will Greg Abbott exercise clemency more generously than Perry? Texas' longest serving governor rejected two-thirds of recommendations for clemency sent to him by the Board of Pardons and Paroles, for the most part allowing the constitutional pardon power to atrophy on his watch. He's not the only executive-branch figure to ignore the clemency process: It's something Rick Perry and Barack Obama have in common. Still, to my knowledge, no reporter ever questioned Greg Abbott during the campaign about his stance on executive clemency: Other than his view that governors can issue posthumous pardons, who knows what Abbott thinks about the pardon power?
Along with vetoes and bill signing, clemency is one of a handful of unique executive powers in a system based on separation of powers. But you wouldn't know that from the gubernatorial campaigns last year nor from media coverage of Texas' executive, which typically treats clemency as a Christmastime afterthought if it's considered at all. As much as I'm pessimistic about whether Abbott might adopt a more aggressive clemency policy, I'm even more disappointed that the man made it all the way to the governor's mansion seemingly without ever facing a question about clemency or discussing the issue publicly at all. That speaks more to a failure of press and process.

Disability and abuse, aging and budgets, chipping away at rape kit backlogs, unheralded drug exonerations, and what to do with an empty jail

While Grits focuses elsewhere, here are several news items that merit readers' attention:

Are disabled inmates at the Estelle Unit abused?
Maurice Chammah the Marshall Project summarized a recent report (pdf) from the Prison Justice League focused on the Estelle Unit in a story titled  Report: Blind, deaf, disabled inmates abused in Texas prisons.

Aging prisoners drive rising prison health budget
Thanks to long sentences and unforgiving parole policies, expect this meme to become repetitive over the next few years: "Texas prison budget feels strain as age of prisoners keeps rising." Prison costs are rising for two main reasons: Churn among tens of thousands of nonviolent offenders who mostly spend short periods of time inside, and long, unyielding sentences for violent offenders which prioritize punishment for past crimes long after there's any public safety benefit from incarceration. There will be proposals this session to address the former group, but the latter remains more or less a third rail, even if it's the primary cause of rising health costs from senior citizen inmates.

700 untested rape kits in Amarillo PD backlog
Much attention has been paid to big city rape kit backlogs, but the issue arises in smaller jurisdictions, too. Amarillo PD turned out to have 700 untested rape kits in their backlog, of which they've initiated testing on the first 50 with state-funded grant.

The strange case of Texas' drug-crime exonerees
The odd phenomenon of Texans convicted of drugs then exonerated by crime labs after they plea helped drive up national exoneration totals in 2014, reported AP: "The U.S. saw a record number of exonerations in 2014, and it was due in part to 33 cases in Texas in which individuals had their drug convictions dismissed after lab tests determined they never had illegal substances." The Houston Chronicle had a good story localizing the issue, though they're wrong that no one has tried to think of a solution. It's just that it's not a simple thing. People want to plea to get out of jail and the law can't (and probably shouldn't) stop them. So it's hard to craft a solid fix beyond expanding crime-lab funding to politically non-viable levels. Eric Dexheimer at the Statesman reported last week on the latest of these drug-crime exonerees. See his 2013 story that first ratcheted up interest in this odd sub-category of exonerations in which Texas seems to specialize. MORE: Check out a discussion of these sorts of cases on the Texas prosecutors association forum.

Business interests
AP has a feature out on the Prison Entrepreneurship Program.

What to do with an empty jail?
If I were a taxpayer in Walker County, I'd want county commissioners to scrap and sell the old jail and the 2.5 acres it sits on to private interests. Thanks to TDCJ and the park system, Walker County has a remarkable amount of its surface area apportioned toward tax-exempt uses.  If I were on the commissioners court, I'd be thinking of ways to get that property productively back on the tax rolls. RELATED (Jan. 29): Converted Cellblocks.

Monday, January 26, 2015

Houston crime lab labeling errors led to dropped DWI charges

More dysfunction at the Houston crime lab, where in Oct. 2013, before its transition from HPD to an independent entity, "A lack of attention by both the analyst and the analyst's supervisor allowed [a] report containing inaccurate information from the submitting officer to be reported to the District Attorney's office," according to a December report by the city's inspector general's office and a soon-to-be-released investigation by the Texas Forensic Science Commission. Anita Hassan at the Houston Chronicle reported (Jan. 23) over the weekend on an investigation by the Forensic Science Commission, whose investigative report on the topic was openly line-edited at their meeting on Friday. In this episode, "Miscues by Houston police and crime lab employees led to the wrong blood being tested in a 2013 drunken driving case where charges were eventually dropped against one suspect, according to results from two separate investigations released on Friday."

Further, reported Hassan, "The commission's investigation also found professional negligence on the part of the crime laboratory, they stated during a Friday meeting. Their investigation was launched after an analyst in the case submitted a complaint."

The analyst who made the error "was taken off case work duties for three months, during which time she underwent extensive training." However, "Whether any disciplinary action was taken against the police officer who initially mislabeled the evidence is not known." The story concluded with Daniel Garner, head of the new, civilian Houston forensic center which took over the crime lab last April, accepting responsibility for cleaning up the SNAFU.
Both the commission and the inspector general recommended changes at the lab to avoid further errors. Garner noted that most of the changes have been made and the center has taken several steps to ensure that such errors do not occur again. Those steps include implementing a written policy that evidence submitted with incorrect information will not be analyzed until all the data has been corrected, enhancing training to staff and increasing their quality insurance staff.

Garner said he also is talking with HPD officials about changes to improve submission of evidence.

The bulk of the errors pointed out in both investigations occurred while the police department still operated the crime lab, but Garner said he is willing to take on the responsibility for the incident.

"We were set up to take over the forensic operations and improve upon it, make them more robust and improve the quality," he said. "To me the idea of ducking something before my watch, that's a non-starter. We are just going to move forward from that."
MORE (1/27): There may be a followup post once Grits has a chance to read these documents, but in the meantime, I've obtained and uploaded the final FSC report on the Houston toxicology lab episode as well as the local OIG report. Happy reading.

Sunday, January 25, 2015

Political landscape in Texas Senate taking shape: Effect of committee assignments, elimination of 2/3 rule on criminal justice policy

The political landscape in the Texas state senate during the 84th Texas Legislature, both generally and on the criminal justice front, has begun to take shape. Newbie Lt. Gov. Dan Patrick announced committee assignments on Friday and the eastern chamber earlier eliminated its decades-old 2/3 rule. Let's consider the implications of both for the criminal justice arena:

Who said you can't put new wine in old skins? (Oh, yeah.)
As we await the designation of committee and chair assignments in the Texas House, consider recent changes at the Senate Criminal Justice Committee. Though still chaired by Sen. John Whitmire, a Houston Democrat and the senate's longest serving member, the seven-member panel will be joined by four freshmen senators - three Rs (Konni Burton, Brandon Creighton and Charles Perry) and a D (the winner of the runoff to replace Leticia Van de Putte).

