Humpty Dumpty, the Castle Doctrine, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Humpty Dumpty and the Castle Doctrine

The judge in former Dallas police officer Amber Guyger's murder trial for the shooting of Botham Jean gave the jury instructions on the Castle Doctrine defense, despite the fact that Guyger entered Jean's home and shot him, and wasn't defending her "castle." Her lawyers employed this argument as their primary defense (that it wasn't her home was a "mistake of fact," they said) so the judge had no choice but to address it, but Humpty Dumpty would be proud! The claim didn't help Guyger, however. She was convicted, anyway. UPDATE: Guyger was sentenced to ten years.

Death of trailblazing deputy raises difficult, familiar questions
The tragic shooting death of a Harris County Sheriff's deputy - a trail blazing figure who was the first Sikh to work in Harris County law enforcement - raises familiar questions with no satisfying answers. The alleged killer is a severely schizophrenic parolee who had gone off his meds and heard voices telling him to kill people. Is the criminal-justice system the best way to deal with people whose offenses are rooted in severe mental illness? How did this convicted felon and parolee get a firearm? He already was the subject of a warrant for violating his parole, should more resources be allocated to search for high-risk parole violators? His family had told officials he was dangerous and off his meds: Are there "red flag" laws that could have allowed them to act sooner? The circumstances surrounding this awful episode will provide fodder for these and many other debates in coming years. The public dialogue would have been easier, in a sense, if this had turned out to be a hate crime. The issues surrounding mental illness and the politics of gun proliferation are much more complex and difficult to deal with.

Private jail operator keeps screwing up
At the Liberty County Jail, which is operated by the Geo Group, "In the last 60 days, there have been two felony escapes, one of their correctional officers was arrested for stealing from inmates while on duty, and most recently, there are questions surrounding the death of a prisoner who hanged himself while in their custody. Apart from those instances, they have also flunked two jail inspections this year, one on April 22 and the second on June 28," the Houston Chronicle reported. Local officials are considering whether to terminate ties with the private prison contractor.

The economics of high probation fees
Check out a new article from our friend Todd Jermstad, probation director in Bell County, on the history and future of court-imposed fees at Texas probation departments. Especially interesting was his thesis that policymakers should take into account reduced means of Gen X and Millenial defendants, whose economic prospects remain less robust than earlier generations. Grits may delve more deeply into this soon, but for now, here's the link.

Bail litigation roundup
See a write-up from The Appeal of recent bail-litigation news, including from Houston and Galveston. See also related Grits coverage and our discussion of the topic in Just Liberty's most recent Reasonably Suspicious podcast.

Over friggin' pot?
In Hutto, a police officer responding to a call that someone was smoking marijuana beat up a man in his driveway and made false accusations in official documents to justify it. The victim had no marijuana in his possession, and bodycam video proved the cop was lying about the victim pushing the officer before he was attacked. The officer was fired, was indicted in May, and the victim has filed a civil rights suit, reported KXAN-TV.

Homelessness problems and solutions
In the wake of Austin's tendentious debate over homeless policy, I was interested to see this excellent New Republic article on "housing insecurity in the nation's richest cities." When, in the 1990s, my wife and I could rent a dilapidated three-bedroom house in East Austin for $190, homelessness wasn't such a big problem. Now that rents in my neighborhood for similar homes approach $3k per month, it's little wonder more people are on the streets. Meanwhile, Bloomberg News had an informative piece a couple of months back on how Finland all but eliminated people sleeping on the streets by investing in preventive strategies like rent subsidies.

How police misconduct gets covered up by plea bargaining
Here's an excellent analysis from Brooklyn public defender Scott Hechinger of how mandatory minimums and the threat of long sentences help cover up police misconduct that would otherwise come out in court. That's because "victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals." This is undeniably true. It's only in cases like the episode in Hutto, described above, where victims face no charges that officers can be held accountable through regular court processes.

Financial motive not only reason prosecutors oppose actual-innocence claims
The New York Times published a feature on falsely convicted people who've been exonerated by the evidence but cannot secure an "actual innocence" ruling because prosecutors fear the financial consequences of civil rights lawsuits against local jurisdictions. All of the examples are from other states, but Texas' situation casts additional light on this topic. I was policy director at the Innocence Project of Texas when the Legislature passed the best-in-the-nation compensation package for exonerees in 2009. We hoped to avoid this dynamic by having the state compensate innocent convicts instead of the locals. Indeed, the bill was sold as a form of "tort reform," eliminating local liability for what were seen as systemic flaws causing false convictions. But it turned out, the real, underlying complaints weren't financial. Many prosecutors and some judges on the Court of Criminal Appeals simply don't want to see falsely convicted people compensated, ever, and go to great lengths to oppose actual-innocence claims, despite the fact that locals weren't on the hook. So Grits is skeptical of the article's thesis that the motive behind opposing actual-innocence claims is financial. I think it's more pernicious than that.

Sheriffs and #cjreform
Our pal Jessica Pishko published a New York Times op ed on Sheriff's offices, declaring "The problem of sheriffs is particularly acute in the South and Southwest, where the office has more power and was historically used to prop up white supremacy." She calls for Sheriffs to undertake what amounts to a truth-and-reconciliation process for past wrongs. That sanguine suggestion to me seems unlikely. Texas alone has 254 counties, after all - a few might do that, under the right political circumstances, but most will not. And abolishing the office, as some have called for, doesn't change the fact that someone has to perform those functions. Grits has often thought that sheriffs' jail-management duties should be separated from their responsibilities to patrol unincorporated areas. These are distinct functions involving very different skill sets, and typically those elected to the office only have knowledge of one or the other. Whether Sheriffs should be an elected position is a question for another day.

Deep thinking on sex-offender policies
A recent NY Times piece examined emerging research on people who are sexually attracted to minors, finding that its roots are not genetic, but are "prenatal," and "can be traced to specific periods of development in the womb." And this Marshall Project story looks at evidence-based anti-recidivism programs aimed at people convicted of violent, sexual crimes once their sentence is complete. I found both articles to be thoughtful contributions to the discussion.

