Roundup: Lawsuit alleges cronyism and corruption at DPS; murder indictment of Dallas cop no aberration under outgoing DA; informant testimony makes for messy innocence claims; Pam Colloff's favorite #cjreform podcasts, and other stories

Here are a few browser-clearing odds and ends of which Grits readers should be aware:

Dallas cop indicted for Botham Jean murder
In Dallas, former DPD Officer Amber Guyger has been indicted for murder in the shooting death of her unarmed neighbor, Botham Jean. You've got to hand it to outgoing Republican DA Faith Johnson: She's been more willing to charge officers in wrongful shooting episodes than any Democratic elected prosecutor in Texas, or for that matter, as she boasted in this 13-second clip from the campaign trail, any other District Attorney in the country:


Lawsuit: DPS suffers from 'cronyism,' 'corruption'
A federal lawsuit has been filed accusing the Texas DPS under Col. Steve McCraw of "a 'good old boy' culture of cronyism and outright corruption." See initial coverage from KXAN in Austin.

Corrections Committee Interim Report out
The TX House Corrections Committee has published its Interim Report. Topics studied included responses to Hurricane Harvey, the need for specialized programming for 17-25 year olds, flaws in the state jail system, and heat litigation. More on this soon after Grits has had a chance to read it thoroughly.

Creuzot looking forward to Dallas DA stint
D Magazine published an interesting interview with Dallas DA-elect John Creuzot, for those looking for clues as to how this party hopping fixture in Dallas justice politics might operate at the helm of the DA's office. See the October Reasonably Suspicious podcast for excerpts from a debate between Creuzot and his Republican-incumbent opponent, Faith Johnson; the full 1.5 hour debate is here. Note to Judge Creuzot and other incoming elected prosecutors: Consider hiring this guy for prosecutor trainings.

Forum promotes public defender option for Travis County
A public-defender office has been proposed for Travis County. Those interested should check out this recent community forum discussing the possibility. See prior, related Grits coverage.

TDCJ troubles lead to calls for independent oversight
At the Texas Tribune, see coverage of prospects for independent oversight at the Texas Department of Criminal Justice in light of recent scandals, a rise in suicides, and gross understaffing at numerous rural units. House Corrections Chairman James White doesn't sound convinced.

Recanted witness, corrupt DEA agent won't sway Harris prosecutors on innocence claims
Especially in the context of the drug war, but also high-profile murders and violent crimes, the reliance of the justice system on self-interested testimony by confidential informants is one of the most significant causes of wrongful convictions. It's also among the hardest causes to prevent, and one for which the courts are loathe to provide redress. The Houston Chronicle's Keri Blakinger describes a case in which a DEA informant, who has since recanted his testimony, accused Lamar Burks of murdering someone at a dice game. But the Harris County Conviction Integrity Unit wouldn't budge. Now, one of the agents centrally involved with the investigation has been indicted in an unrelated case in New Orleans for perjury and falsifying evidence, evincing a similar fact pattern to what Burks' attorneys allege.

In The Dark shines light on amazing, terrible case
At Pam Colloff's recommendation, I've been listening to Season 2 of the podcast, In the Dark, focused on an apparent false conviction for a quadruple murder in Mississippi. This investigative tour de force is taking the form to new levels. Awesome work, as detailed in this Longform podcast interview about how the story was put together. When I interviewed her for the August episode of Reasonably Suspicious, Pam also recommended the second season of the Missing and Murdered podcast, and the podcast After Effect from WNYC, dissecting the aftermath of a tragic SWAT team raid. Just for fun, I excerpted her recommendations into a short, 2.5 minute clip, for anyone interested:


Sandra Bland documentary premiers on HBO Monday
Last, but definitely no least, on Monday, a documentary titled, "Say Her Name: The Life and Death of Sandra Bland," premieres on HBO. Grits simultaneously cannot wait to see it and dreads the broadcast. It's such a terrible, heart breaking story! Here's a review from the SA Express News, and the trailer:

Say Her Name: The Life and Death of Sandra Bland Promo Cutdown

Forgotten by the system: State has no idea how many Texas youth have incarcerated parents

I just ran across this presentation from the Texas Legislative Budget Board to the Texas House Corrections Committee from May regarding children of women incarcerated in Texas state prisons.

The main thing Grits took away from the presentation was that Texas doesn't appear to keep track of this issue very closely. They provided national estimates I'd seen before on how many incarcerated women have kids, but TDCJ doesn't know how many prisoners are mothers (or fathers) or how many children each has, much less where those kids are. Nor does Child Protective Services keep track of how many removals involve children with incarcerated parents. The schools, certainly, aren't keeping track.

What little Texas does know about these kids is unimpressive. For example, they know how many women gave birth after entering TDCJ: 561 over the period 2015-17, with 9.3 percent ending up with CPS and 71 percent with the fathers.

A mentoring program aimed at children of incarcerated parents, Amachi Texas, had a two-year budget of $1.3 million for FY 2018-19, said LBB. But that's not much annually for a statewide program with tens of thousands of kids potentially eligible. Anyway, since no one has bothered to identify children with incarcerated parents, clearly the Amachi program couldn't locate most of them to mentor, regardless, and isn't funded to meet such a gaping need. 

Though it's not an original line, I've repeated many times on this blog that you cannot manage what you can't measure.