Rookie Sen. Charles Perry was on the criminal justice subcommittee of House Appropriations, so he's at least familiar with the system at the macro level (which is generally fine for legislative purposes). However, his fellow-rookie Brandon Creighton served on committees unrelated to criminal justice when he was in the House, while Konni Burton is new to the Lege entirely and has no state voting history. Those three and the winner of a Feb. 17 runoff in San Antonio will join veteran senators Juan "Chuy" Hinojosa, who remained Vice Chair of Senate Finance (now run by Jane Nelson), and Vice Chair Joan Huffman, who also takes the reins at the powerful State Affairs Committee.

Got all that? There will be a test.

Speaking of Sen. Huffman, perhaps the biggest criminal justice news from the senate committee announcements involved a bell that failed to ring. At one point during the campaign, now-Lt. Gov. Dan Patrick had suggested he may name no Democratic chairs at all (he later backed off that) and there was wide speculation that, if he made good on the threat, Joan Huffman was the odds on favorite to replace John Whitmire as Criminal Justice Chair. Instead, Patrick made her vice chair and elevated her to run the State Affairs Committee. A close observer needn't have been surprised. As the Dean of the Senate and someone who'd forged a personal relationship with Patrick, if any Democrat was going to keep their chairmanship it was going to be Whitmire. (Eddie Lucio was the other.)

Perhaps Huffman, a former prosecutor and judge, was disappointed not to get the chairmanship for which her background might make one think she'd most naturally fit in a pigeon hole. But State Affairs presides over tons of big-picture, red-meat stuff that GOP primary voters and donors care about. The Lieutenant Governor has handed her an opportunity and I'd guess that Sen. Huffman's smart enough to seize it with both hands. Given a two-session planning horizon, she could make her bones at State Affairs as a statewide figure if she cared to do so.

Regardless, now we await House committee assignments. Lt. Gov. Patrick issued them remarkably early on the senate side and I've heard speculation that may pressure the House to issue theirs earlier than usual, too, though it's not unusual to wait into February for committees to be named. Speaker Joe Straus has a lot of new members and an ill-conceived, opening-day Speaker vote to consider when making assignments. Plus, by rule the Lege can't consider bills for the first 30 days, so he has a moment to think about it.

Thoughts on abolition of the 2/3 rule ...
Grits remains puzzled about the Lt. Governor's fixation on changing the 2/3 rule to 3/5. He seems relentlessly focused on how many votes are required to block a bill, and it's true that Dems voting as a block could make a partisan stand against legislation, at least unless and until it's called up again during special session. Then they lose. (Hi, Wendy Davis!) But most bills don't hinge on partisan issues and Republicans don't vote as a unified block on everything.

Looking at the big picture, switching from 21 to 19 votes makes it easier for bills of any stripe to pass, meaning the Lege will likely pass a greater volume of legislation overall (of as yet unknown content) under the new rules. I can't tell you how many times criminal-justice reform bills have died in Texas since the turn of the century because they could get 19 but not 21 votes in the Texas Senate! From whatever your ideological perspective, if you're trying to pass a bill as opposed to kill one, the rules change made your job measurably easier. After all, there are many ways to kill a bill but just one way (with a few variations) to pass it.

One might think making it easier to pass laws is a good or at least content-neutral change, and that's generally my view, particularly for a large-state Legislature that only meets for 140 days out of every two years. But I'm puzzled to see a change that would have helped several bipartisan reform bills in recent sessions approved on a pretense of partisan implications. And I'm unsure if increasing the number of bills passed each session was Patrick's intent, even if it's a likely consequence.

No matter. My prediction: Increased intra-party division among GOP senators across an array of issues will result in uncomfortable dilemmas and unintended consequences for the new Lite Guv that the 2/3 rule might have avoided. Or perhaps it couldn't have; some of these looming fights have been a long time coming.

RELATED: Senate Criminal Justice Committee: Index property crimes to inflation, expand reentry and diversion programs for mentally ill.

Saturday, January 24, 2015

Is reticence of Nueces prosecutors to disclose evidence an institutional failure?

Grits had missed a story from earlier this month about the Nueces County DA allegedly withholding evidence in criminal cases. Reported the Corpus Christi Caller Times (Jan. 7):
The Nueces County District Attorney’s Office has shown a pattern of turning over evidence at the last minute and sometimes withholding it all together, defense attorneys testified Wednesday.

Attorneys for Trinity Ringelstein, who is serving a life sentence, argued prosecutors waited until the week before his capital murder trial to give them tapes containing more than 72 hours of phone conversations he had while in the Nueces County Jail.

Ringelstein was first arrested in 2012 on suspicion of fatally shooting Micah Seth Horn, 23, near a park in the 1000 block of Harbor Lights Drive. After a three-week trial, Ringelstein was convicted and sentenced to life in prison last year.

The law requires prosecutors to hand over evidence in a timely manner.

During the daylong hearing his attorneys sought to prove prosecutors have delayed turning over key evidence in several other felony cases.

District Attorney Mark Skurka, who did not attend the hearing, disputed the claims in a statement to the Caller-Times.

“The District Attorney’s Office provides evidence to the defense as required by law. We strongly deny these allegations,” Skurka said.
In addition to that case, "In June, then 105th District Judge Angelica Hernandez found prosecutors withheld evidence and acted in bad faith in a child endangerment case," the paper reported.

The story also pointed to whistleblower litigation by "Eric Hillman, a former Nueces County prosecutor [who is] suing the county for wrongful termination. Hillman claims his bosses instructed him not to tell the defense team he found a witness who would help a man he was prosecuting." In addition, "three other defense attorneys sat in the courtroom gallery and were ready to testify Wednesday but weren’t called to the stand for time reasons."

It's hard to understand - aside from their general lameness and historical unwillingness to discipline prosecutors - how Mr. Hillman's allegations, or Judge Hernandez's ruling, in particular, wouldn't trigger a disciplinary review by the state bar against prosecutors in the office.

Defense lawyers lost the motion at the trial court level but simply exposing such stories to disinfecting sunlight has a salutary effect.

MORE: See additional background on the Hillman case.

Friday, January 23, 2015

Senate Criminal Justice Committee: Index property crimes to inflation, expand reentry and diversion programs for mentally ill

The Texas Senate Criminal Justice Committee's interim report (pdf) to the 84th Legislature is out. Among the highlights:

"Despite recent media attention to two cases, adding intoxicated manslaughter to the list that cannot be granted probation is not necessary at this time."

The Lege should "Expand reentry programs and encourage the development of diversion programs for mentally ill offenders in order to prevent their entry into the prison system and ensure available treatment in the community."

They recommended indexing value thresholds for property offenses to adjust for inflation, a measure this blog has long advocated. In the context of state-level sentencing reform, it's particular cause for hope that Senators Joan Huffman and Charles Schwertner signed the recommendations with this item included.

