'The Myth of the Progressive Prosecutor'

Josie Duffy Rice has a solid piece in the NY Times on "the myth of the progressive prosecutor." Grits agrees with much of what she says, with one caveat: To me, the problem isn't the hypocrisy of a Cyrus Vance or a Kim Ogg but that the fundamental job of the prosecutor is based on regressive values, attitudes and approaches.

The day-to-day tasks of the prosecutor's job contribute to a myopic worldview that is emotionally victim-centric and economically regressive, regardless of the ideology-upon-entry of this or that District Attorney at the top of a local system. A victim-centric worldview isn't inherently bad, but the prosecutor's version too often fails to recognize that victims and criminals frequently turn out to be the same people, with the differences in characterization mostly temporal and situational. That's why, for example, defense attorneys present mitigation evidence to juries at capital murder trials that more often than not these days dissuade them from a death sentence: Human beings ultimately are defined by the totality of their experiences, not their single worst bad act. But in the prosecutor's world, that one bad act is everything - if they can make the case that the defendant's behavior fits the details from the statute describing a crime, their job is done.

That's the reason that, at DA offices, management changes, but the day-to-day operations remain much the same as they functioned when our grandparents ran much-smaller versions several decades ago. Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it.

That's not to say it wouldn't be possible for a DA to fundamentally redefine the job. They have enough discretion to where all sorts of interesting possibilities might present themselves if smart people put their minds to it - IMO, restorative justice approaches likely offer the best opportunity to re-imagine the position in a way that lets them retain their victim-centric approach.

But Josie's right that that's not the mentality of the so-called progressive prosecutors being elected so far. Instead, they have mostly stuck to rolling back the most over-the-top tuff-on-crime policies but haven't really challenged the assumptions underlying the day-to-day activities their employees perform at their jobs. The reason, though, IMO, is not a lack of nerve nor moral fortitude, but more fundamentally a failure of imagination.

RELATED: Here's a good, recent analysis out of Stanford on "The Problems with Prosecutors." SEE ALSO: Why are prosecutors putting innocent witnesses in jail?

John Wiley Price discovery measured in terabytes, and other stories

Here are a few items which failed to make it into independent posts over the holiday but deserve Grits readers' attention:

Violence, not jobs, driving current immigration trends
Traditionally undocumented immigrants entering Texas came because of jobs. Increasingly they're people fleeing violence, death and chaos. El Paso has witnessed an influx of refugees from the states of Michoacán and Guerrero because of extreme drug violence there, mirroring the causes of a mass influx of children from Central America earlier in the year. 

Abbott may back bills to help ex-felons get jobs
Apparently incoming Gov. Greg Abbott supports scaling back occupational licensing restrictions to help more ex-felons get jobs, a measure backed by the Texas Public Policy Foundation and championed in the linked story by state Sen. John Whitmire. Given that, expect some movement on this in the coming session, though to what extent remains to be seen. "In Texas, where about a third of the jobs are licensed, that means fewer opportunities for those with a criminal past. Advocates of modifying the current licensing laws say the change could get thousands more Texans working and paying taxes and get many off welfare-assistance programs."

When the prosecutors' open file has 150 million pages
Though the figure seems unbelievable, in the John Wiley Price federal corruption case, according to the Dallas News, “Prosecutors reportedly have about 6.5 terabytes of digital information to turn over to the defense. That does not include audios, videos, photographs, tax documents or 'materials too bulky to scan,' a defense motion has said. The government has estimated that 2.5 terabytes of data will remain after 'processing and culling.'” According to the News, "That is roughly the equivalent of 150 million pages of material."

Turn out the lights: SAPD chief to leave, work for electric utility
San Antonio police chief William McManus is leaving after nearly nine years on the job to head security at the city's electric utility, reported the SA Express-News in an outgoing profile.

Novelty act?
Is the new client choice model of selecting indigent counsel in Comal County a bold new strategy or a novelty that distracts from larger issues of insufficient resources?

