When prosecutors have too much time on their hands, and other stories

Here are a few odds and ends of which Grits readers should be aware, even if your correspondent hasn't had time to focus as much as one might like on the blog in recent weeks:

Too many prosecutors with time on their hands
Travis County keeps old misdemeanor arrest warrants on the books that are 30 years old or more. For what possible purpose, one wonders? The story arises because, with the number of hot-check cases rapidly declining, prosecutors in the hot-check division don't have anything better to do and have begun to try to collect on these old cases. Maybe the County Attorney should just reduce staffing in that division commensurate with the decline in caseload instead of sending them on fishing expeditions for old unpaid tickets. Just a thought.

Quis Custodiet Ipsos Custodes
A police officer in Dallas has been indicted for an on-duty shooting for the first time in 43 years. But an indictment is one thing, conviction another. In Fort Worth, charges were dismissed against a cop who shot a man holding a barbecue fork after the original charges resulted in a mistrial. The state trooper indicted for perjury after Sandra Bland's arrest and death in the Waller County Jail, but charges were dropped this week. Not only is it difficult to prosecute bad cops, it can be damn hard to fire them: In San Antonio, a once-before-fired officer who'd been returned to the force by an arbitrator, was once again given his job back through arbitration after he'd fled the scene of a crime where his gun was used to shoot someone and a bag of cocaine was found in his truck. He failed to report his involvement to his supervisors and misled investigators at the scene, but was let back on the force. About the only way Texas cops are ever successfully prosecuted is if the feds do it, like with this guy.

Bill death doesn't halt bail reform
Texas legislation to require courts to use risk assessments when setting  bail amounts died this year as an industry which has in essence captured its regulators demonstrably exercised control over the legislative process. But arguments against the practice aren't going away and neither is the bail litigation in Harris County, which looks like it could end up at the US Supreme Court before all is done. As evidenced in the next item, Texas' hasn't fared well there, recently, fwiw.

Texas cases defined SCOTUS capital punishment debate this year
Commentators from the left and right all agree that Texas cases - especially ones where the Court of Criminal Appeals has embarrassed the state over reactionary, reflexively pro-government rulings that fly in the face of reason and common sense - are more or less defining the terms of debate over the death penalty these days at the US Supreme Court.

Forensic (not-quite) Science Update
How much science is in forensic science? Less than you think. But the tuff-on-crime crowd clings to unscientific (or more accurately, pre-scientific) reliance on longstanding forensic practices with higher-than-zero false positive rates, many of which have been portrayed as all but foolproof in courtrooms across America. This podcast gives a good overview of recent federal developments and their implications.

Holiday Reading
Here are a couple of academic articles  Grits has downloaded and intends to read over the July 4th holiday:

• A Holistic Framework to Aid Responsible Plea Bargaining by Prosecutors
• Public Trust and Police Deception

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

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

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

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

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

Discretionary funds from commissary to asset forfeiture money bolster local law enforcement budgets

At the Houston Chronicle on Sunday, James Pinkerton offered up a rare adumbration of all 18 county-level pots of "discretionary funds" available in particular to the District Attorney and the Sheriff. ("Harris County has access to millions in discretionary funds," June 10) The sources? "The discretionary funds are raked in after seizures from gambling raids, drug busts, or amassed from fees for writing hot checks or evading county highway tolls."

Further, "Seven of the 18 funds, including a million-dollar fund overseen by Harris County Attorney Vince Ryan, are not required to be audited and don't have to report their spending." Countywide, "The 18 funds - controlled by the sheriff, district attorney, constables, county commissioners, county attorney and fire marshal - hold a total of $38 million, according to the most recent accounting by county auditors."

At the Harris County Sheriff, the jail commissary is the single biggest revenue producer and the Sheriff controls revenue from that line item entirely. (Funds from phone services go into the county general fund.)  Sheriff's spokesman Alan Bernstein commented to Grits that with a total annual budget of $392 million, the $16.1 million in discretionary funds isn't much of a "'cash stash,' as the story calls it," which is true as far as it goes. It's also a fair amount of unfettered money during a tight budget environment. Bernstein says the Sheriff has not spent discretionary funds on either overtime at the jail nor for staffing patrols.

Sheriff Garcia's spokesman told the Chronicle such funds are justified because "criminals are helping to pick up part of the tab." But in the case of commissary profits (and phone service) it's more likely the alleged criminal's family footing the bill, which isn't exactly the same thing.

Shift away from checking reduced hot-check fund revenues in Odessa

Here's an unexpected consequence of the shift away from checks to plastic in recent years - less money in county Hot Check Funds, which are slush funds controlled by County Attorneys generated by an escalating array of fees on hot checks. Reported KOSA out of Odessa:

The Ector County Attorney's office is passionate about going after hot check offenders, but over the past two and a half years that Hot Check fund has depleted from $305,667 at the beginning of 2009 to just $108,709 as of May 31, 2011.