Most crime dropping nationally, but look at those rape numbers!
New Uniform Crime Report data is out, and most categories of crime have continued to fall, except rape, which has risen precipitously since 2014. See first-cut analyses from the Brennan Center and the Marshall Project. No one knows for sure what's behind the rise in rape numbers. The feds began using a more expansive definition of sexual assault in 2014, but the numbers increased even using the "legacy" definition. The question arises: Have there actually been more rapes committed over this period, or are we simply now getting a more complete picture of the scope of the problem in the wake of increased reporting thanks to the #MeToo movement? ¿Quien sabe? Regardless, the year-over-year decline in property crimes, murders, robberies, etc., is cause for celebration, while the sex-assault data should contribute to deeper conversations on the question.

Momentum for additional prison closures growing

At a Texas House Appropriations subcommittee meeting this week, legislators and staff openly discussed the possibility of additional prison closures in response to the budget crunch. Reported Mike Ward at the Houston Chronicle/Express-News:

State lawmakers may consider shuttering another prison and paroling some older, infirm inmates to nursing homes in a bid to shift more than $400 million in funding toward rising health care costs and much-needed repairs and upgrades to Texas’ aging corrections facilities. 

The state already is poised to spend more than $6.7 billion over the next two years for prisons and corrections programs. But with the legislature looking at the tightest state budget in years, lawmakers quietly are looking for ways to save $421 million in the Texas Department of Criminal Justice operations to cover surging costs associated with overseeing the state’s 147,000 convicts. 

Topping the list is $247 million to pay the costs of convicts’ health care during the next two years, including facilities, doctors, equipment and medicines.

Over and above last year's budget, TDCJ has asked for $55.6 million for facility repairs, reported Ward. Plus, "The department says it also needs another $19 million to upgrade its 40-year-old mainframe computer system, $15.4 million for 1,000 additional substance-abuse treatment beds, and $10 million for a video surveillance system in three maximum-security prisons."

One minor correction. Ward had written that, "Forty-six percent of the state’s convicts are over age 55, a group that accounts for 40 percent of expensive hospital visits, officials said." Whether officials said that or not, it is not correct. According to TDCJ's annual statistical report, as of Aug. 31, 2015, about 20.3 percent of TDCJ inmates were 50 years old or older. (See here, p. 17 of the pdf.) That's up more than 70 percent from 2005, when 11.9 percent of inmates were 50 or older. (See here, p. 17 of pdf.) But it's not 46 percent.

Senate Criminal Justice Committee Chairman John Whitmire suggested budgeting priorities on corrections which were music to this writer's ears: “We have thousands of empty beds at 109 state prisons. You shut some prisons, mothball some and consolidate the inmates. Then reinvest some of the money you save in treatment programs that save even more. The savings could be very significant.” Bingo! (Via Just Liberty, send a message to your elected officials supporting the treatment-not-incarceration agenda.)

That said, TDCJ chief Brian Collier wasn't offering the committee options that would maximize cost savings. For example, reported Ward, Collier said that "officials are considering whether to combine two side-by-side prison units in Colorado City, in West Texas, to save millions more." I agree with that closure - in fact, it'd make sense to close both of them. TDCJ struggles to find sufficient staff, among other problems. But in a tight budget year, I might not do them first.

Here's the rub: Savings from closing state facilities take time to materialize because it takes time to shutter the units, sell the property, etc.. Savings didn't really result from closing the Central Unit for a couple of years. By contrast, there are a bunch of private prison units with contracts up at the end of August. Ending those contracts would result in immediate savings with no wind down time. In a tight budget year, that's the quickest way to achieve maximum savings. There is sufficient capacity in the rest of the system to close a couple of those units.

Grits supports more prison closures whichever way they go. But my fear is that, if closures are approved on the basis of cost savings which don't fully materialize, closing more down the line may be harder. (And I believe Texas should close a bunch.) Targeting closures to maximize savings in the short term to me makes more sense. But regardless of which prisons Texas closes, we should close more, and the Legislature should start the process now.

Private prison seeks TX expansion despite lack of demand

Corrections Corporation of America, recently renamed CoreCivic, wants to take over the former Al Price juvie unit in Beaumont and convert it into a "secure" facility aimed at reducing reentry and lowering recidivism among drug-addicted adults. They envision a "behind the fence facility, where inmates would receive treatment for substance abuse addictions."

Of course, a cynic might note that there's no such new facility in TDCJ's budget request, which is focused more on where to make cuts mandated by legislative leadership. So the private prison company is banking on having enough political clout to inject the idea into the state legislative process, even though none of the state actors involved are asking for the unit.

Local officials in Beaumont are being sold a bill of goods and should invest no taxpayer funds in incentives to support the venture. In a budget-starved session like the one we're about to enter, believing the Lege will pony up for new a secure facility no one asked for amounts to buying a pig in a poke.

South Texas ISF closing

Mothballing of a small TDCJ facility in downtown Houston has begun, reported the Houston Business Journal. With a few small tweaks - most prominently reducing penalties for low-level drug possession from a felony to a Class A misdemeanor - Texas could free up enough space to close several additional units after the upcoming legislative session. Just closing this one, small unit will not be enough to meet the 4% budget reduction mandated for the agency earlier this year by legislative leadership.

Private prison stocks soar on election news

Private prison stocks soared upon news of Donald Trump's ascension to the presidency.

That makes sense. For starters, it's possible that Trump will reverse the DOJ's recent decision to phase out private prison contracts. And the election likely has eliminated the possibility of federal sentencing reform in the near future. Thinking more long-term, if Trump makes good on his campaign promises to implement mass deportation, private prison companies may look forward to enormous new contracts as the feds try to process 11 million people through a system designed to handle a fraction of that volume.

Who knows if that campaign promise was real; certainly it was unrealistic. But I can understand why investors would interpret the election as portending a reversal in fortune for private prison companies. They're probably right.

