Should decarceration advocates push for federal reforms?

Writing in Vox, John Pfaff dislikes Cory Booker's Reverse Mass Incarceration Act for two principle reasons. First, he thinks it reacts to a misdiagnosis, seeking federal legislation because liberals to his mind wrongly blame the Clinton 1994 Crime Bill for the rise of mass incarceration. Pfaff thinks its role is overstated and that federal legislation can't do much to reduce incarceration in the states. Second, he thinks it will unnecessarily gin up enemies - in particular prison guards and prosecutors.

Grits thinks these concerns are overblown. Yes, the role of the 1994 Crime Bill has been overstated. But Pfaff undersells its importance in galvanizing support for tuff-on-crime legislation in the culture at large, and especially among Democrats, that trickled down to the state level. (In Texas, for example, the push for it helped sell Ann Richards' concurrent billion dollar bond issue she pushed to triple the size of our prison system.) Booker's bill, or perhaps a more bipartisan version, theoretically could do the same for 21st century pols, especially among the GOP, where the Right-on-Crime movement provides a ready vehicle for conservatives who wish to embrace justice reforms.

Second, it's a huge mistake to fantasize that decarceration can be achieved without fighting the institutional opposition like prosecutors, police unions, prison guards, and Chamber-of-Commerce types from rural prison towns. They're going to fight because their interests are threatened. Avoiding the fight is impossible and change can't happen until the fight is won. So Grits sees little sense in putting it off. The thing to do is pick the field of battle with the greatest near-term hope for success and begin slugging it out.

In my own experience, the processes such conflicts generate - the back and forth, the interrogation of claims, the debates over values, the competing demands on politicians, and even the interest-splitting compromises - are in fact how change occurs in a (small-r) republican system: Slowly and incrementally, the same way mass incarceration was created.

But that won't occur unless we start, everyone should start where they are, and since Cory Booker is in the US Senate, to Grits, it's fine if he starts there.

Mark Skurka's passive-aggressive Davy Crockett impression

Nueces County DA Mark Skurka, having been ousted by voters in his primary and facing lame duck status, has clearly entered his "To hell with all y'all, I don't give a f&%$" phase.

Regular readers may recall that, in early 2012, then-Gov. Perry's Criminal Justice Division deployed new rules governing the timeline by which counties must submit data on court cases, penalizing them for noncompliance by taking away federal grants if they refused to submit data in a timely manner. (See Grits coverage here, here, here, and here, and coverage of the state auditor's report that inspired the rule.).

In Nueces County, they've run up against a unique problem: The DA refuses to dismiss low-level misdemeanor cases which aren't being prosecuted and thus the county can't meet the normally generous reporting deadline for finalizing cases. At the Corpus Christi Caller-Times, Krista Torralva reported that, "Nueces County was denied $142,000 in grants and is at risk of losing about $1 million in all." Now, "The five county courts at law and eight state district courts have until Oct. 1 to resolve more than 400 cases from between 2010-2014. The Governor's Criminal Justice Division granted Nueces County a 60-day extension from Aug. 1 to get in compliance."

Skurka appeared uninterested in helping the county solve its grant problem, though grants include "funding for GPS monitors with victim notification in domestic violence cases." Already, "More than $142,000 in grants were denied to fund drug court for juvenile offenders, drunken driving court for adult offenders, security cameras for the courthouse and electronics systems." State district judges at the meeting, who normally oversee felony cases

offered to take misdemeanor cases from the five county courts at law to quickly relieve them. But District Attorney Mark Skurka said that presented an issue because the misdemeanor prosecutors can't be in two places at once.

[Judge David] Stith suggested the judges hire temporary special prosecutors to handle cases. But it would be nearly impossible for the two-person witness office to get all the witnesses together, Skurka said.

[Judge Sandra] Watts asked Skurka for his suggestion. He didn't offer one.

Instead, the DA's office wants convictions out of these old cases:

Assistant District Attorney Lorena Whitney suggested reaching plea agreements in cases of marijuana possession, driving with a suspended license and criminal trespass, which make up a large chunk of the pending misdemeanors.

Stith suggested dismissing cases that prosecutors weren't prepared to take to trial.

"See, that's the problem Judge," Skurka said. "You're trying to get these cases dismissed and that's not justice."

Hasette asked if the cases were worth prosecuting, especially in years-old cases in which witnesses haven't been located. Skurka suggested the witnesses weren't found because the judges hadn't set the cases for trial.

"Well we're about ready to set them," Watts said.

It should be mentioned that Nueces is nearly alone in still struggling with this problem. Most other counties are able to comply with the rules and nobody but Mr. Skurka is balking over old pot and suspended license cases. The idea that Skurka's recalcitrance stems from a commitment to "justice" beggars belief. How does it serve justice to keep 400 people in limbo for years without a speedy trial? Or to divert judges from felony courts that hear rape, robbery and murder cases to handle old misdemeanor leftovers? Dig deeper into these issues and Skurka loses hands down on the "justice" question.

Reading between the lines, this comes off as a final "FU" from an embittered pol aimed at his peers and the electorate, neither of whom appear particularly sorry to see him go. It's sort of a passive-aggressive version of Davy Crockett's declaration to the voters in Tennessee after losing his Congressional seat: "You can all go to hell and I shall go to Texas." By contrast, we likely won't see I don't care if you lose your stupid grant money emblazoned on t-shirts and swag. Whoever replaces Skurka will no doubt put this ignoble, spite-based behavior to rest and seek to work with the courts more productively. For the next few months, though, Nueces judges and court staff are left with a partner on these questions with no incentive to cooperate and who doesn't seem to care about them, their opinions, nor stewardship of county faith and funds. Ain't democracy grand?

Can Washington D.C. help Texas end mass incarceration?

Inimai Chettiar of the Brennan Center will speak at the LBJ School in Austin today and as fate would have it she just co-wrote an essay in The Hill suggesting ways the federal government could create incentives for decarceration in the states. Though Grits had earlier paired suggestions from the Brennan Center and Prof. John Pfaff (whose name always makes me think he should be from Pflugerville), Chettiar framed their positions as oppositional, IMO somewhat needlessly.

Chettiar and her coauthor, Lauren-Brooke Eisen, want to roll back federal incentives for overincarceration, but Texas has more prisoners than any other state and the biggest item named was never adopted here. Speaking of the 1994 federal crime bill, they wrote:

Perhaps most significantly, the bill authorized $12.5 billion for states that adopted “truth-in-sentencing” laws, which stipulate an offender must serve at least 85 percent of their lengthy sentences. After the bill was enacted, 24 states passed such laws. As one example, New York received more than $216 million, and by 2000, the state had added more than 12,000 prison beds, incarcerating 28 percent more of its citizens than a decade before. The law was a turning point for America’s philosophy and practices of punishment.

FWIW, Texas was not one of the states that adopted that 85% rule. And their other main example wasn't a perfect fit, either, for 2016 Texas:

The Edward Byrne Memorial Justice Assistance Grant Program (JAG) is another example of the federal government’s role in increasing arrests and incarceration. The program provides around $400 million annually to more than 1,000 cities across all 50 states. It is the largest single source of federal criminal justice funds for states and localities.