County Attorney Cindy Weir-Nutter explains they're working hard to go after hot check offenders, but with a decrease in businesses accepting checks, there are fewer to recover.
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"It's just common sense that checks are a thing of the past and so the fund is going to go down."

An election opponent agrees the shift away from checks is the main driver for the lower fund balance, though she also accuses the incumbent Ector County Attorney of unnecessary spending on office furniture. An even bigger factor, though, may be that lower-income families, who are most likely to bounce checks, have been closing their bank accounts in droves in part because of higher bank fees and minimum balances as well as, naturally, "overdraft" fees. So if fewer poor people have bank accounts and fewer businesses are accepting checks, it's a reasonable bet that County Attorneys' hot-check fund balances will continue to decline and I wouldn't be surprised to learn that the same thing happening in other counties as well.

Official policies, not "higher crime," cause Potter County Jail crowding

In Amarillo, the Potter County Jail is full and the Sheriff's Office wants to expand, reported the Amarillo Globe News last week ("Potter County examines jail overcrowding," June 9):

[Potter County Chief Deputy Roger] Short said Potter County officials are discussing the possibility of either replacing or expanding the Potter County Detention Center to address overcrowding problems at the facility at 13100 10th St. northeast of Amarillo. He said crowding at the jail puts the safety of officers and inmates at risk.

"It's been an issue for a while. We're staying at capacity," he said. "We don't have room for our own, and we've reached the point where we have to start looking down the road."

The jail houses recently booked offenders and inmates awaiting trial dates. It was built in 1995 for about $12 million. No additions have since been made to the facility, which employs 124 people, 93 of whom are corrections officers. ...

The annual total of inmates at the jail has increased every year since 2008. The facility booked in 7,024 offenders in 2010, up from 6,309 in 2008. ...

"We're just looking at an overburdened court system. With the depressed economy, alcohol and drug use are on the rise," he said. "You can combine all these factors, and we just have higher crime. But the main issue is we're crowded."

Despite Chief Deputy Short's claim that the cause of overcrowding is "higher crime," in reality crime in Amarillo has steadily declined over the last decade just like in most of the rest of the state. Grits compiled this chart depicting total index crimes from annual crime data reported to DPS:

Index crimes reported by the Sheriff's Office are de minimis compared to those handled by the Amarillo PD, but they've also been steadily dropping over the same period, declining by 39% between 2001 and 2009. From these data it's clear that the cause of Amarillo jail overcrowding is not "higher crime" but unnecessary bookings and pretrial detention. As of May 1st, according to the Texas Commission on Jail Standards, a whopping 66% of Potter County Jail inmates were incarcerated awaiting trial, compared to 53% statewide. As is usually the case in such circumstances, decisions by local police, prosecutors, and judges are the source of overcrowding, not the crime rate, which has been dropping. Perhaps that's why county commissioners aren't automatically biting on the jail-building bait, again from the Globe-News:

Commissioner H.R. Kelly said other large projects, such as the $16 million restoration of the county courthouse in downtown Amarillo, have prevented tackling any new projects.

"Right now, the county is kind of at a dire straits as far as having the finances to even consider another jail," he said. "Even adding another pod or two, that's not cheap."

Kelly said he's thinking about proposing measures that would let the jail release offenders with minor misdemeanor charges such as not paying traffic tickets.

Commissioner Joe Kirkwood said he supports placing an ankle-monitoring system on nonviolent offenders.

"When one person goes to jail, it affects their whole family," he said. "You can put them on an ankle bracelet and tell them, 'You can go to work and home.' They're back in society providing for their families."

In addition to those suggestions, Grits would offer several more: Police should begin using authority granted them by the Legislature in 2007 to issue citations instead of arresting for certain low-level, nonviolent misdemeanors. (In Austin, a 2008 study found that 37% of arrests would have been eligible for citations instead.)

Local judges are incarcerating defendants pretrial at a greater rate than the rest of the state and could quickly reduce overcrowding by setting lower bails for low-level offenses and issuing more personal bonds. If county commissioners wanted to contribute to the latter process, they could create a pretrial services program to evaluate offenders to determine bond levels or eligibility for personal bonds (if they've got one it's operating under the radar: a search of Google and Potter County government sites did not reveal it).

Further, the DA and/or County Attorney's offices could begin screening cases earlier in the process, a tactic which has reduced jail costs in El Paso and Harris Counties.

In any event, the cause of jail crowding in Potter County isn't "higher crime" but decisions and policies by local judges, prosecutors and police. Expanding the jail won't solve the problem if those actors don't change their respective approaches. Indeed, doing so would merely facilitate them continuing inefficient and wasteful practices that have filled up the jail during an era of declining criminality.

A rare beast and a self serving excuse

There's been a remarkable sighting: That rarest of beasts, a Texas prosecutor convicted on misconduct charges! A divided Texas Court of Criminal Appeals upheld a conviction for improper influence by a prosecutor after the Kleberg County Attorney attempted to intervene to avoid charges against his aunt, reports Liberty and Justice for Y'all.