Police pension bailouts, dreaming of Oklahoma, and other nightmarish scenarios on Halloween

A few things, while I've got you:

Lab delays spur boost in Nueces Co. personal bond use
In Corpus Christi, prosecutors have enacted a standardized policy of offering personal bonds to defendants charged in synthetic marijuana cases, mainly because of crime lab delays. The most likely reason for the shift: "The time it takes to get test results on the substances has been longer than the maximum allowed sentences. Possessing synthetic marijuana is a class B misdemeanor punishable by up to six months in jail. Test results from the Department of Public Safety labs have been taking about nine months to a year to get back." They should keep close track of outcomes with these defendants, it will create a natural experiment to compare them with defendants convicted before they changed the policy.

With the chairmen of the House Criminal Jurisprudence and Calendars Committees both residing in Nueces, perhaps this news will place more pressure on the Lege to either adequately fund crime labs or adjust sentences to reduce pressure on them. Honestly, the whole crime lab system - at DPS and otherwise - is at the breaking point. Numerous disciplines have come under attack as fundamentally non-scientific, and even disciplines like toxicology with a more sound scientific basis are overwhelmed by volume and undercut by attempts to perform them on the cheap, as evidenced by the following item.

News flash: Bad field tests cause false drug convictions (and not just in Houston)
ProPublica has a great piece on the use of scientifically flawed "field tests" for drugs used in Las Vegas, NV, following up on important NY Times coverage earlier this year of the use of the same type of $2 tests in Houston. Both are must-read pieces of journalism for anyone interested in the topic. In Houston, this topic plays directly into debates in the DA's race over racial disparities in drug enforcement, as 59 percent of defendants falsely accused and convicted based on false positive from cheap field tests were black. They also pump up the state's "exoneration" numbers, ensuring that Texas will lead the nation in disproven false convictions for years to come just based on what's come out of Houston alone. The thing is, we know that EVERYONE who uses these field tests likely accuse innocent people, not just those in Houston or Vegas. These stories show us the tip of a much larger iceberg.

Requests for police pension bailouts pit cops vs. anti-tax conservatives
Increasingly it's clear that police pensions are a latent but fully primed flash point between anti-taxation Republicans in the Legislature, more liberal city councils, and local police unions. In Dallas, the pension us oversubscribed with too-generous benefits, has engaged in a series of flawed, risky real estate deals, and is losing money hand over fist. The fund in Houston isn't much better. In those and ten other Texas cities, local control of police and fire pensions has been wrested away by the Legislature and vested into independent bodies on which cities have a voice but unions (and the Lege) have ultimate control. Lately, the Laura and John Arnold Foundation's Josh McGee has been pounding away at the fundamental fiscal insolvency of these funds, mos recently in this excellent short report written with Paulina Diaz on the Dallas police and firefighters' pension. Their bottom line assessment of the crisis in Dallas: "The city’s public pension debt has doubled in less than two years due to inadequate funding, irresponsible benefit enhancements, and poor investment decisions. The total unfunded liability is now at least $4 billion—and the plans do not have enough money to pay for nearly half of the retirement benefits workers have already earned."

All these pension funds want bailouts either from local or state taxpayers, putting the police and firefighters unions directly in conflict with low-or-no-tax conservatives around the state, not just in the Tea Party wing of the GOP but also among establishment Chamber of Commerce types who abhor large tax hikes. Police and firefighters are among the last employees who receive defined benefit pensions instead of defined contributions (typically in 401ks) like most everybody else. They'll claim the sky will fall if that's changed, but the truth is, as the Arnold Foundation report ably demonstrates, the sky will fall if nothing changes. MORE: The Texas Public Policy Foundation is holding an event on public employee pensions in Austin next week.

Dreaming of Oklahoma, and other unlikely scenarios
Grits never thought the day would come when I could write this, but part of me is a little envious of Oklahoma, or I should say Oklahoma reformers. They've put drug sentencing reductions on the ballot and therefore can have a conversation about the idea's merits directly with the voters instead of filtering reform through the legislative process, with the resulting compromises, delays and special-interest interventions that inevitably entails. OTOH, Grits was doing this work in the '90s, so I can remember an era when I was quite grateful Texas didn't have initiative and referendum. The tough-on-crime crowd could and would have proposed, and voters would likely have passed, much worse stuff, even, than actually got through, except in a venue where opponents have had no way to oppose, modify, counter or coopt the details of the proposals.

So while the prospect of ballot initiatives is tempting - and while part of me wishes we could similarly test Texas voters' views on criminal justice reform more directly than just polling, which generally shows support for the main reforms presently on the table, but whose results haven't been tested by the gauntlet of special-interest attacks which face a ballot initiative of this sort - I'm still glad Texas doesn't have initiative and referendum and would oppose it here if it were seriously suggested. If I were in Oklahoma, though, right about now I'd be busting my hump to help Questions 780 and 781 pass. Good luck to them.

Piling on CCA CoreCivic
In response to federal prison contracts being rescinded and surprisingly successful divestment campaigns aimed at reducing their capital, Corrections Corporation of America, the private prison operator, has rebranded and renamed itself as CoreCivic. According to this source, "Last month, CCA fired 12 percent of its corporate workforce to deal with sharply dropping investment—largely thanks to growing pressure campaigns to divest from private prisons." Here's the company's press release. Not to pile on, but I should mention several of the private prison facilities Grits has argued should be prioritized for closure by the Texas Legislature in 2017 are CCA CoreCivic units.

Texas Lege should decarcerate, close prisons to cut TDCJ budget

The Texas Department of Criminal Justice released its legislative appropriations request last week, but declined to identify four percent of its budget to cut as demanded by legislative leadership, reported the Texas Tribune.

Instead, they suggested that, if pressed, they could cut $28 million from their $6.7 billion biennial budget by closing one small state jail in Houston. New executive director Brian Collier told the Houston Chronicle that cutting further would require "reductions in convict health care, meals, as well as prison and parole operations." The Chron helpfully broached the question of whether other units might make the closure list:

Agency spokesman Jason Clark said the state's prisons currently are operating about 2 percent below capacity, with another 2,500 beds mothballed because of a chronic shortage of guards.

Three years ago, the agency closed its first prison in more than a century - the Central Unit in Sugar Land - and since has closed two others.

Perhaps some of those facilities with mothballed beds should be shuttered altogether, if they can't be safely staffed and the beds are laying fallow, anyway.