How to judge homicide clearance rates?
With a 65 percent clearance rate at Houston PD, "A [Houston] Chronicle review of homicide cases in Houston from 2009 through the first half of 2014 found at least 353 investigations that remain open. Stepping back through the years, the number soon tops 1,000." Parents of victims in unsolved cases insist more should be done; detectives insist when they've exhausted all leads, that's what there is to do. Broken out by race, clearance rates are highest for whites, lowest for Hispanics. The department got into trouble this year when it was revealed a detective wasn't investigating some cases assigned to him at all, so it's understandable the homicide clearance rate is a sensitive subject. In a city the size of Houston, it's unrealistic to expect 100 percent of murders to be solved.  But lamentably, any outcome short of perfection will leave the department with some very emotional and unhappy detractors among families of victims in unsolved killings. Oddly, homicide rates have fallen nationally in recent years during a period in which murder rates have also radically declined. So, surprisingly, the data show little if any correlation between solving murders and reducing their number, to the extent that's any consolation.

Restorative justice in schools
School districts across the state, including several in Bexar County, are experimenting with restorative justice models for student discipline.

Perry pardon grinch at final Christmas as governor
Humbug! No Christmastime clemency from Rick Perry on his way out the door, so apparently these four piddling pardons from October will be his last as governor. Here's hoping Greg Abbott's team will make a New Year's resolution to embrace clemency with more vigor over the next four years rather than treating it as a symbolic Christmas ritual with little real practical effect.

Three stories from the darker side of Texas history
On my personal blog, recently I wrote about three murderous Texas land grabs - targeting Mexicans, Native Americans, and black folks - about which Grits was never taught in school. Were you? As fat as that 7th grade Texas history book was, you'd think they could have fit these stories in.

TPPF: 'Texas should lead on restorative justice'

Derek Cohen of the Texas Public Policy Foundation has an interesting essay in the SA Express-News titled, "Texas should lead on restorative justice." The article opens:

As children, we learn two wrongs don't make a right. However, a wrong can often be made right. To accomplish this in the criminal justice system, we must prioritize the role of wronged individuals, rather than viewing the government as the victim.

Our legal tradition marginalizes the victim from the process. The government also has primary claim to all payments received from the offender, often put toward satisfying court fees and criminal fines before they are passed on to the victim. If the offender is incarcerated, a victim is likely to see little to no restitution. While incarceration may be necessary to incapacitate violent offenders and career property offenders, Texas puts many offenders in jail for offenses such as shoplifting and hot checks, where a restorative justice approach that emphasizes restitution could achieve better results for victims, taxpayers and offenders.

Restorative justice programs place the focus on the victim. The victim, in mediation with the offender, establishes an agreement involving an apology, restitution, and, in many cases, community service. These programs can begin before or after the trial phase, all with the consent of the victim. The mediation begins with the victim or a proxy acknowledging to the offender the harm caused. The offender accepts responsibility and begins working toward repayment.

Ideally, restorative justice programs are entered into as diversions, not as a formal sanction. This ensures “good faith” by the offender, as opposed to a ploy to avoid punishment.

Globally, victim-offender mediation programs have shown promise, particularly for nonviolent and first-time offenders. They decrease repeat offenses and increase the percentage of victims who receive restitution. These programs also cut costs over traditional forms of sentencing.

See also Cohen's recent report, "Reviving Restorative Justice: A Blueprint for Texas" (pdf). Go here for more background on restorative justice.

Roundup: Criminal justice bills to watch

Let's highlight several pieces of Texas legislation filed recently that piqued Grits' interest.

There's HOPE for probation reform
HB 1242 (Geren/Carter): This is permissive legislation modeled on Hawaii's award-winning HOPE Court that would allow judges to utilize short jail stints instead of revocation for technical violations. Really good bill. And with House Criminal Jurisprudence Vice Chair Stefani Carter as a joint author it has a decent chance of moving this session. For more background on the HOPE program see this, this, this, this, this, this, and this.

Sentencing Commission proposed
Rep. Senfronia Thompson has filed  HB 990 to create a sentencing commission, which was a Legislative Budget Board recommendation. The commission would analyze sentences and recommend ways to reduce disparities among jurisdictions, compare Texas practices to other states, and "devise an approach that would allow the state to balance sentencing policies with correctional resources." Grits thinks this is a fine idea as a one-time re-evaluation of state sentencing policies, but would not want to see it become a standing entity.