Given the extent to which having an incarcerated parent is a significant risk factor for children to later engage in crime, providing support for them while their parent is away conceivably could have significant crime-deterring effects. But Texas can't even define the scope of that problem, much less measure inputs and outcomes to see what works best to prevent crime among these youth. They have been forgotten by the system.

With just a bit of ramp-up time, it wouldn't cost TDCJ or CPS much to identify youth with incarcerated parents. As soon as they began, we'd understand a lot more about the scope of the problem and the state could begin planning to address the needs identified. In addition to mentoring, some kids may need tutoring, transportation assistance, clothing vouchers, access to summer programs, jobs and internships; there is all sorts of stuff youth in that situation might need. And anyone interested in promoting long-term public safety should be anxious for the state to help. Without better information about them, though, it's a pretty safe bet nothing will happen.

James White on 'small tyrannies' and Texas' 'criminal-justice dividend'

In the latest "Reasonably Suspicious" podcast from Just Liberty, we broadcast a brief excerpt from a conversation between me and Texas House Corrections Committee Chairman James White. Here's our full conversation, for anyone interested:

Find a transcript below the jump:

Government doesn't know how many people it shoots, and other stories

Grits has a busy day today so let's round up a few items which might have made it into individual blog posts if I had more time.

Come Correct
Right on Crime published this blog post on the Texas House Corrections Committee's new interim report. See Grits coverage of that document here, here, and here.

Forfeiture target of property-rights push 
Efforts are ramping up on the right to require criminal convictions for asset forfeiture in Texas. See coverage from the Texas Observer,  Hot Air, the Dallas Observer, and Legal Insurrection. Go here to ask your Texas legislators to support these efforts.

Not all costs of failing to 'raise the age' come in budget
After Grits made the link on Monday, advocates and media in Houston and at the capitol invoked 17-year old Emmanuel Akueir's suicide in the Fort Bend County Jail as an argument for raising the age of adult criminal responsibility to 18. The Houston Chronicle coverage included an interview with his family. "'Emmanuel was a minor who was put with adults who've lived the criminal life and are well aware of right and wrong,' said sister Iman Akueir. 'He was a child and treated like an adult. There's no excuse about what happened. Children are children.'" Added an attorney at the capitol event: "'If we had passed this last session, that 17-year-old would not have been in that facility. So we're talking lives here. ...  If you want to talk about costs, ask his parents about costs."

Government doesn't know how many people it shoots

Grits contributing writer Eva Ruth Moravec reported that the Texas' new reporting of police shootings omitted 16 cases last year, calling into question the lack of enforcement mechanism in the law to compel agencies' participation. This tells us the omissions identified by academics in the state's death-in-custody reporting persist in these new police shooting reports. Indeed, the state has struggled to get a handle on how often police officers shoot or kill Texans. Readers may recall that another Grits contributing writer, Amanda Woog, last year determined that the Attorney General had miscounted the number of police shootings, overstating the number or reports they'd received by 20 percent. So the new reporting system is missing quite a few reports, and the AG has bungled analysis of the ones they do get. The bill from last session creating these reports was an important first step, but the law needs to be tweaked to plug these gaps and give it some teeth when agencies don't report.

Oklahoma!

Oklahoma Gov. Mary Fallin continues to push criminal-justice reforms. Wish she could convince fellow Republican Greg Abbott to do the same.

Punishing prosecutors

From the abstract of a new academic paper: "This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with members of attorney disciplinary bodies who have not investigated widely publicized prosecutorial misconduct. "

How capitalist competition boosted drug cartel efficiency

This interview by Vox with Sanho Tree is worth a read. IMO his central thesis is hard to argue. The drug war has focused for generations nearly exclusively on low hanging fruit, allowing its proponents to mistake activity for achievement without ever seriously threatening the biggest players. Meanwhile, cartel leaders have perfected their craft and devised structures that all but completely insulate them from accountability and ensure that big fish get off, while little fish get eaten. Thought provoking stuff.

Corrections committee contemplates non-violent drug offenders

"The original intent of state jails fell apart," according to the section of the Texas House Corrections Committee's interim report (pp 43-61 of pdf) on nonviolent drug offenses, because the Legislature prioritized incarceration for addicts over treatment.

Who is nonviolent?
From the committee's perspective, "Nearly 80 percent of individuals in the Texas criminal justice system have substance abuse problems. Substance abuse is by far the most common crime-related problem among offenders. Some individuals enter the justice system because of a drug charge. Others enter on other charges, but drugs are clearly implicated." The report acknowledged the penny-wise-pound foolish flaw in such thinking: "if you are incarcerating the same person over and over again, the costs to actually rehabilitate would be less than incarceration."

Grits should mention here that Fordham law professor John Pfaff has been pushing back on this meme that addiction and the drug war drive crime and mass incarceration. He tends to blame reformers like New Jim Crow author Michelle Alexander for overstating the role of the War on Drugs in promoting the modern prison state. Pfaff points out that offenders convicted of violent crimes far outnumber inmates convicted of drug offenses in US prison systems, a pattern that also holds for Texas. But he poo poos the idea that drug abuse is a causal factor for other crimes.

By contrast, in Grits experience, the idea that drugs are responsible for most crime has historically been a law enforcement meme that reformers had to respond to, even if now Prof. Pfaff would blame us for engaging in the debates of the day without benefit of 20/20 hindsight. Moreover, there's little doubt drugs play a role in some portion of violent offenders' cases. In Dallas, for example, the interim chief blamed their recent murder spike in part on armed raids of drug houses by competing cartel factions. And back when murder rates were super high in the early '90s, much of the carnage stemmed from drug dealers feuding with one another over turf. So some unquantified amount of violence certainly does stem from the drug war (though what ratio, Grits cannot form even an educated guess).