Finally, they recommended "that the legislature support the enactment of a Texas Punishment and Sentencing Commission to thoroughly examine the non-traditional criminal offenses, consolidating those that meet the required elements for a criminal act into the Penal Code, while altering those that do not meet the elements to be considered a crime, to that of an administrative action or civil penalty."

See the full report for details.

RELATED: The interim report (pdf) from the House Homeland Security and Public Safety Committee is out and includes an extensive section on the Driver Responsibility surcharge, as well as the West disaster, emergency preparedness, and border security.

South Texas corruption scandal deepens, prison warden arrested, state rep implicated

Yikes! A private prison warden has been arrested in South Texas as part of an ongoing federal corruption scandal for allegedly bribing a corrupt JP to reduce bond in a case where state Rep. Terry Canales was the defense attorney. How's that for a pie in the face the first week of session? From the McAllen Monitor:
Federal agents arrested a former East Hidalgo Detention Center warden who they say had ties to a bond reduction scheme involving convicted former Hidalgo County Justice of the Peace Ismael “Melo” Ochoa.
Homeland Security Investigations agents arrested Elberto Esiquiel Bravo on Friday, as part of an investigation that claims he was an accessory after the fact in a bond reduction scheme involving Ochoa and defense attorney Terry Canales, a Democratic state representative from Edinburg, federal authorities said Tuesday.
Canales last week said he was the defense attorney for Luis Martinez-Gallegos, who was named in the criminal complaint against Sylvia San Juanita Vasquez as a defendant who had his $2.5 million bond reduced to $50,000, which allowed him to be released from the Hidalgo County Jail and deported to Mexico, allowing him to escape prosecution in the U.S.
Criminal complaints against Bravo and Vasquez — the first defendant charged federally in the case last week — do not identify Canales as being involved in the scheme. Rather, the complaints only say that a “local attorney” received a bribe alongside Ochoa, leading to his bond reduction and deportation.
Canales denies all guilt and said he only filed a routine motion for bond reduction. (See the full story for more detail from the warden's indictment.) Maybe that's the case. As Grits opined in the comments over at Breitbart News, whose editors regard this as the only topic in the world on which they find Eric Holder and the Obama Administration 100% credible, this is a "Bad look, but if he's not been charged by now he may not be. The feds have been at this for years, I doubt they'd have moved on Bravo unless a) they really had the goods, or b) their purpose is to squeeze him to implicate Canales, in which case by implication they presently have no evidence against the state rep."

Who knows? The feds could move on Canales tomorrow or their case could never make, though it's clear he's been under intense investigation. Probably the only thing that may be safely assumed at the moment is that Canales, a second-term Democrat who last session served on the House Criminal Jurisprudence Committee, enters the session politically wounded and personally distracted. The folks running that South Texas federal corruption probe are serious people who already sport quite a few politicians' heads on their trophy wall. Lord knows, guilty or innocent, if I were him I'd be nervous.

Dumb dog, why are you following me? SCOTUS to decide if cops can prolong traffic stop for a dog sniff

'You're the most presumin' dog that a human could know'
"[O]ne of the most shared experiences in our national culture is being stopped by the police while driving," wrote Rory Little at SCOTUSBlog, in an excellent summary and preview of oral arguments in Rodriguez v. United States, heard yesterday, which aims to decide whether a traffic stop may be prolonged without suspicion for eight minutes so a drug dog can be brought to the scene for a sniff.

Grits has long considered the nexus of issues surrounding drug-dog sniffs to be perhaps the most schizophrenic area of constitutional law: The Court has frustratingly insisted that dog sniffs aren't a "search" at your car on the side of the road but they are a search on the porch in front of your house. As search tech advances - there are numerous sensors that could mimic the dog's at-a-distance non-search search - the potential negative consequences from this outcome-driven approach become more severe. This case would be an excellent opportunity to bring the practice to heel. (Ba-dum-bum; insert mandatory audience groan here.)

Little's two pieces provide an excellent snapshot, ably presenting the legal posture of this pick-em case and its predecessors; give them a read. Here's the transcript from oral argument. MORE: See coverage from the Courthouse News Service and Bloomberg News. Reason highlighted this tidbit from Justice Sotomayor.

Thursday, January 22, 2015

Pretrial detention, not 'growth,' driving overincarceration at Nueces County Jail

Here's another Texas jail building proposal - this time out of Nueces County (Corpus Christi) - in which officials are claiming population growth is driving overincarceration. Reported KRIS-TV:
This is a critical time for the Nueces County Jail because it's now at 93% capacity.

"The jail has been overcrowded a number of years. When I say overcrowded we have almost reached our capacity," said Nueces County Sheriff Jim Kaelin.

The jail can hold 1,068 inmates. It's limited by law not to exceed 90-percent capacity in case more space is needed for problem inmates or if maintenance issue surface.

"We are 20 years behind the growth of the city and that is a long time for everything else to grow around you and for your jail not to grow," said Kaelin.
Once again, I've no doubt the jail is overcrowded, but let us not suffer the absurd declaration that it's overcrowded because "We are 20 years behind the growth of the city." Instead, let's review the facts.

In July of 1995, the Nueces County jail population stood at 892, of which 222 (25 percent) were being detained pretrial. In July 2014, the total population stood at 1,042, with 645 (62 percent) of those being detained pretrial. (See historical reports since 1992 here.) By comparison, the total 1995 population in Nueces County was 310,435, and 352,107 in 2013, or a 13.4 percent increase, while the jail population grew at a slightly greater rate - 16.8 percent.

Looking more closely, though, the 1995 jail population figure is artificially inflated because the jail was full back then of convicted offenders awaiting transfer to TDCJ, an issue that's been largely resolved in the 21st century since the state-prison system tripled in size. There were 334 convicted felons in Nueces awaiting transfer to prison on July 1, 1995, and only 132 in July 2014. Adjusted to account for those, the remaining jail population grew more than 50 percent.

Virtually all of the difference in the Nueces County jail population is accounted for by increased pretrial detention, which as we've discussed vis a vis Kerr County is a policy decision by judges and prosecutors, not a function of "growth." And keep in mind this is a period when crime rates dramatically declined.

Finally, the Sheriff speculated that extra jail space "could be paid for in part by money that comes from housing federal inmates." Any fiction that the jail will pay for itself in the current, over-saturated Texas incarceration market must be snuffed: Ask voters in Lubbock or Waco how that story turns out!

Perhaps, when it's debated publicly, Nueces County voters will support the policy decision to incarcerate so many more people pretrial, including hundreds of misdemeanor defendants. Or maybe they'll think scarce jail resources should be deployed more frugally. But portraying the need as stemming from simple population growth misrepresents the demand for more beds, which results from choices by elected officials, not some cosmic inevitability because there are sooo many more criminals these days.