Reducing barriers to ex-offender employment
HB 1188 is a good piece of bipartisan legislation by Reps Senfronia Thompson and Charles Perry that would limit the liability of businesses who employ people with criminal convictions. It would still allow suits for harms caused by negligent hiring, inadequate supervision, misuse of funds or property or other traditional torts. But under the bill, "A cause of action may not be brought against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense."

Punishing prosecutors for witness tampering
HB 1163 by Moody would alter witness tampering statutes to include soliciting false testimony and encouraging witnesses to withhold information or elude appearing before the court. Punishments under the bill could be pretty harsh: "a felony of the second degree if the actor is a public servant acting or purporting to act in an official capacity or an attorney representing a party to the official proceeding, except that the offense is a felony of the first degree if the official proceeding is part of the prosecution of a criminal case in which the most serious offense charged is punishable as a felony of the first degree or a capital felony." There are exceptions for defense attorneys advising clients to exercise 5th Amendment and other legal rights. The problem is, who would prosecute cases against the prosecutors? Are DA's going to indict their own employees? Somehow I doubt it.

Studying Solitary
HB 1266 by Guillen would create an "Adult and Juvenile Administrative Segregation Task Force," made up of agency folks and various community stakeholders. It would review policies, make recommendations on ways to reduce the number of people in solitary confinement, improve programming and mental health services in ad seg. I actually think there are things they could do now that wouldn't require more study: E.g., requiring ad seg prisoners to be paroled one year before their full sentence is complete so they'll be under supervision during the reentry period. (If they complete their full sentence while in ad seg, they're dumped straight from solitary confinement back onto the streets - something that happened with 1,445 inmates last year.) Still, a task force study could raise the issue's profile and set the stage for changes down the line. Better than a sharp stick in the eye.

Don't lessen medical examiner qualifications
HB 1192 by Moody would lessen qualifications for Texas medical examiners, allowing any physician certified by the Texas Medical Board (or doctors licensed in other states) to do the job instead of requiring licensure through the Board of Medical Examiners. Seems like a bad idea to me. Perhaps I'm missing something, but surely we've had enough trouble with shoddy medical examiners in Texas that it seems foolhardy to reduce their specialty qualifications.

Limiting local limits on weapons
If HB 1299 by Stickland were to pass, "a municipality may not adopt or enforce an ordinance or other regulation relating to the private ownership, keeping, carrying, transportation, licensing, or registration of an electric stun gun, a knife, or a personal defense spray." Under the bill, they could still prevent folks from carrying those items past entrances to government buildings with metal detectors installed.

'Zero tolerance' for retaliation vs. inmate grievances
HB 968 by Sylvester Turner would require the Texas Department of Criminal Justice to "implement and enforce a zero-tolerance policy for failure to protect inmates from retaliation for filing a grievance" and begin annual reporting of grievance data, charging the agency with "identifying patterns of commonly recurring problems and making recommendations in regard to addressing those recurring problems."

Restorative justice pilot
HB 937 by Farias would establish a restorative justice pilot for juvenile offenders in San Antonio.

Innocence bills, redux
Finally, a pair of innocence-related bills that were filed in the Senate have also been filed in the House: Rep. Terry Canales has filed HB 1096 requiring police to record custoidial interrogations related to certain serious offenses. Sen. Rodney Ellis is carrying the bill in the upper chamber. And Rep. Sylvester Turner has filed the habeas corpus reform bill that Criminal Justice Committee Chairman John Whtimire filed in the Senate. The bill number is HB 967. (See Texas Tribune coverage of the recording interrogations and habeas reform bills.)

Austin film event: Meeting the Murderer

I received email notice of an upcoming Austin event featuring a film and discussion of restorative justice and in particular the sort of victim-offender dialogue described in this recent Grits post. Here are the details:

The Texas Coalition to Abolish the Death Penalty and Trinity United Methodist Church present

From Violence to Restorative Justice
A Screening of the documentary “Meeting with a Killer: One Family’s Journey”

Tuesday, May 8, 2012, 7:00 p.m. - 8:30 p.m.