Indeed, the committee's definition of "violence" may be more expansive than Prof. Pfaff's. They identified 46 low-level drug possession crimes on the books, but concluded the list by opining that, while the laws "are technically considered non-violent, they are not emotionally non-violent."

Whatever one's definition, non-emotional violence has declined over time in Texas, while low-level drug convictions continue to rise. "While the overall number of people sent to prison dropped between 2011 and 2015, the number of people sentenced to state jail for drug possession was two percent higher in 2015 than in 2011. It costs the state more than $67 million to incarcerate people in state jails for low-level drug offenses in 2014."

State jails evade prison oversight
The committee heard testimony from a few people who thought state jail terms for drug offenders should be lengthened so that (mostly nonexistent) treatment programs will have time to work. But the committee wasn't interested in the extra expense. They also raised in passing an interesting notion Grits hadn't considered in years - that state jails were created as a separate entity from the formal prison system in order to take these prisoners out from under prison oversight litigation:

An interesting side note: one of the reasons the state jail system was created was to ease overcrowding in the prison system and the county jails. But the fact that they are meant for short-term confinement means that they do not fall under Ruiz constraints. Lengthening the confinement period could result in future litigation revolving around these facilities.

I'd forgotten about that distinction. Grits tends to agree that state jails are a failed experiment and the original intent behind them was long ago supplanted by the state's 90s-era incarceration fetish. At the end of the day, promises of treatment and rehabilitation were a fig leaf to justify building new beds that wouldn't be subject to prison oversight litigation. One could add, those who do not learn from history are doomed to repeat it - the intermediate sanctions facilities created in 2007 similarly would be excluded from Ruiz prison oversight regimens because of short lengths of stay. At the time, to my knowledge, no one in the advocacy community considered that element.

Recommending a path forward
The committee's recommendations on punishing drug users track some of items Grits predicted last year would rise to the fore of justice discussions this session:

Legislators should consider lowering the penalties certain felony drug charges that are considered non-violent in nature. For instance, drug activity in a school zone automatically becomes a felony, when an individual may not even be aware they are in a school zone. Specifically, charges that involve personal possession of small amounts of marijuana should be examined. This means possession ONLY, not manufacturing and/or delivering. Offenders should still be considered for a treatment program, no matter if the charge is reduced to a misdemeanor. 

Further, regarding enhancements on drug crimes:

Legislators should consider narrowing the scope of penalty enhancements, particularly offenses committed in drug-free zones. Such zones can be difficult to distinguish, especially in urban areas. Obviously, there is a difference between someone selling a controlled substance to a minor on school property, and a motorist being stopped in a school zone with a controlled substance in his car. This committee is not advocating a free pass for any offender, rather the circumstances of the violation and previous arrest records (if any exist) should be taken into account. 

They recommended funding a system set up in 2011 to incentive probation departments not to revoke petty offenders. Moreover, "Pre-trial release programs should be considered for non-violent offenders, to make room for those who need to be there."

See prior Grits coverage of other sections of the committee's interim report:

• Committee backs boosting programs to prevent recidivism
• House Corrections Committee rethinking probation fees

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.

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.

Upcoming crimjust Lege hearings

There are four criminal-justice themed committee hearings next week in the Texas House of Representatives that may merit Grits readers' attention (links go to the agendas):

House Criminal Jurisprudence (Oct. 7, 10 a.m.): Regulating sale of criminal histories; consideration of crimes outside the penal code in terms of mens rea and the rule of lenity; expunction and non-disclosure orders; the effectiveness of graffiti laws; and the effectiveness of state jail system and the use of probation for state jail felonies.

House Homeland Security and Public Safety Committee (Oct. 7, 2 p.m.): Will hear an interim charge related to emergency planning and receive updates on border security operations, the aftermath of the West fertilizer plant explosion, and draft legislation on the Driver Responsibility Surcharge.

House Corrections (Oct. 8, 10 a.m.): "Assess the impact of school discipline and school-based policing on referrals to the municipal, justice, and juvenile courts, and identify judicial policies or initiatives designed to reduce referrals without having a negative impact on school safety."

House Corrections (Oct. 8, 1 p.m.): Evaluate facilities, programming and reentry services at the Texas Juvenile Justice Department.

Committees begin to hear criminal justice bills

Texas legislative committees are finally beginning to consider bills, with the first criminal-justice related legislation up for hearings today and tomorrow.

This morning at 8:30 a.m., the House Insurance Committee will hear HB 361 by Anchia which would expand the ability of exonerees to purchase health insurance at state rates to their spouses and dependent children. Anyone with a family knows that having everyone covered under the same insurance policy makes lots of sense, and since exonerees are paying for the insurance out of their own pockets, there would be no fiscal impact. This is a small bill, but it's surely important to exonerees, a couple of whom I believe are coming to town to testify.

Later on, at 10:30 a.m. or after the full House adjourns, the Criminal Jurisprudence Committee will consider legislation for the the first time, though only three bills are up in their first session.