Senate Criminal Justice Committee Chairman John Whitmire suggested several units in Fort Bend County might be prime targets for closure:

"Yes, there are discussions going on about closing more units. I've been in on them," he said Thursday. "The state has a number of old, inefficient and remote units that we should consider merging or closing to spend taxpayer dollars more efficiently."

On Whitmire's list: Relocate the faith-based transition program at the aged Vance Unit in Richmond to another unit and sell the valuable site for housing development that surrounds it. He also would like to see the state combine or close three Jester Unit prisons nearby and move those inmates to five other state prisons.

Whitmire said he plans to push for additional closures as an alternative to cutting guards and compromising health care, if the mandated 4-percent cut is not rescinded.

That's exactly the right path: In 2011, TDCJ suggested similar cuts to services, particularly to health care, which ultimately had to be rescinded. That episode should have demonstrated to legislators that, in order to make cuts in TDCJ's massive budget - which they boosted just two years ago by $458 million to cover current incarceration levels - they must reduce the number of inmates the agency incarcerates.

There's another batch of prisons Whitmire and Co. should consider for closure next year if closing those prisons in Fort Bend can't be quickly or easily accomplished: Four privately operated state jails have their contracts end in August 2017. Unlike state operated facilities, which take time to shutter and close, the state could rid itself of those expenses immediately upon the commencement of the new fiscal year in September 2018. News that the feds will stop using private prisons perhaps will inspire legislators and the agency to take a second look at this option. That's the quickest, easiest way to reduce capacity and spending.

Most importantly, to sustain and advance this prison-closure trend the Texas Lege must continue along the path to decarceration begun last session by increasing property theft thresholds, a move which has pushed down incarceration levels with no discernible harm to public safety. Reducing penalties for low-level drug possession and other offenses overcharged as felonies arguably is the next step down that path. And Grits would like to see renewed efforts to reduce technical revocations of probationers to prison, a trend which continues to drive high incarceration levels.

Do that and, by 2019, Texas could likely close not just the state jail in Houston and the four private units Grits identified, but also the facilities in Fort Bend mentioned by Sen. Whitmire. Closures primarily make sense coupled with amplified legislative efforts toward broader decarceration, or else they'll turn out to be a short-term fix.

See related Grits posts:

• TDCJ should suggest letting private prison contracts expire to save money
• TDCJ must reduce incarceration levels to cut a quarter-billion dollars
• Pondering potent prison cuts thanks to oil revenue decline
• Which prisons, state jails might Texas close next?
• Which prisons, state jails might Texas close next? Part II

TDCJ should suggest letting private prison contracts expire to save money

Grits and others have suggested that Texas could close more prison units to meet budget-cut goals set by the legislative leadership, and here's another datapoint supporting that suggestion from TDCJ's "high value data set" (xls), which Grits mentioned in a footnote yesterday.

According to that quarterly data source, there were 146,968 inmates locked up in TDCJ as of June, down 3,816 from the end of FY 13. That's plenty for TDCJ to shutter at least one or two units. And the easiest method would be to let a private-prison contract or two expire.

There are four state jails whose contracts expire Aug. 31, 2017 which conceivably could be targeted for closure if current incarceration levels continue to decline. All four are operated by Corrections Corporation of America:

• Bartlett State Jail (1,049 beds)
• Bradshaw State Jail (1,980 beds)
• Lindsey State Jail (1,031 beds)
• Willacy State Jail (1,069 beds)

Ending all of these contracts becomes an especially enticing option if the Lege were to ratchet down drug penalties a notch, making low-level drug possession (less than a gram, or ideally .02-4 grams*), a Class A misdemeanor and relieving thousands of drug-possession offenders from the yoke of state-jail imprisonment and long-term felony status. State Rep. Senfronia Thompson suggested that change in 2015, and the Legislative Budget Board estimated that, "In fiscal year 2014, 7,293 people [convicted of possession of less than a gram of a controlled substance] were admitted to state correctional facilities and 7,682 were placed on felony community supervision." 

That would be a big enough reduction to let all these contracts expire. LBB estimated such a change would save $105 million in the first two years and $314.4 million over five years. The Lege could share some of the savings to bolster local probation departments - who would henceforth be supervising both more probationers and  more needy ones - while still logging substantial near-term savings.

TDCJ has been asked to cut a quarter-billion dollars, so $105 million over two years is just 40% of that. It's significant, but not enough to cover the budget cutting goals laid out for the agency by the state leadership. It'd be a good faith start, though, and well worth the effort.

When Texas last faced a major budget crunch in 2011, TDCJ chickened out and pretended they could cut prisoner healthcare, food, and other core costs that really weren't viable solutions. Former executive director Brad Livingston didn't have the guts to tell the Lege, "the only way you can cut nine figures in our budget is to incarcerate fewer people." And so the politicians ended up cutting the wrong things. And they still imposed prison closures on the agency, only against its will instead of with its cooperation. (I seriously doubt the Central Unit would have been high on the agency's closure list, for a variety of historical and logistical reasons, for example. But TDCJ removed itself from that debate by refusing to contemplate prison closures, therefore its opinions were excluded from many of those conversations.)

This time, let's hope TDCJ brass tells the Legislature the hard truth: You can't reduce spending by those amounts without reducing incarceration. Then they should offer realistic suggestions that would do the trick. The union would support them. And there are several units the agency could close which have been nothing but headaches for TDCJ management (with the Connally unit perhaps topping the list).

In 2011, TDCJ's appropriations request adamantly refused to suggest viable solutions and thrust the problems back on legislators. This time, they should learn from their mistakes, cooperate with legislators and help them govern by giving them a realistic path to achieving sustainable cuts, not a guided tour through some Potemkin village that dissipates when supplemental-appropriations time comes around at the beginning of the next session.

* Making .02-4 grams a Class A misdemeanor, going a little further than Chairwoman Thompson, would be Grits' preference for changing the law in 2017. Current Texas law makes possession of less than a gram a state jail felony and 1-4 grams a third-degree felony. But up to four grams is still user-level possession and most people convicted in that range are addicts, not dealers. The amount of drugs possessed by a user when arrested isn't a reasonable way to distinguish punishment between those two cohorts of defendants. And going this route would save quite a bit more money, particularly in the out years. Meanwhile, when there's less than .02 grams of  evidence (trace cases), agencies should be forbidden from seeking charges because, after the state does its labwork, there's not enough left for the defense to re-test under Sixth Amendment "confrontation" requirements.