Kerr County Sheriff defends jail bond vote; Grits responds

After Grits critiqued the numbers behind the proposed Kerr County jail bond vote in May, Sheriff Rusty Hierholzer sent around an email attempting to justify the proposed new debt and accompanying higher taxes. His direction "please forward to all" meant it eventually found its way to me, so thanks to the thoughtful reader who passed it along. Find his letter below the jump, followed by Grits' reactions.

Tuesday, January 20, 2015

New Juvenile Justice committee in Texas House; other rules changes

Grits finally had a moment to go through this session's rules for the Texas House of Representatives, as approved in HR 4. (Read them here for yourself.) Here are some changes which may interest Grits readers:

Juvenile justice was taken out of the Corrections Committee's domain and given its own committee: Juvenile Justice and Family Matters, which will have seven members. (Chairs and members haven't been named yet.) As a practical matter this was probably a good move: The Corrections Committee has a big enough task with oversight of the adult system to delve into juvenile stuff in depth during the brief 140 day session. But there may also be a political angle to the division given that Sen. John Whitmire and Tony Fabelo are openly talking about shuttering more youth prisons. The appointment of the chairman may tell a lot about whether the Speaker agrees with Whitmire regarding further downsizing at the Texas Juvenile Justice Department.

The House Criminal Jurisprudence Committee will have seven instead of nine members. I liked it with nine. C'est la vie.

Bill analyses must henceforth include "a statement indicating whether or not the bill or resolution expressly creates a criminal offense, expressly increases the punishment for an existing criminal offense or category of offenses, or expressly changes the eligibility of a person for community supervision, parole, or mandatory supervision."

Bills that create new crimes, increase penalties, change probation or parole eligibility must now say so in the bill caption. IMO they should have gone further by requiring those bills to have a fiscal note, meaning they'd have to be accounted for in the budget. In the past, the Legislative Budget Board insisted nearly all bills increasing penalties or creating new crimes would have no significant fiscal impact on the state, though the cumulative impact off passing dozens of new crimes and "enhancements" each session has been enormous.

This will be helpful: The Parliamentarian must now give written explanations for rulings on points of order, including cites to precedent. The whys and wherefores of point of order denials have long been a mystery - maybe this will promote more consistency.

It's regrettable that this change was necessary: "The committee coordinator may exclude from the committee coordinator's office or refuse to interact with a member or a member's staff if the member or member's staff engages in abusive, harassing, or threatening behavior." Wouldn't you love to learn the backstory behind that new rule?

The General Investigative and Ethics Committee was given additional authority including the power to propose articles of impeachment and to investigate misconduct by political appointees at agencies. Given what's happened recently at the Department of State Health Services and the Legislature's run ins with UT regent Wallace Hall, this could be a highly significant development.

The Technology Committee was eliminated and science and tech issues were handed to the renamed Government Transparency and Operation Committee. The language describing their turf is theoretically broad enough to include forensic science but DPS crime labs and the Forensic Science Commission remain under the jurisdiction of the Homeland Security and Public Safety Committee, whose jurisdiction didn't change.

The rules further limited access to media credentials and created a method for legislators who want to challenge a reporter's credentials if they engaged in lobbying or advocacy on the floor. I've never heard of that being an issue, so unless there was some episode last session of which I'm unaware, this seems like a solution looking for a problem. UPDATE: A reader reminds me the media credential issue was in response to Michael Quinn Sullivan, FWIW.

Monday, January 19, 2015

Might declining oil prices boost TDCJ employment, and for how long?

The precipitous drop in oil prices over the last couple months has the energy industry contemplating layoffs while delighted consumers pay half the price at the pump for gasoline as they did just a few months ago. There's been much speculation about what falling oil prices may mean for the Texas economy and the viability of capital-intensive fracking operations (not to mention the international geopolitical implications of low oil prices, which are immense).

It occurred to me from reading the business press on this topic that it's possible suspension of high-cost production could offer a silver lining for rural Texas prisons which have been competing, unsuccessfully, for prison guards against much higher paying oil field jobs. If low oil prices force significant layoffs (and producers are already taking rigs offline), then perhaps some of those workers will now seek employment at TDCJ, providing short-term relief for dangerously understaffed rural prisons.

Of course, if and when oil prices rise again - which will likely have more to do with international geopolitics than any strategy by domestic producers or Texas political leaders - TDCJ will be right back where it started, leaching large numbers employees to the oil and gas industry. Oil field work is much more dangerous than being a prison guard (or a police officer, for that matter) but pays more and doesn't involve interacting with criminals or butting heads with an ossified and anachronistic bureaucracy. When oilfield jobs are plentiful, they're much more attractive than working in a prison. In the near term, though, with fewer such jobs in the offing, Grits expects TDCJ's employment numbers to receive a positive boost.

If that happens, there will likely be legislators suggesting the state de-prioritize TDCJ's proposed staff raises, which are aimed at enticing more employees to sign up as guards and to stay on the job once they've been trained and gotten a taste of working in a prison. With Texas on a two-year budget cycle, deferring those raises would be short-sighted, especially when the state can afford them, having just received an especially sanguine revenue estimate.

The state should use this short-term respite to plan for the near inevitability of oil prices rising again, improving pay for prison staff and closing the most understaffed units entirely. When oil prices go back up, the effects on prison employment will likely be rapid and brutal. Legislators and the agency may have been granted temporary relief on this front thanks to rapid deflationary pressure on oil prices. But that doesn't acquit them from making tough choices. It just means they'll have no excuses if and when prices rise again and the agency faces another, perhaps even more severe understaffing crisis than it faces today.

Sunday, January 18, 2015

Blackburn on flawed forensics, indigent defense

My friend and former employer Jeff Blackburn of the Innocence Project of Texas stopped by today for a 20-minute chat on the future of innocence work, flawed forensics, recording police interrogations, and indigent defense, recorded and uploaded here (wav) for anyone interested. I'm afraid Grits skimped a bit on production values this go round - no bells and whistles, just an interview - but regular readers should find the content interesting.

Corrections Committee: Expand rehabilitation and education programs at TDCJ

The Texas House Corrections Committee this week put out its interim report (pdf) covering the following topics:
  • Oversight of TDCJ, the Board of Pardons and Paroles, and TJJD
  • Review of mental health services in the justice system
  • Evaluate 'pay for performance' model for privatizing juvenile justice
  • School discipline and the criminal justice system
There's a decent overview of operations of monitored agencies, including a good discussion of administrative segregation (solitary confinement) in adult prisons. Notable recommendations on the adult side (just a few excerpts, there were quite a few more) included:
  • The legislature and the Texas Department of Criminal Justice should look for more ways to focus a larger component of our correctional budget on rehabilitative investments, as opposed to simply inmate confinement.
  • The legislature and the Texas Department of Criminal Justice should consider ways to expand inmate educational and vocational training programs within the prison system as a core component of effectively rehabilitating offenders.
  • The Texas Department of Criminal Justice should explore new and innovative ways to increase access to prisoner visitation programs in order to fully prepare inmates for the re-entry process, including the potential use of teleconferencing as a visitation option.
Some of the recommendations regarding TJJD seemed oblivious to suggestions to further radically downsize or eliminate youth prison facilities. The report appears to assume they won't just continue to operate but may have programming bolstered - makes you wonder if the House and Senate are on the same page on that question.