Trinity United Methodist Church
4001 Speedway
(northeast corner of 40th and Speedway)

Join us as we watch one family’s journey to forgiveness and reconciliation following the murder of their loved one. After the screening, a discussion will be led by Ellen Halbert, the professional mediator who helped make this real-life mediation possible.

Ellen Halbert has been involved in the criminal justice system for over 25 years. In 1991, she was appointed to a six-year term on the Texas Board of Criminal Justice. She was the first victim of crime - and first female - to serve on the nine-member Board that oversees the massive criminal justice system in Texas. Ms. Halbert is presently the Director of the Victim Witness Division at the District Attorney's Office in Travis County, Texas.

Refreshments will be served.
This event is free and open to the public.
Free parking is available in the lot across the street from the church.

Meeting the murderer: Profile of victim-offender dialogue facilitator

See an interesting article from the Christian Science Monitor about a boat builder from Maine who runs a non-profit facilitating victim-offender dialogue (VOD) between violent criminals and their victims or their families, which is an idea derived from "restorative justice" models. It describes how Texas' program launched his interest:

Wilson first grew intrigued with VOD when he was researching an article for Hope, a human interest magazine he published until 2003. In 2000, he attended training led by a pastor named David Doerfler, then with the Texas Department of Criminal Justice Victim Services Division. From the first day he was hooked.

He began working cases in Texas, which operates one of the oldest and largest VOD programs in the country. (At the time, six states offered VOD programs, Wilson says: Today, just over half the state corrections departments in the country support VOD programs.)

The programs are a delicate subject with state correctional officials. Some report widespread satisfaction among participants, but others refuse to discuss VOD at all.

As the mother of a victim, [Janet] Connors welcomed a chance to take part in VOD. "Don't take my choice away," she says. "We [victims] are used to getting upset – our whole lives have been upset. But don't take away my choice to meet with the person who caused me harm."

Wilson spends months meeting with victims and helping them prepare before engaging in dialogue. He also meets ahead of time with offenders, through which he discovered a pivotal irony of our modern penal system: The disassociation of punishment from the events that cause it and the consequent emotional detachment of prisoners.

The jailed offenders receive no shortened sentences or any kind of credit for their involvement. No dialogue occurs if an offender doesn't fully accept responsibility for the crime. What they do get is an opportunity to think more deeply about what they've done.

Wilson also meets ahead of time with offenders. "When I start out [with an offender], many of them will say, 'I don't even know if I have feelings,' " Wilson says. "Of course they have feelings, but that's how far removed they are from them. Describing their feelings is new to them.

"This is the problem with our system: These guys can do their whole sentence without ever having to think or talk about their crime. We do not insist [that] that person think about what they have done."

That last bit is an important observation. Under a restorative justice model, offenders are encouraged to take responsibility for their actions in more meaningful ways. Under the traditional system, the closest anyone comes to taking responsibility comes during the brief moments of a plea bargain before a judge, after which a prisoner may spend decades locked up without being reminded of their offense.

Meanwhile, the VOD program helpfully gives victims an opportunity to confront those who've harmed them and get answers to the many questions that swirl around the aftermath of tragedy. The story reminds me of Howard Zehr's comment that the current criminal justice system denies victims almost everything they need. At a 2007 conference, he argued that if one set out to design a system to create post traumatic stress for a victim, they couldn't do better than a court of law. VOD and other restorative justice approaches aim to  promote a more victim-centered space where their needs can be met, to the extent possible, beyond mere punishment of the perpetrator.

See the website for Wilson's group, Just Alternatives, for more on the subject.