For years, JAG funding helped incentivize more arrests, prosecutions, and imprisonment in states and cities. When handing out the money, the federal government asked state and local police departments to report numbers of arrests but not changes in crime rates. It tallied the amount of drugs seized, but not whether offenders were sent to drug treatment. If a state wanted money, it had to produce numbers.

Long-time readers of this blog will recall that, for many years Texas spent nearly all its Byrne grant money on regional narcotics task forces, like the one in the infamous Tulia drug stings, which were judged by similar arrest-maximizing metrics to those described above. But after a series of scandals, legislative interventions, an ill-fated DPS takeover of the system, a sustained, five-year advocacy campaign (see a couple of public policy reports I wrote on the topic for ACLU of TX back in the day), and remarkable episodes of defiance, in 2006 Rick Perry defunded dozens of task forces around the state and split the money toward basically two new priorities: drug courts and border security (which was the first government spending presaging the massive $800 million border boondoggle the Lege authorized last session, though that's a story for another day).

I've always wondered if reduced drug possession arrests - at their height the Byrne-funded drug task forces statewide claimed to make 12,000+ drug arrests per year - might have partially contributed to the leveling off of Texas' prison population in the mid-aughts? Some of those arrests would have still been made by those officers' parent agencies (local PDs and Sheriffs contributed officers to the task forces), but I bet there was some non-insignificant front-end decline.

Regardless, while I agree with the Brennan Center about removing federal incentives, Texas' prison population remains quite large without them, so that won't do much here. More interesting to me was their proposal, discussed in the earlier Grits post, to create incentives for states to safely de-incarcerate:

Congress can pass a modern day crime bill that directs federal funds to states that reduce their prison populations, while keeping down crime. (The Brennan Center has proposed such a bill.) Today, $3.8 billion in federal grants run largely on autopilot, on the outdated notion that increasing prison populations brings us wins against crime. The next president can champion such an Act. Even without Congress, the next president has executive authority to redirect much of this money, helping create a major nationwide shift.

Many states did react to money incentives in the way she describes, and many states would surely adjust to the new incentives as well. Maybe even Texas.

In any event, I see nothing mutually exclusive between Chettiar's suggestions and Pfaff's idea, which was that the feds could contribute money to states for purposes of providing an adequate defense. Either would be good, both would be better.

Governor may boost forensic reviews with grants

At a panel on Friday concluding a continuing legal education seminar sponsored by the Texas Criminal Defense Lawyers Association, Gov. Rick Perry's new general counsel, Mary Ann Wiley, said that before the next legislative session the governor's office plans to issue grants to assist processing cases involving potentially large-scale forensic errors, like the Forensic Science Commission's ongoing hair and fiber analysis or the arson review undertaken by the state fire marshal.

That's welcome news; those reviews have been rather ad hoc and funding will not only deploy more resources but help supply structure and, God forbid, maybe even greater accountability. It would also better position the state to implement the sort of rapid response to forensic errors suggested in last year's "white paper" from the Forensic Science Commission and the Court of Criminal Appeals' Criminal Justice Integrity Unit.

For Perry, this move doubles down on his recent self-positioning as a moderate reformer on criminal justice headed into the 2016 presidential sweepstakes.

Wiley also predicted that episodes of forensic error will continue to arise and reiterated her recent suggestion that the Legislature create an office of forensic writ counsel similar to the Office of Capital Writs to provide counsel in cases like the hair and fiber review or the Jonathan Salvador fiasco. She said the idea has gotten as far as discussions with a potential legislative sponsor, so expect some action on this when the 84th Legislature meets next year.

State law encourages prostitution diversion programs, if grants are available

Good coverage from the CBS affiliate in Dallas of the new prostitution diversion initiatives mandated for larger Texas counties by the 83rd Lege - or at least it's mandated that they apply for a grant and mandatory that they implement the program if they get one. Here's a notable excerpt quoting a judge from Dallas Harris County, describing the model that the bill now aims to get other counties to emulate:

District Court Judge Maria T. Jackson has sentenced 20 women to the program, working closely with [nonprofit advocate Kathryn] Griffin to monitor their treatment.

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

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

When they’re released, Griffin first takes the women shopping, “cause all they have is hooker clothes,” she said. Some go to drug rehab or a halfway house. Many require job training. And all must attend Griffin’s external workshop every Wednesday for at least 18 months.

Grits generally supports this project but dislikes this namby pamby non-funding mechanism. If it's worth mandating, ostensibly, it's worth budgeting for. Why leave it up to the Obama Administration or other grant makers whether to fund the Legislature's priorities?

Elimination of drug task forces a blessing in disguise from sequester cuts

Long-time readers know that Texas eliminated its statewide system of drug task forces - funded through the federal Byrne grant program - in the wake of the Tulia drug scandal and repeated improprieties at other task forces. The Legislature in 2005 put them under control of the Department of Public Safety, which found them unmanageable. Then Governor Perry in 2006 decided to eliminate task force funding and shift that federal grant money to other priorities like specialty courts and border security. Most states, though, still spend all or part of the portion of the Byrne grants distributed as block grants on networks of locally staffed "regional narcotics task forces" which in many cases have operated on the federal dime for more than two decades.

Having already been cut in recent years, the sequester has resulted in plans for Byrne grants to be radically reduced over the next decade. Stateline.org has a story about drug task force systems in other states shutting down as a result. Give it a read. Their account of Texas' decision to eliminate task forces at the end of the story is a bit off on the finer details, but in general it's correct that the Tulia scandal launched a rethinking of the drug task force system by the Legislature and the Governor that resulted in their demise.

The flip side of Stateline's task force story is that, in Texas, the loss of grant funds due to the sequester will affect those specialty court, treatment, training, and border security programs where the Governor's Criminal Justice Division shifted the money. While Grits would hate to see treatment and specialty court dollars go away, I consider most of the border-security pork misspent and in general I don't think it especially proper, under principles of federalism, for the national government to fund local courts or law enforcement. So it won't bother me a lot if Byrne grants become a permanent casualty of the sequester.

The drug task force network was a mess in Texas and I bet other states will find, just like we did, that once they're gone, their absence will solve more problems than it creates.