Private prisons tip of iceberg in profit-based corrections

While a great deal of attention is paid and criticism is devoted to private prisons, the truth about profit-based corrections remains more pernicious. As these infographics from In the Public Interest depict, private companies profit from almost every function of the American criminal justice system:

Broken immigration system, poor schools, incarceration of the elderly all bolster private-prison industry prospects, says executive

Anyone who claims private prison companies don't profit off misery must reconcile that belief with this comment:

“The reality is, we are a very affluent country, we have loose borders, and we have a bad education system,” said Shayn March, the vice president and treasurer of the Geo Group. “And all that adds up to a significant amount of correctional needs, which, thankfully, we’ve been able to help the country out with and states with by providing a lower cost solution.”

The previously unreported remarks were made during a presentation at the Barclays High Yield Bond & Syndicated Loan conference in June.

From the same source, we also get this interesting analysis of high US crime rates: "March argued that crime is inherent in America because of affluence. 'No one is committing a lot of crime in poor countries because, well, who are you going to steal from?' March continued," offering an especially sanguine view of the private prison industry's future prospects:

March told attendees that factoring in elderly care, immigrant detention, and expansion plans overseas, the company is sure to grow. “I think I started at GEO, our stock price … got down to $12.50. And if you factor in an apples-to-apples comparison to where we are today, our stock is well over $50 a share. So we have quadrupled our value in that six-year period.”

He added, “No, we’re not Google, but we’re still doing pretty good.”

The Great County Jail Privatization Bust

Regular readers won't be surprised at the Bloomberg headline, "How local governments got burned by private prison investments" (Oct. 1). But this graphic demonstrates in macro a story Grits has detailed at the micro-level around Texas.

The Bloomberg story details how "The IRS is going after counties that issued tax-free bonds to build jails used by federal agencies, which should have commissioners in several Texas counties shaking in their boots.

Texas jails have even more spare capacity than depicted in this chart, with 30 percent of beds empty as of Aug. 1, 2015.

Overbuilt Texas county jails turned private prison boom into bust

John MacCormack at the SA Express-News described in this morning's paper massive overbuilding at Texas county jails which has mostly gone unnoticed by the press and the public:

In June 1995, Texas jails had 64,000 beds, and were operating at 80 percent capacity, with 7,775 beds available. In June 2015, having added nearly 30,000 beds, they were operating at 70 percent capacity, and had 19,870 available beds.

The number of federal and contract prisoners in county jails has declined in recent years, due in part to changes in federal policy.

Where in 2000, the U.S. Border Patrol apprehended 1.67 million people, by 2014 the figure had dropped to fewer than 487,000, and has stayed low since. Detentions by Immigration and Customs Enforcement also recently have dipped after a longtime rise.

The story describes a phenomenon with which Grits readers should be familiar, in which private prison companies and local politicians carrying their water would argue that:

A detention facility built for federal inmates would create local jobs, a steady cash flow for the county and, once the bonds were paid off, a county-owned prison. And by using a public facilities corporation to borrow the money, taxpayers would be shielded if anything went wrong.

It was an easy money pitch often heard in rural Texas during an era that made the state the private prison capital of the country as companies built more than 50 facilities with as many as 60,000 beds.

Three decades later, the boom is over. And as the public sector's need for private prison beds has diminished, the tally of failing prisons in Texas is increasing, with some already vacant for years.

The bust is evident on a rural tour of the state, where more than a dozen once-profitable facilities have failed. At least seven of them, which together borrowed nearly $200 million, are in arrears on bond payments, figures from Municipal Market Analytics, a bond-research firm, show.

"Twenty years ago, everyone was bringing prisoners and everyone was making money. Then the state and federal governments figured out it cost too much to hold these guys, so they started looking at other means," Maverick County Sheriff Tom Schmerber said during a recent visit to the detention center there.

I must admit, it's particularly odd to see the story of the prison unit in Littlefield being considered a success story, though that's how it's being portrayed.

One of the few bright spots among the communities stuck with empty facilities is Littlefield, a city of 6,500 an hour northwest of Lubbock. There, a 300-bed, city-owned prison that has been vacant for more than five years is about to reopen.

"We have not been in arrears. We have made payments twice a year since it opened in 2000. With utilities and other costs, it's about $1 million a year, which is 13 percent of my budget," said City Manager Mike Arismendez, who announced his resignation last week.

Originally built for the Texas Youth Commission, the prison later held inmates from Idaho and Wyoming before closing.

Recently, Arismendez said, after years of futile searching, the city landed a new tenant, although it is not one that would be welcome everywhere. The Texas inmates will be violent sex offenders who require additional treatment before being released.

"The public seems to be very happy that we're going to reopen the facility and have jobs," he said. 

MORE: See AP's version of the story, the lede of which pithily declared, "More than a dozen once-profitable private prisons in Texas have failed, including one this month in South Texas, and records from a bond research firm examined by the San Antonio Express-News show at least seven are in arrears in payments on nearly $200 million in bonds."

Bar alleges DA misconduct in Willingham case, bad closed-records bill, auditing forfeitures, testing for steroids, diligent participation credits (federal and state) and other stories

Here are a few odds and ends that deserve readers' attention but didn't make it into individual posts during a busy week:

State bar accuses Willingham prosecutor of misconduct
Reported the Marshall Project, "the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters." The bar "accuses [former Navarro County DA John] Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana." From the bar complaint: "Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel. Specifically, [he] failed to make timely disclosure to the defense details of an agreement for favorable treatment for Webb, an inmate, in exchange for Webb's testimony at trial for the State."

SA4 case headed toward denouement
Again from the Marshall Project, a review of the San Antonio Four case and the difficulty of evaluating the veracity of child accusers who recant. Wrote Maurice Chammah, the SA4 cases "fall into an increasingly visible category of prisoners who have been freed due to evidence of a wrongful conviction but have not been formally declared 'innocent' by courts." This was also a case where Texas' new junk science writ came into play.