HB 61 by Guillen is an enhancement for arson, boosting penalties from a second to a first degree felony for setting fire to an agricultural facility or a state park. Readers already know how I feel about enhancements: If the prospect of a second degree felony won't deter someone, changing it to a higher penalty - that most offenders will never know was altered until they're charged - won't increase that deterrence. The bill's  "fiscal note" was deemed insignificant, though that's not really true. With prisoner health costs alone at more than $9 per day, any extra inmates incarcerated for longer stretches will cost the state more money in the long run.

HB 153 by Taylor alters definitions in the law banning sale of firearms to intoxicated persons, deleting a more general definition and adopting the same one used for drunk drivers, including a BAC level of .08. The change seems mostly nonsubstantive, though it slightly broadens the scope of firearm sale prohibition. It's unclear to me how gun sellers are supposed to know if someone's BAC is at .07 vs. .09.

HB 70 by Fletcher is perhaps the most substantive of the three, changing what attorneys refer to as "The Rule" to allow one, designated prosecution witness who may be in the courtroom while others testify. Traditionally, witnesses aren't supposed to be in the room so their testimony won't be tainted by what they hear from others. If the designated witness getting to attend the hearing is a police officer, that person would be forbidden from wearing their uniform in court. The defense side, of course, would not be afforded the same privilege. Houston defense attorney Paul Kennedy last session argued that the bill is "a solution for a problem that doesn't exist. The only purpose is to make it easier for the state to obtain convictions."

Tomorrow, the House Corrections Committee will hear bills for the first time. They too have just three bills on the agenda.

HB 144 by Raymond expands the scope of "mental examinations" of juvenile offenders to include diagnosing substance abuse.

HB 431 by Riddle (which seems like it ought to have a fiscal note, though as of this writing one hasn't been posted) would expand the categories of offenders ineligible for release under "mandatory supervision," a category which only includes offenders convicted many years ago before the Lege modified "mandatory supervision" to become (oxymoronically) "discretionary mandatory supervision" if the offense involved a child victim. That's already the case for the most serious offenses. Riddle's bill would expand the prohibition to second and third degree felonies, forcing TDCJ to incarcerate those individuals longer. Hard to see how that wouldn't have a budget impact.

HB 634 by Farias would require TDCJ to verify inmates' veteran status via lists held by the Health and Human Services Commission and assist them (presumably upon reentry) with applying for benefits for which they may be eligible from the federal Department of Veteran Affairs. The fiscal note says there would be one-time automation costs to perform this function but suggests the duties could be absorbed in the agency's current budget.

And of course I'd already mentioned that the House Transportation Committee today will consider bills related to banning texting and/or talking on a cell phone while driving.

The game is afoot!

Fewer members on Corrections Committee, but who will be chair?

Looking at the new Texas House rules, I noticed a couple of changes that may interest Grits readers: The size of the Corrections Committee will be reduced from nine to seven members, and the Government Efficiency and Reform Committee has been given control of "open government matters, including open records and open meetings," which in the past had fallen under the purview of State Affairs.

The $64 question remains, "Who will chair criminal-justice related committees in the House?" The chairs of Corrections, Criminal Jurisprudence as well as Homeland Security and Public Safety all departed from the Legislature after last term, leaving a gaping hole in leadership on these topics in the lower chamber.

Prominent committee chairmen leaving House criminal justice posts

House Corrections Committee Chairman Jerry Madden and House Criminal Jurisprudence Chairman Pete Gallego have both announced they won't run for reelection next year, reports the Austin Statesman. Both will be missed by criminal-justice reformers.

A Craddick Republican loyalist, Jerry Madden was the House architect of Texas probation reforms that reduced incarceration rates and avoided new prison construction during the first decade of the 21st century, while Gallego, a West Texas Democrat, was the House author of much of Texas recent "innocence" legislation, including insisting that police departments have written eyewitness ID procedures and requiring corroboration for the testimony of jailhouse informants. I think Gallego may have been the only legislator under the pink dome who actually understood the ins and outs of habeas corpus proceedings. Both men had the kind of tactical know-how only years of experience can bring. As a nationally respected GOP reformer, Madden's voice will be especially missed as chairman. His storied partnership with Senate Criminal Justice Committee Chairman John Whitmire made possible a series of reform bills that nobody expected but which have saved the state hundreds of millions in incarceration costs during a period of declining crime.

The problem is these are complex topics where every decision affects multiple, disparate institutions from the local to county to the state and occasionally even the federal level. For their first few sessions, most legislators are baffled by what to do on criminal justice subjects beyond whatever seems "tuff," and usually only more seasoned veterans like Gallego, Madden, Ray Allen before him on Corrections, or John Whitmire and Rodney Ellis on the Senate.side demonstrate the cojones to pursue more serious reforms.

My hope is that the Speaker replaces Madden on Corrections with somebody who, like his or her conservative predecessors, is a respected veteran committed to keeping costs down. If that remains the goal, then no matter who replaces Madden, basically the same array of policy choices will confront them: either spending potentially billions to build more prisons or plowing forward along the alternative path Madden and Whitmire began to forge. The pair weren't named Governing magazine's 2010 Public Officials of the Year for nothing.

The House Criminal Jurisprudence Committee, by contrast, while it has passed significant "innocence" legislation, much of it carried by Pete Gallego, has never been on board with de-incarceration reforms passed in other committees. Instead they passed dozens of new crimes and enhancements each session under Gallego's leadership, even as the Lege adopted other measures, mostly through the Corrections Committee, to reduce the prison population.