See a sampling of the many past Grits posts on Byrne grants and drug task forces

• Hyping Harm: Media should welcome, not decry Byrne grant cuts
• Texas' Tulia Lesson: Dems should join GOP in abandoning failed drug task force strategy
• Byrne task forces account for huge percentage of drug arrests in other states
• Revisionism begins in effort to restore drug task force pork
• 'Operation Byrne Blitz' makes explicit arrests-for-dollars link
• Byrne task force funds mainly financing low-grade enforcement
• Left and right join to bash Byrne grants in D.C.
• Hug a drug task force officer, he's having a bad day
• Era of Tulia-style task forces coming to an end in Texas
• More problems than Tulia caused drug task forces to close
• Why drug task forces must go 101 

Governor's Criminal Justice Division seeks new home for specialty court data collection, oversight

The Texas Criminal Justice Coalition sent out an email today describing new legislation that will be filed soon, according to Christopher Burnett of the Governor's Criminal Justice Division:

In 2012, Governor Perry created CJAC by executive order to examine aspects of Texas specialty courts (drug courts, veterans’ courts, family drug courts, etc.)  Over the last year, CJAC volunteers have spent countless hours looking at questions of evidence-based best practices, oversight, protection of participants’ rights, the role of court team members, and the need for solid data to measure specialty court efficacy.  During this legislative session, the results of CJAC’s work will be presented through a bill authored by Senator Joan Huffman.

The bill’s main purposes will be to consolidate the majority of existing specialty court statutes in one place, clarify the requirements that these courts report their existence to the Governor’s Criminal Justice Division (CJD), further define the role of court team members, develop outcome- and evidence-based best practices to serve as guidance for courts, and require the collection of minimal but standardized performance data.

Specialty courts only work when judges and other team members have the maximum flexibility to tailor their particular court to fit local needs and resources.  A cookie-cutter, one-size-fits-all, governed-from-Austin model of how specialty courts should operate simply won’t work.  The original authors of the various specialty court statutes understood this and so do the members of CJAC.

Over the last ten years, the number of specialty courts in Texas grew from nine to around 140.  This rapid growth and the ability to gather meaningful data have been difficult to track.  Legislators, county judges, county commissioners, and all involved need to see if these courts continue to do what they were designed to do:  keep people from unnecessarily going deeper into the criminal justice system; restore broken lives; and free up scare space in county jails and state prisons for those truly requiring incarceration.  CJD believes the proposed bill will help accomplish those goals.

Burnett foresees that, "the next step in specialty court evolution as being the transfer of CJD’s limited oversight of and data collection responsibilities for these courts to another state agency. The where and when will be determined by the Texas Legislature," though offhand one imagines the Office of Court Administration seems like a logical spot. See the rest here.

Law enforcement grants, DWI and the fiscal cliff

As the feds approach the "fiscal cliff," media are beginning to look at the state-level implications. But one small element hasn't been much discussed: Federal grants to states for law enforcement. In particular, federal funds for Texas DWI grants were cut by 30% in 2011 - from $20 million to $14 million - and could be eliminated entirely if a budget deal isn't struck, or for that matter if the grants are eliminated as part of GOP-driven spending reductions being proposed in Congress. (The Obama Administration wants to increase spending on law enforcement grants, but the funds are part of the discretionary spending considered "on the table" in the fiscal cliff negotiations.) Reduced federal grant funds already contributed to a recent dip in the number of traffic stops initiated by Texas law enforcement. One wonders: What would be the effect on DWI enforcement if the remaining $14 million were cut?

DWI enforcement is as much about public relations as taking dangerous drivers off the street, as nearly everyone agrees that TV ads and public relations campaigns related to DWI have contributed at least as much as tougher penalties and strict enforcement to declining DWI death rates. So you get press events like the one described in this report from KUHF radio, announcing a federal grant to Harris County to coordinate:

Press conference announcing DWI grant via KUHF

a new DWI Task Force.  The group is administering a $295,000 TxDOT grant.  That money will help law enforcement in an eight-county area with enhanced DWI enforcement efforts.

Funds will be used during the Christmas holidays, and they'll also be used during summer holidays when people tend to drink a lot.

Kaufman says large police and sheriff's departments have had DWI enforcement grants for years, but the task force will allow smaller departments to conduct their own efforts.

"They might not have the numbers specifically to qualify.  Some of the administrative issues just make it a challenge in order to do the enforcement and administer the grant."

Much of the grant money will be used to pay for police overtime during the "no refusal" period.  That's when police get a search warrant to take a blood sample when a drunk driving suspect refuses to take a field sobriety test.

And in some places the enforcement effort goes even further.

Montgomery County prosecutor Warren Diepraam says they've even sent  uncover officers into bars to make sure customers aren't being overserved.

If federal grants for DWI enforcement go away, these sorts of activities would either a) cease, b) be paid for with local tax dollars or c) be covered by state budget writers, perhaps shifting funds from border security or the Governor's business incentive accounts. That last option seems the least likely. If grants for DWI enforcement were eliminated at the federal level, it wouldn't surprise me if state budget writers balked at funding routine local law enforcement activities, especially since some DWI grant funds have been misused. So, even as Houston-area authorities celebrate their latest grant, officials must also face the reality that those funds may not be available, certainly at such generous levels, in the near future.

Of course, DWI enforcement isn't the only criminal justice area where state spending could be affected by federal budget cuts. Certain specialty courts and other innovative programs have been funded through federal pass-through grants which have generally demonstrated excellent results, including for DWI. Local law enforcement has used federal grant funds for tons of equipment upgrades, vehicles and to purchase a variety of military-style gear. And most of Texas' border security spending relies on federal spending. (For that matter, cuts to the military would disproportionately affect Texas, too, because we have so many military bases.) If those federal dollars went away, it would leave hundreds of state and local officials scrambling to plug the gaps.

Between the fiscal cliff and Gov. Perry's insistence that the state won't accept new Medicaid funds, state and local government in Texas can expect a lot less benefit from federal spending for the rest of the decade than we've enjoyed in recent years. The complaints won't come until after the fact: Right now confusion about what's going on and gridlock surrounding Congressional debates makes discussion of specifics premature. But Grits suspects that the landscape surrounding federal law-enforcement grants is one of many things that could change dramatically as a result of the budget negotiations in Washington.

Contretemps, mystery surround elimination of Harris mental health court money

Will new Harris County DA Mike Anderson and his incoming first assistant Judge Belinda Hill torpedo the county's new mental health court as their first act out of the blocks? Mixed signals arose on the subject in a Houston Chronicle story ("Judge fears new Harris mental health court is in peril," Dec. 11) with an array of detail still unconfirmed:

Instead of signing off on the memo of understanding that the District Attorney's Office needs to dole out the money, [Judge Jan] Krocker said, Hill plans to create a committee to revamp how the courts allocate funds for mental health and let incoming District Attorney Mike Anderson decide where the money goes after he takes office Jan. 1.

"This is not good news for the mental health court," Krocker said. "Although Mike Anderson has publicly supported the mental health court, he worked behind the scenes to keep it from opening."

For his part, Judges Anderson and Hill played dumb: A tactic of which they will only be able to avail themselves for three more weeks:

Anderson and Hill denied they are trying to close the court, one of several specialty dockets in the criminal courthouse that includes drug courts, a veteran's court and a different mental health court.

"I did not kill this deal," Hill said about the money offered by Lykos.

She said the District Attorney's Office decided to not offer the money, but not because of her. "I know there was some interest in it, but my understanding was that, as of Friday, they decided to not do that and let the next administration address that issue," Hill said.

[Outgoing DA Pat] Lykos could not be reached late Tuesday to answer why the offer was apparently revoked.