Victim rights, restorative justice and the death penalty

Jeff Gamso tells the story of a hate-crime victim who was shot in the face - the lone survivor from three shootings by the same white supremacist nutjob who was shooting middle easterners in retaliation for 9/11 - who is now seeking to engage in victim-offender mediation with the man who shot him. The hitch: He's scheduled to be executed next week, one of eight men scheduled to be killed by the state in the next couple of months.. So the victim, Rais Bhuiyan, has launched a campaign to have Mark Stroman's sentence commuted to life without parole. (See his website, including a petition to the Board of Pardons and Paroles.)

Texas created its victim-offender mediation program as an homage to restorative justice principles, but normally - because usually the victim is dead - death-row offenders don't participate in the program. That said, the mediation was created for the benefit of the victim, not the offender. It's supposed to provide closure, information, and an opportunity for forgiveness and healing. Should the victim of a terrible hate crime be denied that opportunity? On what grounds?

Writes Gamso: "Texas, of course, ... is deeply committed to ensuring the rights of crime victims. Their voices will be heard. Their needs will be met.  They will be offered support and comfort and help. As long as they seek vengeance. The rights of victims don't extend to seeking mercy." Ain't that the truth!

MORE: The Texas Tribune has a story on a lawsuit filed by Bhuiyan seeking to stop the execution. AND MORE: From Patti Hart at the Houston Chronicle.

UK urged to embrace restorative justice for juvie corrections

An important new report out of the U.K. could signal the start of a widespread shift toward use of "restorative justice" techniques in juvenile law, modeled on a program in Northern Ireland. According to this source:

A landmark report has called for the introduction of restorative justice across England and Wales to halve the current number of juveniles in custody.

The Independent Commission on Youth Crime and Antisocial Behaviour reports that restorative justice in Northern Ireland should provide the model for major changes to the youth justice system.

The commission, which carried out an 18-month study into alternative responses to youth crime, concludes that restorative meetings known as "youth conferencing" are the way to deliver better justice for the victims of crime, while cutting re-offending rates and custody numbers.

Its report, Time for a Fresh Start, estimates the cost of dealing with youth crime and anti-social behaviour as being more than £4bn each year.

It also argues that many millions of pounds are being wasted each year on custody for under-18s with each place costing taxpayers between £69,000 and £193,000 a year, but as many as three out of four young offenders are being re-convicted within a year of completing their sentence.

The commission sets a target for the current use of custody to be halved to fewer than 1,000 young offenders at any one time without adding to crime rates or compromising public safety.

And it urges a significant reinvestment of resources in early intervention to tackle serious anti-social behaviour among children, prevent later offending and save more money for the taxpayer.

In the introduction to the document, authors said:

We have been impressed by the restorative Youth Conferencing Service introduced in Northern Ireland five years ago and believe that its professionally co-ordinated approach provides a suitable model for England and Wales. Reconviction rates among young offenders involved in restorative justice processes are relatively low and youth conferencing in Northern Ireland has been accompanied by lower use of custody. Approval ratings among victims and all those involved are high. No one there suggests it is in any sense a ‘soft’ or easy option. Young offenders themselves acknowledge just how tough it has been to have to face up to the harm and misery they have caused their victims, their families and the community. Restorative justice is an approach whose time has come, and the results, when professionally managed, speak for themselves.

Texas just cut our own juvenile prison population in half, but instead of restorative justice the Lege invested in evidence-based probation programming to supervise those youth in the community. I find it interesting that Britain wants to achieve the same goal using a completely different model. Also notable, with more than double Texas' population, England and Wales incarcerate slightly fewer youth now than Texas does AFTER slashing our own youth prison population in half! But the Independent Commission says their juvie incarceration rate is too high. What do you suppose they'd think about our system?

There has been a great deal of talk about restorative justice in Texas, and a few small programs here and there have been based on the concept. (At TDCJ, for certain offenses victims can choose to engage in mediated discussions with offenders in a restorative-justice inspired program. And when Ronnie Earle was Travis County DA he experimented with restorative justice ideas in juvenile court.) But Texas officials have never come close to embracing the notion on the scale suggested here, as the foundational basis for the entire juvie justice system. This a lengthy report and there's a big stack on my to-read list ahead of it, but the topics coincide with many frequently discussed on this blog and may well interest readers in the juvie arena.

The contract: A reasonable alternative to adjudicating low-level offenses?