Criminal Jurisprudence needs to continue its innocence work, but it would benefit from a new small-government focus to consolidate the goddawful mess created by piecemealing together dozens of new crimes and enhancements every session. In many ways, Gallego's not personally to blame that the committee operates that way; the committee has always operated that way, which is how Texas got more than 2,400 felonies on the books. But there needs to be a concerted effort by the next chair to stop creating new crimes and enhancements, and to shift more liability, where possible, back to the civil courts. The next chair of House Criminal Jurisprudence should reconsider past enhancements, and going forward, the committee should follow the advice of the Texas Public Policy Foundation to stop criminalizing business and social behaviors that could be better regulated by other means.

The Legislature will be filled with new faces in key positions in the 83rd session. What that says about the prospects for reform depends largely on the quality of leaders who replace these chairmen and what they're willing and able to accomplish. In any event, certainly in these two committees and probably more broadly, 2013 will see a changing of the guard at the Texas Legislature. Good luck to Madden and Gallego, as well as other departing legislators, as they move to the next chapter of their lives.

MORE: Texas Insider posts Madden's exit statement.

Briefing on TYC-TJPC merger Tuesday

Those looking forward to learning more about the proposed merger between the Texas Youth Commission and the Juvenile Probation Commission, here's the event for you, at least before we get to the big hearing on Wednesday. Via email press release:

Special media briefing tomorrow on TYC/Juvenile Justice Reform with Chairman Madden and Advocates
 
Who:
Rep. Jerry Madden (R-Plano), Chairman, House Corrections Committee; Deborah Fowler, Texas Appleseed; Marc Levin, Texas Public Policy Foundation
 
What & Why:
Media briefing to discuss pending juvenile justice reform, including Madden’s bill to consolidate the Texas Youth Commission and the Texas Juvenile Probation Commission (HB 1915). This measure appears to be a continuation of the Legislature’s TYC reform efforts of relying less on remote, ineffective facilities, and instead using more local, community-based corrections and treatment alternatives that have been shown to improve public safety, improve youth outcomes, and reduce costs.
 
This briefing is to prep reporters in advance of Wednesday’s House Corrections Committee which will hear Madden’s HB 1915 upon adjournment. Madden has indicated that this bill will change throughout the committee process as a result of feedback from others, and this briefing will address those and other issues.
 
Please note that this is an informal briefing, and participants will be available for extended questions and discussions with the media. Lunch will be provided.
 
Where:
Texas state capitol, 3W.9 (3^rd Floor Conference Room above the Speaker’s Office)

When:
March 8, 2011, 12:00 Noon or upon House adjournment, whichever is later.

I suspect the event will be available online via livestream. I'll post a link in an update to this post when it's available.

Interim reports from House committees posted online

For those interested, check out the recently released interim reports from criminal-justice related Texas House committees:

• Corrections (pdf)
• Criminal Jurisprudence (pdf)
• Public Safety (pdf)

Once I've had a chance to read them, some or all of these reports - particularly the one from House Corrections - may merit their own (perhaps multiple) posts, but for now I thought I'd pass along the links for anyone interested in a preview of what these committees have been discussing over the interim (which may or may not have any relationship with what they actually do during the session).

RELATED: See Grits' earlier coverage of the Senate Criminal Justice Committee's interim report (pdf).

Media discussion on eliminating state jails lacks nuance

Coupla more stories on the possibility of revamping state jails to become more like intermediate sanctions facilities for probationers instead of little min-prisons:

• McReynolds advocating state jail changes, Lufkin Daily News, July 11
• Texas jails: Fine-tune and fund, don't scrap, Austin American Statesman, July 8

The second piece is an unsigned staff editorial from the Statesman that somewhat confusedly advocates against something no one has suggested. It's fine to review state jails for ways to improve them, they say, but "We can't, however, imagine that any such review would show cause to shut [state jails] down." Though it's unstated, the editorial seems to be expressing a vague fear that perhaps the Travis State Jail could be closed, arguing for nothing specific except to say that state jails shouldn't be "scrapped."

Probably the reason they can't imagine that outcome, of course, is that no one has suggested such a thing. Instead the idea expressed was to re-purpose the facilities - or rather, return them to their original purpose - as sanctions against misbehaving probationers instead of strictly focused on punishment with no support or supervision during reentry.

What might be usefully eliminated (and what was actually being discussed at the Corrections Committee hearing in Houston) is the "state jail felony": The offense category created in 1993 that's Texas' equivalent of a 4th degree felony. Its original purpose - to create an offense category with less stigma and more opportunities to prevent future criminality - was long ago lost to "tuff on crime" demagoguery. Today they're just little mini-prisons with shorter sentences where time is served day for day without the possibility of parole or supervision after release.

If state jail felonies were eliminated as an offense category, some offenses might be lowered to Class A misdemeanors - most obviously penny ante drug possession offenses - and others would just be re-labeled third-degree felonies, with penalties of 2-10 years. (Perhaps while they're performing such reclassifications, theft categories could finally be adjusted for inflation. Thresholds for state jail felony theft were set at $1,500 in 1993, but adjusted for inflation, $1,500 today is the equivalent of $1,027 at the time the statute was written.)

I don't know whether eliminating that offense category is a good idea or not, but discussing it has merit. It might be the shortest distance to adjusting petty drug possession penalties, removing the stigma of the "felon" label for people whose only crimes relate to small-time drug possession. That would also reduce mounting pressure on state-jail populations, possibly allowing closure of the Dawson State Jail facility in Dallas to make way for a city-backed development (which is about as close as anybody's come to calling for closing state jails per se).