Making state employees DOB secret invites unchecked corruption
State Rep. Cindy Burkett has filed legislation to disallow people from accessing state employees birth dates under open records requests, the Dallas News reported, but this is a terrible idea that would dramatically reduce accountability in state government. As a practical matter, for an investigative reporter, a campaign opposition researcher, private investigators, citizen activists, or any independent fact finder investigating state government, date of birth is the main way one can viably distinguish individuals, especially if they have common names. (Is "Randy Jones" from the signature line of a state contract the same person as "Randall Jones" who seems to have received favorable terms on a land deal with the same company? You need a DOB to tell.) Remove that tool and much of the old-school paper trail work involving public information requests and courthouse records becomes nigh-on impossible. I understand the privacy-based impetus behind this bill, but it's profoundly misguided.

State auditor reviewing Dallas DA forfeiture expenditures
The State Auditor is investigating the asset forfeiture funds of former Dallas DA Craig Watkins following allegations that he improperly used the account to settle a civil suit over a car wreck he caused which included a gag order. The auditor's report is expected in May, reported the Dallas News.

Prison riot spurs busted contract
The feds are ending a contract with the South Texas prison where immigration detainees recently rioted, reported the Houston Chronicle. See more from Texas Prison Bidness.

State to stop steroid testing HS athletes, still no mandate to test cops
I've never understood why Texas chose to test high school athletes for steroids - despite little evidence there's a big problem with their use at that level - but never chose to test police officers, for whom there's ample evidence of significant steroid use. (To their credit, a few departments including Dallas and Arlington PD have begun testing on their own.) The state is finally going to ditch testing for high school athletes; I still think they'd expose a lot more problems by spending a fraction of that money testing police officers.

Cornyn backs aggressive sentence reductions for program participation, will Texas?
See an update on federal sentencing reforms being pushed by Texas Sen. John Cornyn. Under his bill, "Medium and low risk prisoners could earn a 25 percent sentence reduction or transfer to a halfway house or home confinement through completion of programs." That's slightly more generous, even, than the (up to) 20 percent sentence reduction which would be available to state jail felons for "diligent participation" in programming under SB 589 by Sen. Jose Rodriguez, which was heard on Wednesday in the Senate Criminal Justice Committee. Perhaps Sen. Cornyn endorsing an even more aggressive version of the same idea will help Mr. Rodriguez's cause.

Stingrays and non-disclosure agreements
The New York Times this week ran a feature on the worrisome requirement that local police departments which by "StingRays" and other surveillance devices from the Harris Corporation must file non-disclosure agreements which they claim trump open records laws or, in the case of Houston PD, even a duty to disclose to prosecutors how they use the devices. These issues will soon be prominently raised in Texas as Dwayne Bohac's HB 3165, which would require law enforcement to get a warrant to target an individual's phone using the device. His bill also trumps these sorts of NDAs, making information about Stingrays subject to the usual provisions of the Public Information Act.

How jailhouse snitch testimony can 'backfire,' even with corroboration
Vice.com has a thoughtful discussion of problems with overuse jailhouse informants, even in states like California which require corroboration of their testimony (a provision, writer Kevin Munger could have added, which Texas passed two years before the Golden State).

Willacy County facing economic devastation after riot at entrepreneurial private prison leaves unit 'uninhabitable'

Riots in Willacy County at a private prison housing federal immigration prisoners last week has been called "predictable" and has left the facility "uninhabitable." Texas Prison Bidness reminded us that "An ACLU report [last year] detailed squalid conditions, rampant abuse, and little to no medical care at the facility."

The detention center is run by the Management and Training Corporation, which operates ten other facilities around the state, employed 373 workers at the site, about half of whom live in the Raymondville and Willacy County areas while the rest live across the Rio Grande Valley." Those folks are now looking for work. According to the McAllen Monitor, "The prison pays [Willacy County] for every inmate it holds, pumping more than $2.7 million into county coffers last year." In addition, "In Raymondville, City Manager Eleazar Garcia said the prison’s closure could mean the loss of about $50,000 a month in water sales in the city whose annual budget projected about $3.6 million in water revenue." Observed the SA Express News:

The Willacy County economy is deeply dependent on the prison industry, floating tens of millions of dollars in bonds through a “Public Facilities Corp.” to build the Correctional Center. The county also has a 500-bed detention center operated by MTC under a U.S. Marshals contract, and a 1,000-bed state jail, operated by Corrections Corp. of America.

Each of the more than 2,800 prisoners in the Willacy correctional facility puts $2.50 per day in county coffers, adding up to about a quarter of its yearly budget of $8.1 million. It’s unclear who will be ultimately responsible for repairs to the building or how soon prisoners will return, if at all, leading some officials to worry the county could soon be faced with a budget shortfall.

Further, "The county owes about $63 million on the prison that opened in 2006," according to the county auditor, but the commissioners court claims "bond holders would assume any risk." That's a bit of fanciful thinking of which I'm sure the good folks in McLennan County could dissuade them, if anyone has ears to listen. Or, maybe they'll listen to S&P, which just downgraded the county's bond rating because of episode.

As an aside, there may be other jurisdictions salivating to house these prisoners and take advantage of MTC's woes, but be forewarned. The feds (ICE) have already begun assenting to bail in immigration cases for the first time in recent memory, perhaps in part in response to bed shortages in the system from the Willacy riot but more probably in reaction to a recent federal judge's ruling, still under review by the agency, ordering ICE to "stop denying bond to Central American families solely to deter more immigration." So the feds may yet figure out how how to absorb this group without doling out new contracts to other vendors.

I Can't Breathe, South Texas style, and other stories

Here's a browser clearing compendium of items  that merit Grits readers' attention even though I haven't had time to adumbrate them fully.

Wrong solution to culturally inept 'surge' participants
Is it true, as Valley legislators allege, that "Too many of the Department of Public Safety troopers assigned to the South Texas border region do not understand the local Hispanic culture and are unable to speak Spanish"? Perhaps. I'll even go with, "Probably." To me, though, the solution is to scale back the politicized, pointless, metric-free, "surge," not to build a damn training center down there to make it permanent! 