I wish reporter Brian Rogers has spoken to Judge Lykos or her representatives before publishing, then maybe we'd know what's going on. Strangely, Judge Anderson implied he may still become a white knight to preserve the program, but under his own terms:

Anderson also said he supports Krocker's court and is not trying to close it.

"I have made it known that I am in favor of funding the specialty courts," he said. "Three weeks from now, I'll be in a position to look at things and help them out, not just mental health courts, but drug courts and veteran's courts."

He said he was aware that judges and court administrators are considering a move toward Hill's vision of an oversight committee, but did not know details.

"I want to listen to whatever anybody's got to say about funding drug courts and mental health courts and veteran's courts," Anderson said. "They're good things. I think they make a difference."

Given that Judge Anderson just invited Judge Hill to be his first assistant and she allegedly turned around and began meddling in the outgoing DA's spending from the asset forfeiture fund, the idea that he knew nothing about her actions but is willing to "listen," etc., seems incredible. If he's that disengaged, it's almost worse than if he knew! OTOH, if it turns out outgoing DA Pat Lykos did this, not Judge Anderson's representatives, then Judge Krocker may find herself eating crow. Either way, assigning blame won't solve the problem of the eliminated funding.

For now all we know for sure is that money for the court suddenly peters out at the end of the year. This is a good argument for not funding such courts through the DA's asset forfeiture fund: The DA can always try to apply strings to the funding or eliminate it for judges or programs they disfavor, interfering with judicial discretion. And if the DA you're dealing with "wouldn't" do that, their replacement might. Whether that's what happening in Harris County, time will tell. Anderson could restore funds in January and this will have been a tempest in a teapot, or it could turn out to be an opening salvo as the new DA and his top staff set their own agenda and try to differentiate themselves from their supposedly soft predecessors.

TXDOT: Grant funds paid for overtime never worked by Dallas deputies

Dallas County will have to repay $214,000 for overtime paid to Sheriff's deputies for time they didn't work, the Dallas Observer reported. The seven officers, three of whom were fired and a fourth of whom may be soon, were being paid through a Texas Department of Transportation grant fund aimed at paying police overtime for DWI and seat belt enforcement. Grits had earlier suggested that cuts to that same grant fund were responsible for fewer traffic tickets being written by Texas police officers last year. I didn't realize some officers were just taking the money and not writing tickets anyway.

Federal law enforcement grants may become victims of Congressional budget showdown

According to the Crime Report, federal criminal justice grants to the states might get cut if Congress can't strike a debt ceiling deal include "Community Oriented Policing Services (COPS), Byrne Justice Assistance Grants, Residential Substance Abuse Treatment for State Prisoners, various federal juvenile delinquency prevention initiatives, and the National Instant Criminal Background Check System." Reported Ted Gest,

If sequestration goes into effect next year, which is considered likely, all domestic federal discretionary spending--including for criminal justice purposes--will be cut by 8.2 percent at first. Further reductions are required through fiscal year 2021.

Advocates for federal spending on criminal justice and other domestic issues are trying to convince members of Congress to take a "balanced" approach that does not require continued, large across-the-board cuts in federal aid.

Many argue that while the huge federal deficit makes some spending reductions inevitable, more attention should be given to "entitlements" like Medicare and Social Security payments.

Depending on what's meant by juvenile grants, that could be a big deal. Here's a link to the most recent quarter's worth of federal Byrne grants issued in Texas by the US Justice Department.

State Auditor critiques TDCJ oversight of diversion grants to local probation departments

The State Auditor has issued a report (pdf) critical of the Texas Department of Criminal Justice's Community Justice Assistance Division (TDCJ-CJAD), which oversees local probation departments. From the summary:

The Division also should improve its financial and program monitoring to ensure that local departments spend funds from Diversion Programs grants as intended. Specifically:

- Financial Monitoring. The Division's financial monitoring of local departments relies primarily on reviewing the reports from audits of financial statements and compliance-related information that external auditors conduct at local departments. However, the Division's guidance and checklist for those audits do not contain sufficient detail. In addition, the Division does not consistently review the reports from those audits in a timely manner or follow up to determine whether local departments correct issues identified in those audits.

- Program Monitoring. The Division conducts its own program monitoring at local departments. Its program monitoring includes reviewing local departments' compliance with special grant conditions. However, the Division does not determine whether local departments' performance output and outcome reports are accurate, and it does not have an adequate risk assessment to select local departments at which to perform program monitoring.

The Division also should improve its monitoring of available funds to ensure that it maximizes the use of Diversion Program grants.

One particular criticism that Grits has heard before from local probation directors found that: “the Division did not inform all local departments of all evaluation criteria before the local departments submitted their community justice plans. The Division’s instructions to the local departments did not specify the evaluation criteria the Division would use. The State of Texas Contract Management Guide states that 'the solicitation document must advise the respondents how a proposal will be evaluated.'”

Another issue was that TDCJ-CJAD cannot confirm the validity of data reported by local probation departments that's used to determine grant funding:

Program output data in the Actual Program Outputs (APO) system and offender-level data in the Intermediate System (ISYS) that the Division uses to make Diversion Program grant funding decisions may not be accurate.

The local departments enter annual performance data into the APO system. They also enter offender-level data into case management systems, and that data is subsequently transmitted to ISYS. The Division also receives data on monthly offender totals from the local departments and enters that data into a database. The Division compiles the data from those three sources and then uses it to score local departments’ community justice plans and make funding decisions. However, data in the APO system and ISYS may not be accurate. For example, the Harris County Community Supervision and Corrections Department explained to auditors that the data on outputs that it submitted to the APO system was inflated, and the Dallas County Community Supervision and Corrections Department could not provide support for totals it had entered into the APO system. Division management also stated that offender-level data in ISYS was not accurate.

If the Division does not ensure that data from those sources is accurate, that increases the risk that funding decisions could be based on inaccurate data and that funding may not meets the needs of local departments.

Yet another criticism highlighted a problem Grits has frequently complained about related to these diversion grants: "The Division does not have a schedule of sanctions that it can impose on local departments for noncompliance with the terms of their Diversion Program grant agreements." The agency promised that by January 2013 it would put in place a "system of graduated sanctions" for non-compliant departments.

To be fair, there's an extent to which TDCJ-CJAD doesn't have the staff or resources to provide more aggressive oversight of diversion grants or local probation departments generally. In an unrelated story out today in the Houston Chronicle, "Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, said funding cuts have hurt the division's ability to prevent a situation like that of Harris County, noting the agency's staff has fallen from 116 in fiscal year 1998 to 74 as of last November."

TDCJ-CJAD agreed with the state auditor's recommendations, most of them predicting compliance on relatively short timelines, but it's questionable whether the division has sufficient resources to effectively implement them all. TDCJ has always treated probation as a red-headed stepchild, even though far more offenders (three times as many, in fact) are supervised on probation than in prison. TDCJ and the Legislature both consistently prioritize keeping prisons open over strengthening community supervision programs, then everyone wonders why CJAD doesn't perform more aggressive monitoring with 36% fewer employees than they had in 1998. So while I agree with much of what's in the auditor's report, I also recognize that TDCJ-CJAD finds itself between a rock and a budgetary hard place. Oversight of diversion programming should improve, but it can scarcely do so if legislative budget writers and TDCJ administrators don't give them the resources to do so.