On the flip side, such a change would also adjust penalties upward for certain petty offenders and at a minimum, as Sen. Whitmire points out, ensure they're housed with more serious criminals. What's more, making sure those penalties don't become excessive would require relying on the parole board, which has a track record of failing to follow release guidelines for TDCJs lowest risk prisoners. So the devil, as they say, is in the details. There are pros and cons to both approaches, but the debate would be assisted more by careful analysis in the media than vague expressions of fear.

UPDATE: From the SA Express-News editorial board, see "Time to revise the state jail system."

State Jail creators: 'Don't kill our baby'

Mike Ward at the Statesman today has an article titled "Lawmakers might scrap or revamp state jail system" which relates a development covered last week on Grits: A suggestion at the House Corrections Committee to eliminate or radically modify the state jail system. (Back in the days when they used to print news on dead trees, I think they used to call this a "scoop.") The story opens:

When Texas' network of state jails was established by lawmakers in 1993, the goals were simple: Nonviolent drug offenders, thieves and first-time offenders would be housed in separate lockups with treatment and rehabilitation programs to cut their risk of returning to a life of crime.

Now some legislative leaders are considering a plan that might do away with the Lone Star idea that once attracted national headlines.

"I think there very well may be interest in changing the current state jail system," House Corrections Committee Chairman Jim McReynolds, D-Lufkin , said Tuesday. "The recidivism rates for state jail inmates are higher than for our regular prisons. We need to consider modifying the original model. They may have outlived their usefulness."

FWIW, "Considering a plan" is probably strong. It sounded to me like members of the Corrections Committee were voicing for perhaps the first time ideas in reaction to testimony from Harris County officials about state jails' effectiveness, or the lack thereof.

Ward went for reactions to the two men who arguably are most responsible for the existence of  Texas state jail system: state Sen. John Whitmire and Williamson County DA John Bradley. Wrote Ward:

two architects of the state jail system, which holds more than 12,000 of Texas' 155,000 convicts — those sentenced for fourth-degree felonies, the most minor type — warn that doing away with the special breed of prisons would be a big mistake.

"Tell (McReynolds) it ain't gonna happen," said Senate Criminal Justice Committee Chairman John Whitmire, a Houston Democrat who authored the state jail law. "We created this system to take all the low-level drug offenders and property criminals out of state prisons so we'd have enough room to keep the violent offenders behind bars longer. The system has worked well.

"It would be a disaster to do away with state jails."

Williamson County District Attorney John Bradley, who served as a liaison for prosecutors and law enforcement groups when Texas' criminal laws were rewritten to create the state jail system, agreed.

"Instead of considering doing away with it, the state should be considering renewing its commitment to the state jail system."

Ward says Bradley served as a "liaison for prosecutors and law enforcement groups" when state jails were created, and as a purely practical matter I'm sure that's true. But as I understand it (that's a couple of sessions before my time), officially he worked as a legislative aide to Sen. Whitmire that session back in 1993. So perhaps it's no surprise that the creators of the state jail felony would not only defend it, but declare that it is the the main bulwark standing between the citizenry and the early release of violent criminals.

To be fair, Chairman McReynolds didn't actually suggest eliminating state jails entirely, but beefing up probation for petty offenders and merging state jail functions with Intermediate Sanctions Facilities - short-term, treatment focused punishment for probation violators that aim to prepare the offender to succeed upon reentry. Arguably, McReynold ideas simply return the state jail concept to its roots.

Created as a way to divert nonviolent prisoners away from a life of crime, budget cuts eliminated treatment at state jails and "tough on crime" amendments eliminated what Ward says was originally "automatic" probation. "Republican George W. Bush lambasted Democratic incumbent Gov. Ann Richards, insisting she had been soft on crime in supporting the state jail law," writes Ward. "Lawmakers subsequently changed it to mostly drop the automatic probation." So if state jails were merged with ISFs, they would once again become essentially a probation sanction instead of the little mini-prisons they've become. In that sense, McReynolds' idea would return state jails to their conceptual  beginnings, whatever name one gives to them.

Despite Whitmire and Bradley's understandable pride of ownership, not everybody agrees Texas' state jail experiment has performed so swimmingly. The Corrections Committee's discussion portrayed current state jails' "day for day" time served as fulfilling only a "punishment" function, not a rehabilitative one. In fact, the committee was told, state jails worsen recidivism, particularly among the mentally ill and other high risk groups. That's because, as McReynolds told Ward, state jail inmates leave lockup "with no supervision, no intensive treatment or programs, and their recidivism rate is as high as 34 percent, compared with about 28 percent for the inmates coming out of regular prisons."

Harris County DA Pat Lykos and Caprice Cosper, a former judge who now coordinates Harris County efforts to reduce jail crowding, were the most virulent critics of state jails at last week's hearing. Whitmire's comments were aimed at Chairman McReynolds, but it was the Harris County DA and the head of Harris County's Office of Criminal Justice Coordination who most loudly called for reform.

Chairman McReynolds wasn't jumping the gun or saying he would absolutely move on this idea, he was reacting to testimony. And as Ward later reports, far from presenting a "plan," McReynolds merely "asked members of his committee to poll local prosecutors and officials in their districts about perhaps changing the state jail concept to be more like special lockups called Intermediate Sanction Facilities, which house mostly parole violators."