Lawsuit alleges sexual assault by employee of county jail contractor
A lawsuit by a former inmate alleges she was sexually assaulted by an employee of Community Education Centers, a private prison firm out of New Jersey that operates McLennan County's local jail, reported the Waco Tribune Herald. Jail privatization has already been a financial albatross for the county, but, if true, these allegations and the process of proving them in court might turn public opinion against the county's jail contracts more viscerally. 

I Can't Breathe, South Texas style
Eighteen students and staff members at a Raymondville ISD middle school were given medical treatment after they were exposed to tear gas during a training exercise at the neighboring Willacy County State Jail, reported KWTX TV.

New Tarrant DA will create Conviction Integrity Unit
The new Tarrant County DA Sharen Wilson will create a Conviction Integrity Unit. The fellow hired to run it, Larry Moore, said correctly that the lower number of exonerations in Tarrant may be because they “didn’t have the pattern of abuse you found in Dallas," as local officials have insisted. "But frankly, all the evidence was destroyed here, and Dallas kept it,” he added, which regular Grits readers know more accurately gets to the heart of the matter.

Priced to go
Outgoing Texas Court of Criminal Appeals Judge Tom Price spoke to the Austin Statesman's Chuck Lindell about his last-minute declaration that he opposes the death penalty after sending hundreds of men and women to death. (Price's views have migrated greatly from those of the judge who was warned by the State Commission on Judicial Conduct in 2001 for a campaign message touting that he had "no sympathy" for the criminal.) Regrettably, Lindell's conversation with the judge did not stray from Price's new-found death penalty views to plumb other topics like ideological splits on the court, relationships among judges following the Charles Dean Hood debacle, or his reasons for switching sides in Ex Parte Robbins I and II. I understand Texas Monthly will publish an interview with outgoing CCA Judge Cathy Cochran early next year, though don't expect her to break decorum and speak about the insider baseball stuff.

Reddy: Pretrial detention of low-risk offenders 'counterproductive for public safety'
Vikrant Reddy of the Texas Public Policy Foundation authored an editorial in the Houston Chronicle explaining how "pretrial incarceration of those who do not pose a high risk of committing a serious crime is counterproductive for public safety." He argues for "developing pretrial risk assessment instruments that can be used to make sound determinations about who needs to be in jail and who does not."

Read more here: http://www.star-telegram.com/opinion/opn-columns-blogs/bud-kennedy/article4119384.html#storylink=cpy

Mass imprisonment and public health
I'd missed a NY Times editorial from last month regarding harms to public health from mass incarceration. Here's a notable excerpt from its opening:

When public health authorities talk about an epidemic, they are referring to a disease that can spread rapidly throughout a population, like the flu or tuberculosis.

But researchers are increasingly finding the term useful in understanding another destructive, and distinctly American, phenomenon — mass incarceration. This four-decade binge poses one of the greatest public health challenges of modern times, concludes a new report released last week by the Vera Institute of Justice.

For many obvious reasons, people in prison are among the unhealthiest members of society. Most come from impoverished communities where chronic and infectious diseases, drug abuse and other physical and mental stressors are present at much higher rates than in the general population. Health care in those communities also tends to be poor or nonexistent.

The experience of being locked up — which often involves dangerous overcrowding and inconsistent or inadequate health care — exacerbates these problems, or creates new ones. Worse, the criminal justice system has to absorb more of the mentally ill and the addicted. The collapse of institutional psychiatric care and the surge of punitive drug laws have sent millions of people to prison, where they rarely if ever get the care they need. Severe mental illness is two to four times as common in prison as on the outside, while more than two-thirds of inmates have a substance abuse problem, compared with about 9 percent of the general public.

Common prison-management tactics can also turn even relatively healthy inmates against themselves. Studies have found that people held in solitary confinement are up to seven times more likely than other inmates to harm themselves or attempt suicide.

The report also highlights the “contagious” health effects of incarceration on the already unstable communities most of the 700,000 inmates released each year will return to. When swaths of young, mostly minority men are put behind bars, families are ripped apart, children grow up fatherless, and poverty and homelessness increase. Today 2.7 million children have a parent in prison, which increases their own risk of incarceration down the road.

If this epidemic is going to be stopped, the report finds, public health and criminal justice systems must communicate effectively with one another.

Why Houston won't get the private prison museum it deserves

Okay, they almost got me. I couldn't tell for sure just from reading it if this Free Press Houston story was satire. Editors confirmed that it is. Lucky I checked before writing something, a reliable reader sent it to Grits thinking it was legit.

The last few paragraphs seemed too out there to be true, but somehow the world seemed just possibly weird enough to contemplate the viability of the story of a plain speaking, fascist School-of-the-Americas reject deported from America's first private prison facility in Houston in the 1980s who becomes inspired by Corrections Corporation of America, launches a chain of private detention facilities serving death squads and torturers in El Salvador, then returns to America to buy the converted motel where he was earlier imprisoned and turn it into a private prison museum that lionizes T. Don Hutto.

What makes it fine satire is that it could be true: The world is just nuts enough to allow for it. Alas, not this time. Good stuff, though. Read it.

Exposing underbelly of privatized prison food

The Detroit Free Press has been publishing a terrific series of stories about Aramark, a private vendor of prison food and commissaries which has operated at several Texas jails. See:

• Four Aramark prison workers caught in sexual romp with inmates
• Aramark prison worker accused of smuggling in heroin, other drugs
• Aramark prison worker suspected in attempted hired hit
• Aramark contract at Oakland University hindered by prison infractions
• Michigan fines Aramark $200,000 more for poor prison food service
• Prisons director canceled $98,000 fine imposed on Aramark

See also related Grits coverage from last year: "Private food vendor allegedly skimped on portions, switched to substandard ingredients, billed for unserved food."

Judge: Texas open records law applies to private prisons

Travis County District Judge Gisela Triana last month ruled that the Texas Public Information Act applies to private prison records, reported the blog Texas Prison Bidness. The case arose out of a lawsuit filed by Prison Legal News. This is a big deal.