'Weed and Seed' grants eliminated as part of federal budget cuts

A federal drug-war grant fund called the "Weed and Seed" program has bitten the dust as part of budget cutting in Washington, D.C., reported the St. Louis Post-Dispatch ("Anti-crime program 'Weed and Seed' runs out of money," May 23). Checking online, Grits found that the office managing Weed and Seed grants has indeed been shuttered, with the Justice Department managing grants until they expire. Right now there are ten active Weed and Seed grants in Texas that presumably will expire at the end of the fiscal year without possibility of renewal - two grants each in Houston and Dallas, and one grant apiece in San Antonio, Austin, Fort Worth, Corpus Christi, Arlington and El Paso.

Other federal law-enforcement grants have been cut in recent years (Bush II tried to eliminate most of them entirely) and pressure has grown to use federal grants for projects that do more than just maximize drug arrests. Grits has never been a fan of federal subsidies for local law enforcement functions, believing they artificially boost supply of law-enforcement services beyond taxpayers' actual local level of demand (because the feds borrow to pay for it instead of adopting a pay-as-you-go approach). Moreover, it abrogates the separation of responsibilities under federalism for federal money to pay for local law-enforcement, particularly when they do it in some jurisdictions but not others.

Grits happens to live in the Central East Austin Weed and Seed area and while they've sometimes funded community events with the money, I've never witnessed any public-safety benefit one could peg to the program. Anyway, given my druthers, I'd prefer publicly funded cultural events be financed on their own merits, not as a law-enforcement public relations initiative, which is how Grits perceives much of the Weed and Seed programming. Plus, the "weed" part of the program "consists primarily of suppression activities such as enforcement, adjudication, prosecution, and supervision efforts designed to target, apprehend, and incapacitate," which doesn't sound quite as touchy-feely as their more widely publicized activities.

Budget cuts are often portrayed in the media as an immediate crisis, especially by law enforcement, but they're also an opportunity to overcome inertia and re-assess priorities. Grits won't be surprised (nor disappointed) to see federal law-enforcement grants continue to dry up given the rivers of red ink flowing out of Washington. So much of the federal budget is obligated to military and entitlement spending, these sort of discretionary grants are just the sort of low-hanging pork fruit that IMO budget cutters will find increasingly difficult to justify.

Indigent defense short-shrifted in Byrne/JAG grants, says Constitution Project

Could/should Texas be spending more federal grant dollars to support indigent defense? And should the Governor's Criminal Justice Division continue to forbid using Texas' deepest well of federal criminal-justice grant funds for that purpose?

A press release Grits received via email from the Constitution Project argues that a greater proportion of federal grant money aimed at criminal justice should go toward providing lawyers for the poor: 

WASHINGTON, D.C. -- Almost none the money the federal government provides to state and local governments for justice system improvements goes to helping to defend poor people, a new study shows. The report bears out claims that supporters of indigent defense have made for years that there is an enormous disparity between governmental financial support for prosecutors and defenders.

According to a Government Accountability Office (GAO) report released yesterday, almost half the money block granted to the states under the Byrne Justice Assistance Grant Program grants goes to fund law enforcement and prosecution activities, with less than one percent being used for public defenders or other private lawyers appointed to assist those who cannot afford legal representation on their own.

"Despite repeated calls from the legal community for improved funding for indigent defense, and even though Attorney General Holder himself has declared a 'crisis' in the right to counsel for the poor, this study shows that state and local governments continue to give justice for the needy short shrift when they divide up the federal dollars they receive," said Virginia Sloan, president of The Constitution Project (TCP), a bipartisan legal watchdog group.

The GAO report says that the Department of Justice (DOJ) distributed more than $500 million to state and local government under the Byrne JAG program in five of the six fiscal years between 2005 and 2010. Less than one-tenth of one percent of the money sent to local governments, and only seven-tenths of one percent of the money allocated to the states, was spent on indigent legal defense, the report shows. In contrast, 54% of the funds DOJ sent to localities, and 38% of the funds sent to states, were spent on law enforcement and prosecution activities.

The report indicates that among the reasons that indigent defenders do not receive more funding is that, most of the time, they are not part of the decision-making process that disperses the funds, and many are not even aware they are eligible to apply for them. Nearly two-thirds of the public defender offices responding to a GAO survey said they did not know that they were eligible for federal funding, and 31% said they lacked the knowledge or the personnel to complete the application process.

In responding to the GAO report, the DOJ indicated it was taking steps to make public defenders more aware of their eligibility. ...

TCP released a comprehensive bipartisan report on problems in the indigent defense system, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, in 2009.

A copy of the GAO report is available online.

Regrettably, GAO's main recommendation is pretty weak:

GAO recommends that DOJ increase grantees’ awareness that funding can be allocated for indigent defense and collect data on such funding.

DOJ concurred with the recommendations.

The feds could and should do more to balance the equation than just make grantees "aware." Whenever the feds specify that a proportion of grant money be spent on indigent defense, they do it. From GAO:

The Department of Justice (DOJ) administered 13 grant programs from fiscal years 2005 through 2010 that recipients could use to support indigent defense, 4 of which required recipients to use all or part of the funding for this purpose. DOJ also provides training to indigent defense providers, among other things.

From fiscal years 2005 through 2010, recipients of the 4 grants that required spending for indigent defense allocated or planned to use $13.3 million out of $21.2 million in current dollars for indigent defense.

However, among the 9 grants that did not require allocations or awards for indigent defense, two-thirds or more of state, local, and tribal respondents to GAO’s surveys reported that they did not use funds for this purpose, partly due to competing priorities.

Clearly grantees will spend money on indigent defense when the feds tell they they have to, but prioritize law enforcement and prosecution spending nearly exclusively when left to their own devices.

As it happens, Grits has quite a bit of history with Byrne grants in Texas, spending five years on a campaign to convince Texas to shift its federal block-grant spending away from Tulia-style drug task forces, including authoring two public policy reports on the subject (see here and here). Initially, after the drug-task forces were de-funded in 2006, roughly half the Byrne grant money began to fund the Governor's new border security projects while much of the rest went to fund things like drug courts, diversion programs and frequently law enforcement equipment. (Here's an example of Byrne/JAG grants from a recent quarter to give you an idea of how the money is spent in Texas today. See the full list (pdf) of the various grant funding streams administered by the Governor's Criminal Justice Division.)

As drug task forces began to shut down - either from scandal or from counties' fear of increased liability as their insurers demanded higher premiums in the wake of the Tulia and Hearne episodes - we actually sent out blank grant applications to counties when I was at ACLU of Texas suggesting they apply for money to use for other, more constructive things, particularly drug courts and diversion programming. So I understand and agree with the strategy of making applicants aware of their eligibility, but that's not enough in and of itself. If Congress and/or DOJ want Byrne/JAG money spent on indigent defense they may need to require some minimum proportion go to that purpose.