LJ4Y quotes Judge Keller's dissent, which sounds particularly adamant, as though she's feeling her oats after appellate judges overturned misconduct findings against her by the State Commission on Judicial Conduct: "If a defendant tries to get his aunt’s case dismissed because he wants to help his aunt, has he committed a crime?," she asked. "The Court says yes. I disagree. I think it is what the defendant says, not what he thinks, that makes an attempt to influence a public servant improper." Uh huh ... sorta like when you say "We close at 5" but what you're really thinking is "F-you David Dow!"

The "intractable problem" for prosecutors created by the Driver Responsibility surcharge

Over at DA Confidential, "The Assistant" (a Texas assistant county attorney who blogs anonymously) has a post describing the "intractable problem" of driving-with-license-suspended cases and the Driver Responsibility surcharge, offering an especially enlightened prosecutorial approach.

Here’s the problem. For many people, their license is suspended as the result of a DWI or for not having insurance. Then after they’re convicted of that offense, in addition to the fines and court costs, the State imposes a “driver responsibility fee.” This Orwellian named program requires payments of $200 to $1,000 a year for three years in order to reinstate the defendant’s driver’s license. If you don’t pay the fees, your license is suspended. This creates a Catch-22 that Grits for Breakfast has covered in more depth than I could possibly give here.

So you see how this plays out- Joe Citizen gets pulled over and doesn’t have insurance because he doesn’t think he can afford it. Joe pays his fine and court costs on the ticket, but then can’t pay the driver responsibility fees, so his license stays suspended. On top of that, he still doesn’t buy insurance. So a few months later, Joe gets pulled over again, and this time arrested for Class B DWLS. He sits across my desk after announcing that he wants to plead guilty and … What?

Any conviction is going to: 1) Have more fine and court costs, 2) either place him on probation with a $35 a month fee OR send him to county jail for a while and risk losing his job, 3) impose another driver responsibility surcharge he can’t pay, and 4) push him further away financially from being able to get a valid license and insurance. At the same time, Joe’s conduct is blatantly criminal and in my estimation very blameworthy. Joe knows he’s not allowed to drive, and chose to anyway. By driving without a license and insurance, he’s essentially shifted ALL the risk of driving a motor vehicle to other people. It doesn’t matter how poorly he drives, someone else is going to pay for it. On a personally infuriating note, the cost of my car insurance coverage for uninsured motorists is HIGHER here in Texas that it was on the urban east coast.

So here’s what I usually work out. Joe pleads not guilty, and has the case set for trial in a month or two. I tell Joe that if he can bring me proof that he’s gotten his license re-instated, then I’ll dismiss the case. The goal of the law is to make sure that people who drive have a license, so I figure if we can accomplish that goal, then there’s no need to proceed with the criminal case. This way, Joe can use the money he would have otherwise paid in fines and court costs on this case to pay off his surcharges and buy insurance. This, theoretically, should also help my too-high insurance rates.

This is a dilemma faced by every misdemeanor prosecutor in the state, and most are not handling the situation nearly as thoughtfully as this writer. I find particularly commendable the use of prosecutorial discretion to compel the driver to become licensed and legal instead of viewing his job as simply doling out punishment to wrongdoers, even those whose actions are "blatantly criminal and in my estimation very blameworthy." The Assistant clearly recognizes that the practical aspects outweigh moralizing platitudes, and it makes sense where possible to provide drivers a path back to legality instead of merely piling on punishments, which are financially impossible for lots of folks.

Generally you won't find prosecutors having much good to say about the Driver Responsibility program, a view with which I find myself in happy agreement. Williamson County DA John Bradley has called the program "taxation masquerading as a public safety initiative." In February, Nolan County Attorney Lisa Peterson posted on the prosecutors' association message board that:

Thanks to the suspended license and no insurance law, our DWLI filings are over the top...again. As each conviction carries yet another surcharge, I'm trying to find some alternatives. We don't have mass transit in this rural county, and several arrests have been of people who work the graveyard shift trying to get to work at the cement plant or wall board plants. Reason for stop has been "saw Johnnie, knew he had no DL, so pulled over" - no bad driving.

My crystal ball is broken - but - are we heading to a time when MOST drivers will be unlicensed? What then?

What then, indeed! On Monday the Public Safety Commission will consider indigency rules for the Driver Responsibility Program, but that won't fix the dilemma these prosecutors are describing. For that purpose, there needs to be a broader Amnesty program that lets drivers get out from under their fees by giving them a path to become licensed and legal.

See related, recent Grits posts:

• Leaving money on the table: The argument for Amnesty in the Driver Responsibility Program
  
• Public hearing set for April 26 on Driver Responsibility rules
  
• Driver surcharge boosting Texas joblessness
  
• Grits comments submitted on Driver Responsibility rules
• Unexplored costs from DPS surcharge harm safety, the economy
• Bill author says 'overly punitive' Driver responsibility surcharge a 'mistake'
• Indigency rules for Driver Responsibility surcharge published in Texas Register
• New Driver Responsibility rules unveiled today at DPS