Crime lab misconduct, sex-offender residency, parole successses, and other stories

Hope you enjoyed a Happy Independence Day, Grits readers. Here are several items that didn't make it into independent posts last week but merit your attention:

Houston crime lab misconduct not caught by internal procedures
The Houston Chronicle reported (June 25) that Peter Lentz, the Houston crime lab tech accused of lying, improper procedure and tampering with an official record, was not identified by internal protocols but because, in February, he admitted the wrongdoing to two coworkers over drinks in a bar. MORE: From Paul Kennedy.

Texas civil commitment program melting down
The state's civil commitment program for sex offenders is imploding. The state plans to begin housing sex offenders in secure lockups because a halfway-house vendor is dropping its contract, citing public stigma and inadequate compensation. An attorney at the Harris County public defender told the Houston Chronicle that housing civil-commitment offenders in secure lockups is "clearly illegal." After all, they've already served their criminal sentences and are legally supposed to be undergoing outpatient treatment. Look for significant action on this topic next session, probably led by Sen. John Whitmire and Rep. Sylvester Turner.

'Getting Life': Michael Morton Memoir
Michael Morton has just published a memoir about his false conviction and imprisonment for the murder of his wife and the dramatic events surrounding his nationally publicized exoneration. See the Statesman's coverage.

Higher parole rate, fewer revocations account for leveling of Texas' prison pop
Insiders know that, despite the attention paid to Texas' 2007 probation reforms, the parole side has been the main reason Texas' prison population has leveled off and even modestly declined in recent years. Why? Via YourHouston News, Texas parole commissioner Lynn Ruzicka said new programming has facilitated higher parole rates for eligible inmates and lower revocation rates for parolees. For example, "Out of the inmates up for parole, 27-28 percent were released in 2001 while the current release rate hovers around 35 percent ... A 2 percent increase in approvals translates into approximately 1,500 additional parole releases per year and an annual savings of almost $26 million, a 2010 report by the Center for Effective Justice showed." Ruzicka specifically said, “The release rate is going up because of the programs we have.” Further, "parole revocation rates for parolees with active cases fell from 12.2 percent in 2001 to 8.2 percent in 2010, according to the Texas Department of Criminal Justice."

A lawyerly protest: Handing out cards
You don't see this every day:

More than a dozen of the city's best criminal defense lawyers converged Friday on the 11th floor of Houston's criminal courthouse to meet defendants and hand out bright yellow 3-by-5 cards explaining their constitutional rights.

It was part of a protest by the Harris County Criminal Lawyers Association against the way Michael Fields, a misdemeanor judge, handles initial appearances in his court.

"What he's doing is unethical, it's unconstitutional and it's illegal," HCCLA president Carmen Roe said after passing out several fliers. "When he starts trampling on the rights of defendants, that's when we get involved." ...

"We believe he's coercing defendants to either waive their right to a lawyer or enter a plea of guilty without their lawyer being present," said JoAnne Musick, a past president of HCCLA who was handing out fliers. "We've had complaints from people who asked for a lawyer and instead he handed them plea papers and had them enter a plea of guilty."

The judge, who denied any improprieties, said he changed his arraignment procedure earlier this year, a move that has generated the controversy. The Republican jurist has held the bench since being elected in 1998.

Paul Kennedy has called Judge Fields a "bully in a robe." Scott Greenfield provides more suitably outraged commentary.

Are compromised Van Zandt locks in other jails?
The Tyler Morning Telegraph posed the same question Grits asked in the wake of news about inmates compromising the locks at the Van Zandt County Jail: "Are the faulty locks in the Van Zandt County Jail in other jails?" For now, claims the paper, the surprising answer appears to be "no." "Executive Director of the Texas Commission on Jail Standards Brandon Wood said that as of now, the manufacturer does not seem to have that lock model in any other Texas jails, but they are still taking more time to confirm that, and see about locks in other states."

Wood said there are about three main manufacturers that make lock systems for jails in the state, but the company that made the flawed locks was not one of them.

“The type of lock that was installed, although it is comparable according to the manufacturers specifications to locks that are typically seen in Texas county jails, this was the first time we’d seen this manufacturer in the state,” Wood said.

Wood said even though the company was new, the locks it made met state standards.

For security reasons, Ray requested not to reveal the lock manufacturer’s name. Keeping that information away from inmates could stop them from trying to manipulate similar locks.

However, the locks with the faulty pieces seem to only be in one batch of one specific model. It doesn’t look like the manufacturer has locks from that bad batch anywhere else.

“We do not believe that any of those locks are in any other county jails, however we have issued a technical assistance memorandum and notification to the sheriffs to conduct a walkthrough of their own facilities and determine if they have any of those locks,” Wood said.

As every jail in Texas investigates its own locking system, the manufacturer in question is looking into any locks it has installed in other states.

They ought to publish the manufacturer's name. It's going to eventually come out, anyway.

Alleged civil service cheats indicted in Cameron County
Reported AP, "Eleven former and potential South Texas sheriff's deputies have been indicted in a civil service exam cheating scandal involving a cellphone image of the test."

Private prison focus: Immigration
The blog Texas Prison Bidness highlights documented troubles at five "criminal alien requirement" prisons in Texas covered in an ACLU report released earlier this month:

• Reeves County Detention Center
• Eden Detention Center
• Willacy County Correctional Center
• Big Spring Correctional Center
• Giles W. Dalby Correctional Facility

Forensics a 'decades-long experiment' sans scientific method
At Slate, Mark Joseph Stern picks up the meme that much forensic science isn't actually science, an uncomfortable fact made irrefutable by the 2009 National Academy of Sciences report calling for the application of the scientific method in forensic fields. He argues that, "Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches."

Judge: Private prisons subject to open records laws

A Travis County judge has ruled that private prison firms are subject to the Texas Public Information Act. See Techdirt and the Courthouse News Service for more details. Congrats to Prison Legal News and the Texas Civil Rights Project on an important legal victory. See a related press release and the motion for summary judgment. UPDATE: Here's the judge's one-page ruling in the case. Thanks to a commenter for sending it along.