Presently most indigent defense grants in Texas are funneled through the Texas Indigent Defense Commission grant programs, which are financed (at lower levels than Byrne grants) largely through the federal Office of Justice Programs. If Byrne grant money could also be used to launch indigent defense programs, I bet a lot of Texas counties would apply for that purpose.

Unfortunately, on the website of the Texas Governor's Criminal Justice Division is a "Guide to Grants" (pdf) describing the various funding streams doled out by that office, which specifically excludes "legal services for adult offenders" from allowable grant expenditures. Here instead are the areas the Justice Assistance Grants in Texas are designated to fund:

• Border Initiatives
• Court Programs (except Drug Courts)
• Data/Information Sharing Systems
• Drug Court - Adult
• Drug Court - Family
• Drug Court - Juvenile
• Equipment-Only Purchases
• Gangs – Adult
• Investigation
• Prosecution
• Substance Abuse
• Training
• Technology

Indigent defense is notably absent from the list. So even if DOJ increases the Governor's Criminal Justice Division "awareness that funding can be allocated for indigent defense," unless that restriction is changed it won't boost the proportion of Byrne/JAG grants going to pay for it in Texas. Larry Akey at the Constitution Project says that "it’s Texas policy" and not any federal restriction "that prevents them from using Byrne-JAG for indigent defense." He wrote in an email that:

Indigent defense has long been an approved use. Starting in 2010, the DOJ has stated explicitly in  application materials that indigent defense is an appropriate use.  For example, in 2012, the Byrne JAG state solicitation indicates:
 
“Another key priority area is ensuring that justice is truly done in the criminal justice system is support for indigent defense. BJA continues to encourage states and SAAs to use JAG funds to support the vital needs of the indigent defense community. Attorney General Holder has consistently stressed that the crisis in indigent defense reform is a serious concern which must be addressed if true justice is to be achieved in our nation.”

If that's accurate, it's Governor Rick Perry's Criminal Justice Division policies, not federal law or regulations, keeping counties from applying for Byrne/JAG money for indigent defense programs.

Grits contacted the Governor's Criminal Justice Division on Friday to ask why that rule is in place, but after an email query and leaving a message with a receptionist did not receive a return call by the end of the day. I also asked Jim Bethke from the Texas Indigent Defense Commission about the restriction. He said he knew nothing specifically about Byrne/JAG grants, but dashed off a quick note to say "CJD has been supportive of various initiatives we have brought to them over the years.  Travel funds for county officials to attend indigent defense travels, collaborations on veteran defender programs, and I’m certain there are other things too. And more importantly than the 'CJD' funds, the Governor has supported the growth of indigent defense appropriations for our agency."

Even if the Governor has been supportive of indigent defense funding from the state budget - and that's no small credit to him in these trying fiscal times - I bet there are more than a few county commissioners from both parties (at least those whose counties don't get Border Star money), who would like to see federal and state grants focused more on basic statewide needs like improving indigent defense and less on a handful of often thinly populated counties along the border.

For example, in one recent quarter, Webb County (Laredo) received roughly $242,000 for a drug court program plus $303,000 in JAG money under Operation Border Star. The same quarter, much smaller Starr and Maverick Counties received $279K and $282K, respectively, under Operation Border Star. By contrast, just as example, Lubbock County the same quarter received three grants for specialty courts totaling roughly $211,000. Jim Hogg County, by comparison, with a total population of less than 5,000 people, received $233,646 that quarter for a "Major Crimes Unit." A lot more people live in Lubbock County than Webb, much less Jim Hogg, for heaven's sake, but because border security has been prioritized over indigent defense, they receive less federal grant money. And that doesn't even speak to the enormous pots of state money from the general fund the Governor distributed along the border on top of this federal pork.

It's possible the timing is fortuitous to attack this disparity in the distribution of Byrne/JAG grants. These are block grants distributed at the discretion of the Governor. But the Governor has likely gotten all the political mileage he can out of his border security message (it didn't do him much good, for example, in the presidential primaries), especially now that economic malaise and the Obama Administration (or do I repeat myself?) have functionally combined to reduce the illegal immigration deluge Perry decried with such anguish in his 2006 and 2010 campaigns. Indigent defense is something virtually every county is struggling with, and this might be a good moment for the governor to pivot on this question, much as he did in 2006 to eliminate Byrne/JAG funding for drug task forces, a move which many saw as flying in the face of his "tough on crime" image.

Finally, on a seemingly tangential yet pivotal, related subject, none of that will matter for Texas counties which can't get 90% of their old case dispositions inputted into the state's data system by September 1. These are Byrne/JAG funds are precisely the grants the Governor's Criminal Justice Division said they would stop doling out to counties that didn't begin reporting case outcomes. So border counties, in particular, had better start getting their ducks in a row. Here are the rates of case disposition from border counties recorded with DPS according to data released when the Governor's office announced the new data-entry requirements:

Brewster: 57%
Cameron: 43
Culberson: 28
El Paso: 81
Hidalgo: 73
Hudspeth: 2
Jeff Davis: 25
Kinney: 54
Maverick: 30
Presidio: 20
Starr: 19
Terrell: 27
Val Verde: 69
Webb: 30
Zapata: 3

Source: DPS (pdf)

So some of these counties - not to mention more than a few others around the state - may become ineligible for Byrne/JAG money after September 1. If that happens, the Governor should push to remove the restriction on funding indigent defense with JAG funds and use freed up money to finance the same mission being promoted at the Indigent Defense Commission. The Governor has said many times that defending the border is the feds' job and he's spending mind-boggling sums there in Texas resources and manpower to do a job the feds won't do. Well they're doing it now. It's time to declare victory and repatriate those resources back to Texas' domestic needs, letting the rest of the state benefit more proportionally from the federal tax dollars they send to Washington. Indigent defense is something virtually every Texas county struggles with. Why not remove that requirement and focus some portion of Byrne/JAG grants on indigent defense projects, just as the GAO and the Constitution Project say other states have done?

Either way, the Governor's Criminal Justice Division should change its rules to eliminate the ban on JAG grants for "legal services for adult offenders." There are no shortage of worthy programs to finance, and the maximal emphasis on border grants, especially to the smallest counties, has gone on well beyond the point where increased utility justifies the cost.

Reduction in federal pork one cause of reduced Texas traffic tickets

A commenter on the last Grits post suggested that a key reason the number of traffic tickets written by Texas police went down last year in Austin and elsewhere may have been cuts to the "Selective Traffic Enforcement Program" (STEP), which are federal pass-through grants distributed to law enforcement through the Texas Department of Transportation to pay for overtime devoted to traffic enforcement. And indeed, that may partially, but not fully, explain the recent decline in traffic tickets written by Texas police.

Searching around on TXDOT's website, I found this memo to law enforcement agencies (pdf) from April 2011 detailing 30% cuts to STEP grants - from $20.2 million to $14.2 million statewide - with a table at the end showing how much each department's grants were cut.