On the mental health front, the suggestions seemed tepid and inadequate given the problems faced by the state in that arena. And the school discipline charge didn't result in significant recommendations.

These are just casual first impressions from initially skimming the document. Read the full thing (pdf) for more detail.

Thursday, January 15, 2015

'DNA record fee' deemed unconstitutional because funds hijacked for other uses

From her perch over at the Harris County Public Defender, Jani Maselli-Wood continues to peck away at the litany of court costs assessed against criminal defendants. Texas Lawyer has a report (Jan. 12) on her latest exploits:
Jani Maselli Wood, a public defender in Houston who is waging an appeals court battle over the constitutionality of court costs, recently won a favorable majority opinion knocking out two court costs levied against her client.

On Dec. 30, a panel of the First Texas Court of Appeals in Houston modified criminal convictions against Wood's client Osmin Peraza to delete a $250 "DNA record fee" from the judgments from each conviction on the ground that it is an unconstitutional tax, and also deleted a $50 "sheriff's fee" for "serving capias" because there is no basis in the record to support the charge. The court otherwise affirmed the judgment against Peraza, overruling Peraza's contention that the trial court erred when denying his motion to withdraw his guilty pleas to the two charges of aggravated sexual assault.

Wood, who joined the Harris County Public Defender's Office in 2011, was selected in 2014 as one of Texas Lawyer's Winning Women for her work challenging the constitutionality of court costs. She wants the money that criminal defendants pay in court costs to directly benefit the court system.

The First Court panel deciding Peraza v. Texas consisted of Justice Terry Jennings and former Justice Jim Sharp, who lost a reelection bid in November 2014. In a concurring and dissenting opinion, Justice Harvey Brown agreed with the majority that the trial court did not abuse its discretion in denying Peraza's motion to withdraw his guilty pleas and that the "unsupported" $50 sheriff's fee should be struck. However, Brown disagreed that the DNA record fee is unconstitutional.

Wood said she was gratified by the court's opinion on the court cost issues.

"It's the first time they have ever held it's unconstitutional under the separation of powers doctrine, that the courts are not tax collectors," Wood said. "It was the first time they've gone along with my theory that you can't fund general government with court costs."
The $250 "DNA record fee" in particular was deemed unconstitutional because the state doesn't use it for what they say they're taking it for. Instead, money from the DNA record fee is split between the state highway fund and the general fund of the "criminal justice planning account," neither of which are "necessary nor incidental to the trial of a criminal case," according to the First Court ruling.

If courts begin deciding it's unconstitutional to assess fees for one purpose and use the money for another, the entire house of cards underlying Texas' budget edifice could quickly tumble, with implications far beyond just court costs. But that's speculation; for now this is a single Court of Appeals adopting this view on two particular fees. Jani's right to celebrate the win (congratulations!) but there are lots of vested interests out there with a stake in keeping that house of cards upright. And they'll all probably take a shot at her before her victory is ever extended statewide. Things get serious quickly when you start messing with people's money.

Lege-commissioned report suggests indigent defense caseload guidelines

Pursuant to HB 1318 passed last session, the Texas Indigent Defense Commission commissioned a study (pdf) of indigent defense caseloads by the Public Policy Research Institute at Texas A&M. Analyzing data from several sources, they concluded:
for the delivery of reasonably competent and effective representation attorneys should carry an annual full-time equivalent caseload of no more than the following:
  • 236 Class B Misdemeanors
  • 216 Class A Misdemeanors
  • 175 State Jail Felonies
  • 144 Third Degree Felonies
  • 105 Second Degree Felonies
  • 77 First Degree Felonies
As I read this, attorneys whose caseload includes a variety of case types could weight them to see whether their annual total exceeds the guidelines. E.g., for somebody handling 140 Class B DWIs, 25 third degree felonies, ten second degree felonies, and five first degree felony cases in a calendar year, the calculation would run:
140/236 + 25/144 +10/105 +5/77 =  .927
Using this method, an attorney would fall under the guideline maximum if this combined ratio is less than one. So, with 180 cases, that person would come in under the max caseload recommendation, even though they handled more than the 150 cases recommended by the American Bar Association in its longstanding guidelines.

By contrast, another attorney may take fewer DWIs but focus more on drug possession. Say this person has 28 DWI and pot cases combined (Class Bs), 30 clients accused of possessing less than a gram of a controlled substance (state jail felony), 30 clients with third degree felonies, 20 facing second degree felony charges and 30 charged with first degree felonies. In their case, the calculation would be:
28/236 + 30/177 + 30/144 + 20/105 + 30/77 = 1.076
So that lawyer's caseload would exceed the recommended guidelines, even though at 138 cases it would fall under the old ABA standard of 150. More serious cases typically require more time so it makes sense to weight different types of cases in this fashion. (That said, I have no way to judge whether these are the correct weights; they don't seem too far off, but there a numerous assumptions embedded within those figures.)

Regardless, counties should initiate reviews internally to see how many attorneys in their system are exceeding these guidelines - I bet there are some in most every jurisdiction - and consider means to distribute cases more broadly and/or support a public defender office to stabilize the load.

It would also be interesting to see someone - maybe the Texas Indigent Defense Commission, which has access to the data - take indigent case pay rates for different counties and apply them to these caseload guidelines to see what a wheel attorney limited to such a caseload might make. The report declared that statewide Texas attorneys receive "current average compensation of $608 per non-capital felony and $198 per misdemeanor" for indigent representation. But you'd need data broken out in more detail to figure out pay scales under the suggested guidelines.

There's lots of detail in this 114-page report (pdf) and Grits may come back to it later, but I wanted to at least get the link out there for folks who're interested.

MORE: From the Texas Fair Defense Project, which noted that "According to data collected by TIDC for 2014, appointed attorneys or public defenders in all five of Texas’s most populous counties (Harris, Dallas, Tarrant, Bexar and Travis counties) had caseloads at least two times higher than the caseload limits published by the Commission today."

AND MORE: From the Houston Chronicle's Brian Rogers (Jan. 15), who included this passage on the report's legislative implications:
"Texas has a problem with attorneys handling so many criminal cases that they cannot provide effective representation to their indigent clients," said Senator Rodney Ellis (D-Houston). "Taking over 1,000 appointed cases in a year, for example, makes effective representation nearly impossible."

Ellis has introduced a bill this session that would force the judges who appoint lawyers to indigent cases to abide by guidelines limiting how many cases the attorney is handling.