Considering the most virulent critiques of the state jail system at last week's hearing came from the Houston senator's hometown DA and a former Harris County district judge who spent 16 years on the bench - not to mention the fact that 16 out of 22 Harris County felony court judges support reducing "less than a gram" penalties to a Class A misdemeanor - perhaps running the idea of reforming state jails by local officials would be a good idea for Chairman Whitmire. His belief that state jails as constituted have "worked well" isn't universally shared among Harris County officialdom.

Housing tax credits support landlords that discriminate against ex-inmates

State Rep. Harold Dutton relayed the story on Wednesday of an 80 year old man in his district who had committed a violent offense 50 years ago and was recently released after a long sentence. Now, as an elderly person, the fellow can't find housing because of his prior conviction. "I don't know if they think he's going to play loud music or throw big parties," said Dutton, but the man couldn't find a private apartment complex that would rent to him.

The House Corrections Committee heard related testimony that the Texas Department of Housing and Community Affairs does not prevent discrimination against felons by entities receiving affordable housing tax credits, and doesn't even track the issue. All their programs are strictly income based, said Kate Moore from TDHCA. What's more, there are 400 local public housing authorities with no uniform standards or screening for criminal backgrounds among them. Nationally, said Moore, one in five ex-inmates becomes homeless at some point following their release, often crashing with friends and family.

Committee members questioned whether tax-credit recipients could/should be required by agency rule or statute to rent to ex-offenders, and I wouldn't be surprised to see legislation along those lines filed in the 82nd session.

Parole, reentry, and cutting corrections costs

A few tidbits on parole stood out from my notes from Wednesday's meeting of the Texas House Corrections Committee on prisoner reentry ...

Parole board chair Rissie Owens thanked the committee for additional treatment beds and told them they were responsible for an uptick in parole rates, which is up to 31% this year, she said, and which would be (just barely) the highest rate in recent memory if it's sustained for the rest of the year. In particular, she noted, waiting lists for in-prison treatment beds have been eliminated and there's no lag time when a prisoner is told they'll be released upon completion of required programming.

We talk a lot on this blog about best-practice reforms on the probation side, but I was pleased to learn that the parole board has applied to participate in a technical assistance arrangement with the National Parole Research Center. Before parole, the committee was told, a parole "plan" must be developed, investigated and approved by the department before release. Problems creating the plan were cited as the main reason for delays in release after the parole board had granted approval (followed distantly by subsequent disciplinary violations by the inmate). On average, that process takes 43 days, the committee was told, but in extraordinary cases it can take many months.

Parole not only contributes to the equation regarding inmate population through decisions on releasing prisoners, but also by deciding who to revoke. Owens said that 19,107 parolees were reviewed last year for potential revocation, three-quarters of whom were not revoked. Parole division director Stuart Jenkins described how parole officers now use a "Violation Action Grid" that dictates intermediate sanctions that may include anything from increased reporting or supervision to a stay at an Intermediate Sanctions Facility. There were 7,460 parole revocations in 2009 out of 105,820 offenders supervised, according to the TDCJ's annual statistical report [pdf] - a respectably low ratio of just 7%. One problem facing the department, said Jenkins, is that warrants may be issued by parole officers when violations don't really justify revocation.

Of parolees revoked to prison, the committee was told, 46% committed new crimes, 40% had both a new crime and technical violations, and 14% were technical violations only. All of those revoked for technicals, said Owens, had been through Intermediate Sanctions Facilities at least once and were chronically noncompliant.

Jerry Madden asked about a couple of discrete categories of offenders, questioning in particular whether parole eligible inmates who are eligible for deportation should be prioritized for release. He said there were hundreds of DWI offenders so situated who'd been denied parole. Madden also asked about a promising pilot program he'd authored (HB 3226) to let TDCJ pay for free-world housing for parolees if they're eligible for parole but have no place to go and the cost of paying their rent is less than the cost of incarcerating them in TDCJ. Jenkins said the program had maxxed out at just more than 300 parolees and currently was only being  done for 155, but that providers in all the major counties had agreed to participate.

Chairman McReynolds questioned Owens lightly about low medical parole rates, but you can tell they'll be revisiting the issue when the state begins to talk seriously about budget cuts. The Chairman said his committee had recently visited TDCJ's "cancer wards" and were told that 40% of TDCJ's $800 million healthcare budget was going to pay to care for frail, elderly inmates. That's $320 million to care for a small (but growing) fraction of TDCJ prisoners. As costs for elderly inmates increased, however, the parole board has become less willing to grant medical releases. From their annual report (pdf, p. 23), here are the total number of medical releases over the last several years:

2005: 174
2006: 161
2007: 101
2008: 103
2009: 59

McReynolds said he wanted to talk with Owens going forward into the session about how the Legislature could "help" the parole board increase approval rates for medical parole, saying that caring for frail elderly inmates is a "huge budget driver" for the agency. Owens said that Thomas Leeper - who is a former City Attorney from Huntsville and former Assistant City Attorney in Bryan - heads the three-member review panel in Huntsville that considers medical parole. She added that on July 7 she, Mr. Leeper and TDCJ's medical director will be meeting to discuss the subject. Leeper only joined the board last year, according to the parole board's annual report (pdf), so he can't be blamed for any failures to use medical parole in years past. Perhaps their meeting next week will spark a welcome change in the board's direction on medical parole.

I've been talking about policy changes that could allow the state to close several prisons next year to save money in the budget, but the parole board could accomplish the same task with just a minor uptick in parole rates for nonviolent and low-risk offenders.