Houston, which has seen its number of traffic tickets decline, lost $360,000 with the reduction in STEP grant funds; Dallas' grant fell by a like amount. The Department of Public Safety took the biggest hit with a $424,521 reduction.

Austin lost about $158,000 in grant funding for overtime with that 30% reduction - not chump change, but not remotely enough to account for the 26% reduction in tickets they recorded in 2011. Austin PD says it wrote fewer tickets because of a policy change - "because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183" - which seems like a more plausible explanation.

Plus, data from the Office of Court Administration showing a statewide decline in tickets processed in municipal court covered the state fiscal year from September to August, so cuts that took effect April 29 wouldn't have impacted most of that year. In other words, there are indications the decline in ticketing a) predated cuts to STEP grants and b) are too large to be completely explained  by them. That's certainly one of several contributing factors, though, and perhaps reason to think the trend might continue in the near term without local traffic enforcement getting artificially pumped up through federal pork.

See related Grits posts:

• Austin police gave 26% fewer traffic tickets in 2011
• Most larger Texas police departments wrote fewer traffic tickets in 2011
• Why are Texas cops writing fewer traffic tickets?

DPS outsourced key border security tasks to shadowy private contractor

Here's a story that should have been broken by a Texas publication, but credit must instead go to Tom Barry at Alternet for a remarkable piece of reporting titled "Who Is Securing the Texas Border? How Private Contractors Mislead the Public, Then Get Rich Off Taxpayer Money."

Since 2006 many of the key figures in state-led border security operations and information campaigns have identified themselves as DPS employees or part of the Texas Rangers to the public, policy community and the media, disguising their true identities.

The business card he handed me during the sheriffs meeting identified Sikes as the director of the Border Security Operations Center (BSOC) – which is a type of fusion center for border-security operations in Texas. It’s a project of the Texas Rangers Division, which in turn is a branch of the Texas Department of Public Safety (DPS).

However, Mac Sikes is neither a Texas Ranger nor a DPS employee. Like most of the other key figures behind the Lone Star State’s border security campaign, Sikes is a contract employee.

A “senior operational analyst” at Abrams Learning & Information Systems (ALIS), Sikes became director of BSOC as part of the firm’s $3-5 million annual contracts with DPS since 2006. The recent DPS decision -- in response to a public records request -- to release the ALIS contract revealed the true identity of Sikes.

The Border Security Operations Center is the nexus of the Texas’ own border security initiatives, collectively known as Operation Border Star. ALIS, a homeland-security consulting firm with offices in Arlington, Virginia, was founded in 2004 by Ret. Army Gen. John Abrams to cash in on the billions of dollars in new government contracting funds that started to flow after the creation of the Department of Homeland Security in 2003.

Since 2006 ALIS functioned as the hidden force behind virtually all non-federal border-security operations in Texas. Whether it’s strategy formulation, border crime-mapping, operations management, or public relations, ALIS and its team of consultants have been closely involved in creating what Governor Rick Perry calls the “Texas model of border security.”

Says Barry, "It would be hard to exaggerate the degree to which Governor Perry and DPS Chief McCraw have outsourced state border-security, homeland-security, and public-safety programs to Washington Beltway contractors." Further, and this is certainly accurate, "There has been absolutely no review by policy makers or by the public of DPS outsourcing of border-security strategy and operations." Maybe now it will come.

In addition, wrote Barry, a February report (pdf) from the Texas state auditor found a number of irregularities with federal grant spending:

The audit reviewed a representative selection of cases among the $265.9 million in federal grants and subgrants to DPS -- in the areas of homeland security, border security, emergency management, and law enforcement interoperability.

Among the findings of negligence and incompetence were these startling instances:

• A draw-down of $755,509 in federal funds to issue a duplicate payment to one subgrantee.
•  Five of the six procurements (83%) examined by the auditor in the cluster of federal grants for homeland and border security were not bid competitively as required.
• DPS categorized four of the five procurements examined by the auditor as “emergency procurements,” and in three of those four DPS was unable to document why they were processed as “emergency” contracts.
• DPS has no system to track, administer, monitor federal subgrants – as federal guidelines require, leading to routine occurrences of duplicate payments, dipping into one federal fund to pay for unrelated programs, and failure to submit required reports and audits.
• Complete failure to track interest rates on unused federal funds and to remit those funds, as required by federal grant guidelines.
• Access to law-enforcement databases by contract programmers who lacked proper authorization or clearance.

This is a good example why Grits is under the impression that Texas would benefit from more original reporting on criminal-justice topics. Our media should have picked up on the outsourcing of border security operations long ago, but not a single reporter (MSM or otherwise) regularly attends meetings of the Public Safety Commission, much less covers the agency in remotely the level of detail, say, that the Austin Statesman's Mike Ward does for TDCJ. There's just a vacuum of coverage on the agency's activities that journalism should but doesn't routinely fill. I'm happy Mr. Barry wrote the piece, but every political or crime-beat reporter and editor in Texas should be kicking themselves for having missed the story for the last half-dozen years until after the practice is a fait accompli.

See more at Barry's blog, Border Lines.

MORE: From the Austin Statesman.

Few counties seek funding so far to update case disposition data

So far, Travis and Webb are the only two Texas counties to apply to the Governor's Criminal Justice Division for extra funds to pay for updating their case disposition data, reports the Odessa American. The CJD issued a memo last month saying grant funds will be cut to counties that don't update their 2006-2010 disposition data to include at leat 90% of arrests. The story describes a bit of behind-the-scenes pushback from counties:

Donald Lee, the executive director of the Texas Conference of Urban Counties, said the statistics are misleading and even prevent most counties from reaching the goal.

“You can never get to 100 percent in the most recent years because 100 percent is all arrests reporting disposition,” he said. “If you don’t dispose of a case (in court), even for good reason, you didn’t report the disposition.”

Many of the most serious crimes in Ector County, such as capital murders and sexual assaults, can take up to three years or longer before they go to trial, and Lee said such cases would count against a county.

Because of this, the TCUC, Texas Association of Counties, County Judges Association, Texas Association of Regional Counsels of Government, Texas District and County Attorneys Association, Department of Public Safety and CJD have come together to discuss what could make the process better and help counties reach attainable reporting goals.

“We are really encouraged in the governor’s office approach to improving it,” Lee said. “I wouldn’t say it has been a fight. The governor’s office has been very receptive to the issues counties have been addressing.”

Grits doesn't agree that these data are misleading, nor is it accurate IMO that a significant number of FY 2010 cases remain unresolved. The handful of capital murder and rape cases that drag on for years won't remotely account for 10% of arrests. And there shouldn't ever be an instance where counties simply "don’t dispose of a case (in court)." Whether the case is prosecuted or dismissed, SOMETHING happens with it.

The American also alleges data-entry problems on the state end that could interfere with counties meeting the governor's goals.