"I applaud the work of the commission," Ellis said. "It's time for us to get down to the serious work of implementing these guidelines."
Rogers concluded the story with the ominous caveat that, "Critics of lower caseloads note that increased time and investigation means the county pays more per case." Maybe. Or maybe they should have been doing that investigation anyway and should now begin doing the job they're paid for - zealous representation and all that entails. (See more on performance guidelines for non-capital defense representation.) Perhaps those failures explain why clients with appointed counsel tend to get worse outcomes, especially at sentencing, compared to clients represented by public defenders or retained counsel.

Once we see some of the data this post asked for, we'll be able to better judge whether these caseloads imply rates for indigent representation need to be raised. Maybe so. Or, perhaps lawyers who rely solely on indigent cases for their income simply should make less money than, for example, lawyers in Houston who bill the county for 600-800 cases per year. This study doesn't tell us anything about appropriate pay rates, per se. It describes the maximum caseload for which a lawyer can perform basic due diligence on the cases without being dubbed ineffective, which is a low bar, indeed. The economics of indigent criminal defense - with privatized supply but a socialized single payer system and low information about attorney quality on the part of both the client and the payer - are a separate matter from what qualifies as a lawyer's due diligence in a criminal case.

Grits thinks of these caseload guidelines, like the state bar's performance guidelines, as analagous to the advice to say the ABCs in your head while you wash your hands. Doing so makes you wash them more thoroughly, keeping your hands under the water for just a few seconds longer than most folks might do instinctively. That's what these guidelines are about. Yes, you could plea the case without any investigation and make more money. And people like making money so there's an incentive to do that. But you're an attorney, not a vending machine. Your job is to zealously represent your client, not methodically shove them over the edge of a precipice whenever the state puts a quarter in your slot.

Wednesday, January 14, 2015

Kerr County voters to consider 75% jail capacity expansion in May

For a while, Texas' jail building spree seemed to recede, though there are still a few projects active. After all, as of Nov. 1, 2014 Texas jails had a roughly 42 percent vacancy rate, with 67,157 out of 95,309 beds filled statewide. So it's worth mentioning that Kerr County in May will hold the first significant Texas jail bond vote in several election cycles in order to expand local jail capacity by 75 percent. Reported Zeke MacCormack at the Express-News (Jan. 12):
Kerr County Commissioners signaled their intent Monday to seek voter approval in May for a $15 million bond issue to expand the county’s 192-bed jail, where periodic overcrowding has long been a problem.

Plans call for a 144-bed wing to be built on the current jail’s west side, in addition to expanding existing kitchen and laundry facilities, adding restrooms in the sheriff’s office lobby and creating a larger area for its communications staff.

The cost estimate of $14.8 million includes $12.5 million for construction, $990,000 in professional fees, $750,000 for contingencies and $400,000 for equipment and furniture.

If voters approve the project, Wayne Gondeck of DRG Architects said, its actual cost won’t be known until bids are sought next fall. The new jail could open in 2018.
The bonds would "add about 1.75 cents per $100 to the county’s property tax rate" for twenty years assuming property values rise as much as projected over time, MacCormack reported, though one wonders how they can predict that if the jail's "actual cost won't be known until bids are sought." Regardless, as of December 1, the county reported to the Commission on Jail Standards that 129 of the county's 192 beds were filled, down from 160 on July 1, 2014.

Kerr County's incarceration rate is higher than the statewide average in an era of declining crime. It seems highly likely new jail construction could be avoided or at least delayed if local officials better used tools available to them, from judges issuing more personal bonds to prosecutors facilitating pretrial diversion to police officers and deputies issuing citations, as authorized under law, for certain low-level Class B misdemeanors.

Kerr County had a population of just more than 40,000 in 1995 and a little less than 50,000 in 2013, according to the census, growing by roughly a quarter over those two decades. By comparison, the Kerr County jail population more than doubled between August 1995 (69) and August 2015 (157). So jail population growth isn't a function of the county's population growth, it's caused by decisions mainly by local prosecutors and judges to use the jail more aggressively than in the past for pretrial detention. In 1995, upward pressure on the jail population came more from detaining convicted felons awaiting transfer to TDCJ than felons awaiting trial; by 2015 that dynamic had flipped. Pretrial detainees went from 25 to 69 percent of a twice-as-large jail population.

Jail construction, at its root, is rarely a conservative or liberal issue. Consider: Is expanded pretrial detention liberal or conservative? While people think of conservatives as "tough on crime," in a sense there's nothing more "Big Government" than a jail, which is an institution designed to exercise total control over people's lives. Meanwhile, expanded pretrial detention empowers the government in plea bargains. And unnecessary jail expansion is frequently a major driver of local tax hikes, as voters in McLennan County could well attest.

Once a jail is built, it can be expensive to staff the extra space, creating ongoing budget burdens beyond just paying back the debt. For that reason, jails can become controversial among taxpayers, even if every Sheriff seems to want to leave behind their name on a new wing when they go. One recalls in Tyler voters rejected four different jail bond proposals on three different ballots, with competing "Tea Party" groups taking different sides, before county officials received the nod for radically scaled back plans.

Who knows if that kind of opposition will arise in smaller Kerr County? At a minimum, Grits hopes locals subject the proposal to close scrutiny and reject any entrepreneurial scheme that assumes future contract revenues (no hint of that from the press coverage). But more than that, Kerr County voters should take the opportunity to insist that county commissioners and the sheriff, as well as local prosecutors and the judiciary, do all they can to reduce unnecessary jail use, supporting staff and programming for community supervision as ardently as brick and mortar jail cells. Arguably, as in Smith and Harris counties, perhaps the best way voters can convey that message is to reject jail bonds and demand more emphasis on diversion programming before approving new construction debt.

Tuesday, January 13, 2015

Will PREA spur Texas Lege to raise age of criminal culpability?

Editorial writers at the SA Express-News think (Jan. 12) that pressure to comply with the Prison Rape Elimination Act may spur the Texas Legislature to raise the age at which criminal defendants may be charged as adults for their crimes. The staff editorial concluded:
Since 18 is the age of majority for Texans in other aspects — deemed mature enough to marry, vote and enlist in military service on their own, for instance — it makes little sense to view a 17-year-old as mature enough to weather adult trial, sentencing and imprisonment.

This is exceedingly arbitrary.

Raising this threshold would coincide with Texas’ need to comply with the Prison Rape Elimination Act, or PREA, which includes a requirement that those under 18 be separated from the adult prison population.

This requirement does not occur in a vacuum. Youths younger than 18 are abused sexually and physically more often than those older, University of Texas Professor Michele Deitch told McGaughy. And they are 36 times more likely to commit suicide.

Gov. Rick Perry has resisted complying with PREA. That must change in the new administration. We note, however, that the 14 youths who were 17 in the Bexar County Jail last week were separated from those 18 and older.

Texas can rightly crow about its progress on criminal justice. It should add raising the age of an adult, when it comes to being prosecuted for crimes, to 18.