UPDATE: Parole attorney Bill Habern emails to say that "In our office we still have clients who have been long approved for parole waiting 9 months and more to even get into sex offender treatment." Fair point: I think mostly the "treatment" discussion on Wednesday revolved around substance abuse.

Dropping the baton: Is recidivism the wrong metric for measuring reentry success?

At yesterday's House Corrections Committee hearing, Dee Wilson of TDCJ's new Reentry division likened the failures of the criminal justice system to a dropped baton in a 4x100 relay. Cops hand inmates off to jails who hand them off to probation or prison, she said (probation can also "hand them off" to prison), then prison hands them off either to parole or to society at large through direct discharge. At too many points in the process, she said, institutional players drop the baton, often because of a failure to share information, accurately assess inmates, and act on those assessments.

Half of the 72,000 people released from TDCJ each year are "flat discharges," said Wilson - people with whom the system loses contact entirely after their release. Ironically, flat discharges have slightly better recidivism results overall than people on parole, even though they're unsupervised and can't access services. That's in part because many are older inmates who served their full sentences are far less likely to recidivate (which is the case with older inmates generally). Drilling deeper into the data, though, one category of flat discharges has among the highest recidivism rates: State jail offenders, particularly those with mental health diagnoses.

Texas' 3-year recidivism rate, said Wilson, is 27.9%, compared to 44% in Florida and New York and 58% in California. However, Becky Ney, a consultant from the National Institute of Corrections, said she didn't know if Texas' lower recidivism rate is inherently good or bad, and I'd tend to agree it's an open question. All else being equal, it could mean Texas does a better job at rehabilitation. OTOH, it could also mean the state is sending people to prison who aren't really that big a threat and just aren't likely to return. (See past Grits discussion of Texas recidivism rates here and here.)

Jerry Madden at one point suggested that recidivism may be the wrong metric to watch, that there should be metrics documenting success instead of only failure. I agree. If Texas successfully reduces the number of low-risk offenders in prison, that may reduce crime overall but recidivism may increase for the more hardened inmates who remain. It'd be more probative to identify measurements of success to monitor - getting an ID, a home, a job - instead of focusing exclusively on recidivism.

The end of state jails?

Of several notable moments over the last day or so I want to share with readers from my trip to Houston, first on this list has to be Chairman Jim McReynolds of the Texas House Corrections Committee questioning whether the state jail system has "outlived" its usefullnes, and the surprisingly warm reception the notion received at the committee's hearing in Houston this morning.

McReynolds suggested state jails could be replaced with "intermediate sanctions facilities" (ISFs) like those created by the Lege in 2007 that included treatment and services aimed at reducing recidivism. After hearing testimony that state jail inmates (particularly those with mental health diagnoses) had among the highest recidivism rates of Texas prisoners, the chairman questioned continuing to "bifurcate" ISFs and state jails. A big problem: State jail time is served day for day so offenders - even those with mental illness or other reentry barriers - are not supervised and don't have access to services available to parolees.

Harris County District Attorney Pat Lykos readily (and surprisingly, to me) agreed, telling McReynolds that "state jails were ill-conceived from the very beginning." She said the committee revisiting the issue was a "ray of sunshine."

Relatedly, Judge Caprice Cosper of Harris County's Office of Criminal Justice Coordination told the committee substance abuse is the driving factor in jail crowding and court caseloads. Of 51,850 felony cases in Harris County in 2009, she said, 47% of those were state jail felonies. In 2000, she said, Harris County had around 5,900 "less than a gram" state jail felony drug cases. By 2008 that number rose to 11,700. That's far and away the most common felony offense in Harris County, she said; the second highest category of crime had 1,600 offenses that year.

Cosper said that while "incapacitation" was usually considered a primary purpose of incarceration, believing that is an effective approach for substance abuse is "naive." Substance abusers can do jail-time "standing on their heads," said the long-time Republican judge, but living clean in the free world is much harder for them.

The unanswered question, of course: If state jail felonies are eliminated, what happens to those offense levels? Possessing less than a gram of a controlled substance, for example, is a state jail felony: Would it become a 3rd degree felony or a Class A misdemeanor if the state jail system were abolished? Similar questions would remain for an array of other offenses. But it's a fascinating suggestion and I'll bet we haven't heard the last of it.

'Criminal Justice Policy: An Unlikely Bipartisan Consensus'

The title of this post is the headline to an article by former House Corrections Chairman Ray Allen featuring interviews with current Chair Jim McReynolds and immediate past Chair Jerry Madden.

Both McReynolds and Madden said it was too early to say if prison units might be closed, declaring they could not identify possible cuts without more information. Two key landmarks were identified on the horizon that will frame that debate: The LBB inmate population projections are due in June, and TDCJ submits its Legislative Appropriations Request in August.

In addition, McReynolds suggested the Legislature wastes money in the long haul by ignoring children of incarcerated parents:

Children whose mother is incarcerated face unbelievable hardships which put them at severe risk of future criminal behavior. Our policies ought to reflect our best efforts to positively change the lives of incarcerated women and those whose lives are so dependent upon them. To do less than our best means unnecessary fiscal costs down the road, and a terrible cost in human lives, both for future crime victims and the dependents of offenders.

The chairman also expressed concern about warehousing mentally ill youth for whom the Texas Youth Commission has exhausted its treatment options. Read the whole thing.