Ector County Judge Susan Redford said technical issues with the state’s reporting system have kept Ector County limited to the 84 percent it has reported from 2006 to 2010.

“The (Criminal Justice Information System) is overwhelmed and not accepting a lot of the reports at this time due to technical difficulties,” she said.

This whole issue has been a bit of a sleeper and I'm surprised the press hasn't paid  more attention to it. Grits supports the governor's new requirements, believing that the failure to include case dispositions in state data creates significant problems and unintended consequences for individuals, particularly those with dismissed cases, pled-down charges, etc.. Counties won't reach 100%, especially for the last year or so of the range, but they're not being asked to, and 90% is an eminently reasonable compromise. (Make me philosopher-king and I'd have put it at 95%.) In most cases, there's no good reason for failing to record dispositions from two or more years ago except, basically, a lack of want to. If massive Harris County can meet the new standard, and they do, all the other counties whose data is insufficient really don't have much of an excuse.

• What grants might be cut if counties don't improve crime data?
• Most Texas counties don't meet governor's new crime data criteria, may lose grants
• Governor's office will withhold grants for counties not updating criminal histories

What grants might be cut if counties don't update crime data?

Earlier this week Grits published a list of Texas counties at risk of losing eligibility for federal Justice Assistance Grants if they don't meet minimum standards for recording judicial data, and at the time I asked the Governor's office for a list of those grants: Here are the grant awards for 2012 so far; they aren't in every county, but a lot of the bigger ones and all those along the border. Grant awards include funds for quite a few drug, mental health and other specialty courts, equipment purchases, border security grants, overtime pay, and an array of other specialized projects. Counties may become ineligible for these grant funds, the Governor's Criminal Justice Division has announced, if they don't update records to include at least 90% of criminal case dispositions from '06-'10. The CJD  has said they're willing to assist counties with grant funds to upgrade local data systems.

Most Texas counties don't meet governor's new crime data criteria, may lose grants

Grits mentioned earlier this month that the Governor will withhold a portion of federal grant funding from counties beginning next year if they don't adequately update criminal history records, particularly dispositions of cases after an arrest has been made. Of the largest counties, Harris and Bexar have no worries, but Dallas, Travis, Tarrant, El Paso, and many other counties all have significant remedial work to do to avoid losing grant funds. (Find a complete list of non-compliant counties below the jump.) I asked the Governor's office for a copy of the memo, and here's the text:

Feds nix grants subsidizing SHSU crime lab

Texas' newest crime lab, run by Sam Houston State University in Montgomery County, opened in 2010 with the promise of three years of federal startup funding. But after budget cuts associated with raising the debt ceiling, that funding dried up and the lab has had to nearly double some of its fees. Reported the Conroe Courier (Jan. 6):

The Sam Houston State University Regional Crime Lab, which is operated by the university’s College of Criminal Justice and located in The Woodlands, started taking evidence from five counties, including Montgomery, in November 2010. A $1.5 million federal grant got the lab up and running.

But those agencies using the lab had agreed to three years of federal funding, after which the lab would complete its transition to becoming self-sustaining through fees, said Assistant District Attorney Warren Diepraam, chief of the Vehicular Crimes Division for the Montgomery County District Attorney’s Office.

Diepraam said District Attorney Brett Ligon and SHSU officials have asked U.S. Rep. Kevin Brady, R-The Woodlands, to help find additional federal funds to supplement the fees paid by agencies.

“We are hopeful some funding will be found,” Diepraam said.

Montgomery County supplied 86 percent of the lab’s business, and the lab was charging a $200 flat fee for all drug and alcohol tests, Diepraam said.

Now, with the cut in funding, the lab will charge agencies $386 for alcohol tests and $290 for drug toxicology tests used for driving while intoxicated cases.

From November 2010 to October 2011, the lab ran 1,034 drug toxicology tests and 900 of those were from Montgomery County, Diepraam said. During that same time period, the lab analyzed 4,335 controlled substance evidence items, with 86 percent of them coming from Montgomery County, according to a casework overview by the lab.

The Regional Crime Lab will continue to run the drug toxicology and blood-alcohol tests, but all controlled substance evidence tests now will be sent to the Texas Department of Public Safety lab in Austin.

The average length of time for the Regional Crime Lab to turn around controlled substance tests is about two weeks, while the DPS lab can take up to nine months because of the volume of cases it gets from across the state, Diepraam said.

So the the county can pay $290-$386 for testing at the lab and get results back in 2 weeks, or send the sample to DPS and have it done for free, but not see results for up to nine months.

Unaddressed in the story, though, are the costs of delay: If the defendant is unable to make bail, say, in a controlled substance case, that also tacks on thousands of dollars in additional jail costs while wating for tests to come back. When that happens, the overall cost-benefit analysis still favors using the local lab, even at the higher price. Problem is, different revenue streams pay for lab testing and the jail, with different elected officials managing each sliver of the process. So budget myopia may cause prosecutors to send out for testing, even if in the long run it costs Montgomery County more money.

Attorney Paul Kennedy at The Defense Rests adds an additional concern about a possible fix suggested by the local DA:

MoCo District Attorney Bret Ligon now wants to use the asset forfeiture fund to pay for the tests.

The problem, of course, is the increased incentive to seize property and file forfeiture actions against defendants. Forfeiture actions serve to tie up defendant's assets and make it that much harder to muster a defense against the state. You will also find out that the vast majority of defendants either default or negotiate settlements in which they receive just a portion of the value of the items seized. The asset forfeiture funds then become a private slush fund for whoever's running the DA's Office (just ask former MoCo DA Michael McDougal). Of course there's no telling where the property seized in Tenaha went.

For the reasons mentioned above, I understand why the DA would want to subsidize the lab. But I agree with Kennedy it's problematic to rely on asset forfeiture funds for any government entity's base budget. Back when Texas used grant money to prop up dozens of regional narcotics task forces around the state, many of those local entities used asset forfeiture funds to pay for local matching under their grants, leading to skewed enforcement priorities.

Grits' view: By the time you add in additional jail costs from delays, the county in most cases is still better off paying to process cases more quickly. Balking at a $300-$400 fee seems foolhardy when the result is $40-$50 per day extra jail costs for up to nine months. (The phrase "penny wise, pound foolish" comes to mind.) The criminal justice system is just that, a system, with a lot of moving parts, so one can never look at cost figures like this in isolation. It's common for "savings" in one part of the system to result in even greater costs elsewhere. So federal subsidies are nice, but if Texans want a massive criminal justice system that, at any point in time, supervises more than 3/4 million adults in prison, jail, on probation and on parole (roughly the population of Austin), then paying for ancillary services like crime labs is an unavoidable expense.

Kennedy suggested three takeaway lessons from the episode: "First, for entities involved in the criminal (in)justice system who rely upon government funds to operate - those funds will diminish or vanish at some point, even if the entity  is there to help the state. Second, the lab should have charged a more realistic rate for their services; the excess would allow for a "cushion" when the funding was cut or dropped. Third, no one gives a rat's ass about the people accused of committing a crime." That pretty much sums it up.