Monday, January 12, 2015

Squeeze in a visit? Weekly visitation hours at Harris jail 1/4 those in Tarrant

Here are a few relevant data on inmate visitation from Houston and around the state as reported by James Pinkerton at the Houston Chronicle (Jan. 7)
For years, visits have been a frustrating experience at the Harris County Jail, where visitation policies are among the most restrictive of the state's five largest county jails. And while Harris County's jail system is the largest in Texas, with an average daily population of 8,700, it has lagged in adopting technology to improve visitation that other counties have embraced, including video visitation for inmates.

"I have to take three buses to get over here to see my husband, and they give me 15 minutes and I can't hear half of what he says," said Lawhern, who lives in Pasadena and tries to visit Trevino twice a week. Lawhern said that because she often can't hear what her husband said, she must follow up her visits with a collect phone call from her husband, yet another expense for a woman who is simply trying to support her spouse.
On the case for maximizing visitation opportunities:
Ohio prison officials, in a 1999 study, noted that visitation not only helps efforts to rehabilitate inmates while they are locked up, but provides a bigger benefit after they are released.

"The prisoner who has maintained contact with supportive individuals such as family and friends has a 'safety net' when he or she returns to the community," wrote Reginald Wilkinson, director of the Ohio State prison system. "Family and friends provide a feeling of belonging to a group. They often help released offenders seek and find employment and conduct themselves in a positive, constructive manner after release."

In 2011, the Minnesota Department of Corrections published an exhaustive study concluding that "prison visitation can significantly improve the transition offenders make from the institution to the community." The study noted that any visit reduced, by 13 percent, the risk of a new felony conviction and dropped by 25 percent the risk of violating release conditions. Visits from clergy, fathers, brothers and sisters and in-laws were the most beneficial to the inmate's future conduct after release, the study found.
In this case, it was Democratic Sheriff Adrian Garcia who reduced visitation hours in Harris County to among the  lowest among large Texas jurisdictions:
Garcia cut visitation to the county jail in 2011 - from seven to four days - a move the sheriff said at the time would save $1.3 million annually in overtime pay for detention officers as the county faced a budgetary crisis. Asked why the visitation was not restored as county finances improved, Director of Public Affairs Alan Bernstein said there have been no recent complaints from the public.

Civil rights advocate Amin Alehashem, staff attorney and regional director for the Texas Civil Rights Project-Houston, expressed concern over limited jail visits.
Of course, they have had longstanding complaints about failures of phone systems at the visitation center, according to the article, and they've yet to fix those, either. So quien sabe?

Regardless, visitation is handled differently in different Texas counties, according to Pinkerton's first-cut survey:
Harris County allows inmates four 20-minute visits each week, to take place during the 21 hours of visitation offered over four days.

In contrast, Tarrant County Jail inmates can receive up to two visits a day in Fort Worth lockups, where visitation is allowed seven days a week from 9 in the morning to 9 at night, or a total of 84 hours a week. The Bexar County Jail also limits visits to four days, but offers a window of 30 hours of overall visiting time during the week.

Since 1975, Texas law has required that jails provide a minimum visitation of at least two visits - one during a weekday evening and one on weekends - and several mid-sized counties, including the Neuces County Jail in Corpus Christi and El Paso jails, have limited visits to two days a week.
Toward the end, Pinkerton quoted a Travis County Sheriff official waxing favorably about video visitation without mentioning any of the controversy it generated, either from listening in on conversations with defense counsel or the bait-and-switch at the commissioners court which was originally told face-to-face visits would continue. Grits upbraided him mildly in the comments for not fact checking those assertions ("Google is your friend"). Otherwise, the story was a good update on an important, rapidly emerging issue.

Saturday, January 10, 2015

Texas police misconduct roundup

Grits makes no comprehensive effort to track police misconduct around the state but can't help but notice Texas has witnessed quite a few extreme and remarkable cases over the last month or so. Here are a few that jumped out:
  • A Dallas police officer who was accused last month of sexual assaulting a woman in his squad car killed himself yesterday.
  • A 23-year old cop in Victoria was fired after dashcam video of him tackling and tasing a 76-year old man went viral.
  • From the Express-News (Jan. 9), "Late Thursday, San Antonio Police Department Officer Konrad Chatys was booked on allegations he stole items from a couple while on duty. On Friday afternoon, Billy Torres, 40, a Bexar County Sheriff’s Office deputy, was arrested on a charge of burglary of a building."
  • In Laredo, "A South Texas sheriff's deputy and her brother have been charged with conspiracy in an indictment accusing them of drug trafficking."
  • It was reported last month that an SAPD officer was fired for dereliction of duty last August after dashcam video showed her failing to respond to some two dozen calls, including driving away from a shooting to which she should have responded.  
  • Two Corpus Christi police officers were disciplined for excessive force after dashcam video caught them slamming a handcuffed murder suspect's head into the side of a squad car. One officer resigned, the other has been suspended without pay.
  • In December, "A police officer in Cedar Park [was] fired for being dishonest during an investigation into his friendship with a man suspected of multiple sexual assaults." As summarized at, “According to the news report, the police department said that not only did they fire the officer for being dishonest, but because he accessed police databases about the suspect without legal reason to do so. The suspect has a history of sexual assault and is characterized in other reports as a potential 'serial rapist.'”
  • In Houston (Jan. 8) "Bungled murder investigations by the Houston Police Department not only allowed killers to walk free, but may harm the ability of detectives to solve other slayings, warns an independent arbitrator," who concluded "the evidence demonstrated that it's allowed murderers to remain on the streets; caused unnecessary frustration and heartache to the families of victims; and led Houston's citizens to question the department's integrity."
  • In Round Rock (Dec. 22) "A Round Rock man has sued the city’s police department in federal court and accused officers of using excessive force during a 2012 incident." Cops showed up at a domestic disturbance, went to the wrong house and allegedly kicked and beat the innocent homeowner before releasing him. The man was acquitted at trial of interfering with a police investigation. "The suit names 10 officers as defendants."
  • A woman has sued DPS and four state troopers over a 2013 roadside cavity search.
  • Last month, Joe Edward Cummings, a former jailer and patrol officer with the Denton County Sheriff's Office was arrested on child pornography charges.
  • A 22-year veteran at the Brownsville PD was arrested on theft and forgery charges (Dec. 22). 
  • A Harlingen PD officer was indicted in December for money laundering
  • A former reserve officer with the Bryan police department was charged with possessing child pornography
  • In Fort Worth, a "police officer has been fired for allegedly failing to show up at a court for an aggravated kidnapping trial and giving conflicting information about his role in the case." Prosecutors did not want Officer Royce Brown "to testify in court after learning that he had a prior suspension from the department for untruthfulness."
  • In El Paso, "A young man left a quadriplegic when he was shot by an off-duty El Paso police officer in 2010 has died." The officer who shot him was indicted by a grand jury but remains on duty with charges pending.
While disheartening to read this litany of ignominious incidents, it's at least good to see dashcam video contributing to greater accountability in several of these cases, a development that IMO argues for expanding the use of cameras both to police bodycams and recording custodial interrogations at the police station. Most Texas departments got dashcams via legislation state Sen. Royce West carried back in 2003, which included a voter-approved $18 million bond issue for police to purchase equipment, and West has filed legislation this session to authorize grants for police bodycams.

Though some of these are new developments in old cases, it's unusual to see this many serious police misconduct stories crop up in Texas news outlets in so short a span. I wonder if that's because of an actual uptick in incidents or because, in the wake of renewed national focus on police misconduct, the media are simply more likely to cover such episodes than before events in Ferguson and Staten Island?

Friday, January 09, 2015

Stand up to union bullying over budget busting SA police contract

It's the age-old question: Best to appease bullies or stand up to them?

In San Antonio, the local police union has launched attack ads against the city manager over stalled contract negotiations: the city can't keep up with pay and benefits without raising taxes and/or cutting other, essential city services and, predictably, the union won't budge an inch. Mayoral candidate and current state Rep. Mike Villareal wrote the other day that, "The San Antonio Police Officers Association paid for ads that stirred public anger over City Manager Sheryl Sculley’s compensation package — a red herring. Questioning the city manager’s salary is legitimate; pretending that it’s relevant to negotiating a new contract for first responders is not."

Remarkably, "Currently, the city estimates 67 percent of the city’s general fund goes to support public safety," wrote Villareal, which is "crowding out all other services, such as street repair, parks and libraries."

Former mayor Henry Cisneros recently ascended to head the local Chamber of Commerce. In response to the attack ads, that group began running (by comparison, mild) response ads defending the city manager and calling for fiscal restraint on police pay and benefits. Reported the Express-News (Jan. 5):
Cisneros also said the chamber is sponsoring 30- and 60-second radio advertisements and publishing an ad in the Thursday edition of the San Antonio Express-News that calls on both sides to rekindle talks. The radio ads say there is “deep respect” here for public safety personnel and that San Antonio has one of the best city managers in the country. Though the ads don’t mention her by name, they say City Manager Sheryl Sculley has put the city on a prudent fiscal course.

Through the ads, the chamber says public safety personnel need to share in the rising costs of health care, that the city needs to maintain the cost of public safety at “fiscally responsible levels” and that extraneous benefits for sworn personnel — from tuition reimbursements to a legal fund — that are outside “the norm” need to be curtailed.
Officers currently are working without a contract and the city has sued to invalidate an "evergreen" clause that keeps the old terms in place for ten years if they can't come to a new agreement. The union says they won't rejoin negotiations unless the city drops the suit.

While some council members have suggested cratering on the suit (politicians fear campaign ads the way two year olds fear monsters under the bed), quite frankly I'd like to see the lawsuit go forward just to find out an answer to the question. If a politically powerful police union convinces a city council to approve an irresponsible contract that causes the city's budget to balloon (Austin is in the same boat), that sort of evergreen clause means future councils can't change it even when the contract expires. And ten years is far longer than city council terms so, in essence, it prevents city councils from governing if they cannot influence 2/3 of the city budget for their entire terms! Even if the suit were dropped, the city should insist there's no such provision in any future contract, ever.

OTOH, while it's fine to call for a return to the negotiating table, if the city wins the lawsuit there's also just the option of setting salaries and benefits without one, as happens routinely in the overwhelming majority of Texas police departments.

In recent years there's been a major effort to confront bullying in schools. But bullies don't stop when you just hand over your lunch money, they come back the next day for more. Most of us learn those lessons on the playground and the city council in SA would do well to remember them today.

Thursday, January 08, 2015

Are Texas youth prisons now small enough to drown in a bath tub?

Grover Norquist famously suggested he wanted government downsized to the point where it could be drowned in the bath tub. Remarkably, that may end up being exactly what happens at the Texas Juvenile Justice Department.

At the Houston Chronicle, Mike Ward reported (Jan. 7) from the Texas Public Policy Foundation legislative conference this week that, "After years of reforms in Texas' juvenile justice system, officials now appear headed toward the next big step: further downsizing the system of state-run lockups or even junking it altogether." The suggestion is to double down on the trend since 2007 of punishing and/or rehabilitating more juvenile felons at the local level. Notably, juvenile crime dropped precipitously during this period while the juvenile incarceration rate plummeted, calling into question any direct link between incarcerating juveniles and reducing the crime rate:
Even as Texas was reforming its juvenile justice system in recent years, the number of youths targeted for probation programs and incarceration has declined by 31 percent in six years, officials said. Fabelo said that is part of a national trend: Florida's juvenile offender numbers have declined by 35 percent, California by 48 percent.

While the state-run youth corrections system held more than 4,200 offenders seven years ago, the number is now down to about 1,000 in five lockups.
That California and Florida saw even bigger juvenile crime drops tells you this is a result of larger crime reduction trends, not necessarily any specific Texas policies. But it does present an opportunity to shutter more and perhaps even all the state's youth prisons.
"That's where it's heading, yes, to counties keeping more youths in local programs, even some of the ones who are in state custody now, and to more outcome-based programs," said Tony Fabelo, a national criminal justice expert overseeing the national study by the Council of State Governments.
Citing statistics from the soon-to-be-released report that tracked more than 220,000 juvenile offenders for up to five years, Fabelo said Texas spent nearly $134,000 a year per youth held in a state juvenile lockup in 2012.
"In 2014, the 800 youth who were committed to (state lockups) cost $162 million, enough to educate almost 20,000 students for a year," he said, noting that statistics show 85 percent of the incarcerated youths are arrested again within five years - and 54 percent of those are sent to adult prisons.
"Fifty-seven percent of the population (in state youth lockups) are adults" aged 17 or 18, most of them locked up for serious felony crimes, he said. "That says a lot about why changes are needed."
Grits cautiously supports further downsizing, especially if the money follows the kids downstream. Long-time readers will recall that a "blue-ribbon panel" created by the Legislature after the 2007 sex scandals recommended (pdf) "using a regionalized system of care that supports the use of small facilities, that admits youth to TYC using research-based risk assessment and classification, and that provides specialized treatment for youth and families." If that's where this ends up, then better late than never.

One caution: I for one don't have a good sense of what exactly is happening with kids diverted from state facilities in recent years and there don't seem to be good benchmarks to let us know whether the locals are generating better outcomes than the state on education, recidivism, protecting kids from predators (whether staff or other inmates), etc.. For example, there's no independent entity comparable to the TJJD Ombudsman to whom kids in county detention can bring problems or from whom they can seek redress. There's a chance that the big-picture juvenile crime decline - which again, I don't think was caused by Texas-specific policies - could be masking poor outcomes. State institutions have been studied nigh unto death - and perhaps Fabelo's new study will be the fatal blow - but it's not clear to me we can say that the county-run lockups are superior, just that they're a) cheaper and b) out of sight, out of mind.