Before I leave the subject of Wednesday's House Corrections Committee meeting, one more idea from Harris County DA Pat Lykos that might be more widely applicable. She said her office has instituted community supervision by "contract" with some 2,200 juveniles in lieu of formal adjudication, saying it's not really true that juvenile records are closed. When the contract expires, there is no formal criminal record.

The catch: In some cases prosecutors have been forced to file charges in order to access services for youth, said the DA. That's pretty pathetic, when you think about it. Basically, kids can only get help when they screw up.

The "contract" idea reminds me of a program described on Grits a few years back "In South Australia [where] many low-level juvie cases are handled not through the courts but through agreements extracted through a police officer with youth and their parents that keeps them out of the system entirely."

I mentioned earlier the suggestion that drunks and druggies might be taken to "detox centers" instead of jails to sober up without going through formal adjudication, and it's possible this "contract" model might be a good mechanism to enforce limited supervision terms on such offenders. So tell me, gentle readers, what potential benefits and drawbacks of the idea come to mind?

UPDATE: A commenter points to a program along these lines in the UK called "Acceptable Behavior Contracts," see this description, which is used there for both juveniles and adults.

Bilking Crimestoppers, the Invisible Informant, Constables Gone Wild, and Book 'em Horns

A few disparate items that deserve Grits readers attention:

'Forgiving My Daughter's Killer'
From the Washington Post, see "Forgiving My Daughter's Killer," which offers praise for a victim-offender mediation program at TDCJ based on restorative justice principles.

Dallas: Budget shortfall = Fewer cops
Dallas PD may shrink its police force through attrition to avoid cutting officer pay during a time of budget crisis. I still believe smarter policies can increase police coverage without adding more officers to the force, but it would require more political courage than Dallas city leaders have demonstrated in the past.

Bilking Crimestoppers
In Dallas, the head of the CrimeStoppers program was allegedly engaged in an elaborate fraud scheme in which she would feed an accomplice information allowing them to collect (and presumably split) reward money to which they weren't entitled. I wonder how often (and how well) these funds are audited? It seems like, with payouts going to anonymous tipsters, there is an inherent risk of fraud from several potential angles.

The Invisible Informant
Following his high-profile extradition, Osiel Cardenas has gone from Gulf Cartel drug kingpin to the Invisible Man, and there are no records in the courts or the federal prison system saying where he is or what happened to him. Said one observer, "He has clearly become a useful informant and is being treated as such." Meanwhile, 2,200 people were recently arrested, including more than 400 last week, in a crackdown on cartel distribution networks. I wonder a) if the two stories are connected and b) whether even 2,200 arrests will make a dent in US drug distribution? UPDATE: A small-town South Texas police chief was among those arrested in the sweep.

Constables Gone Wild
A constable in San Angelo was indicted for writing a traffic ticket under false pretenses. In Dallas, a deputy constable accused of sexual assault is out on bond. A constable in Midland is under fire because two deputy constables weren't licensed earlier this year and all the cases they'd worked on (mostly traffic tickets) had to be dismissed.

Minor drug cases don't trigger deportation
The US Supreme Court ruled in a Texas case that minor drug violations don't automatically trigger deportation for immigrants.

Book 'Em Horns
UT football legend and Tennessee Titans quarterback Vince Young was charged with a Class C misdemeanor assault for an altercation at a Dallas strip club with a man who taunted him with an upside-down Hook 'em Horns sign. I suggest Young offer the same defense as the great Billy Joe Shaver when he was put on trial earlier this year for shooting a man in the face during a fight outside a bar. Asked by the prosecuting attorney why he didn't leave upon realizing the argument was escalating, Shaver replied, "Ma'am, I'm from Texas. If I were chickenshit, I would have left, but I'm not." The jury acquitted .

Restorative Justice in Schools

Via The Crime Report:

A new publication by the Illinois Criminal Justice Information Authority provides suggestions for how schools can address behavioral issues and rule-breaking from a restorative, rather than punitive, standpoint. “Implementing Restorative Justice: A Guide for Schools,” finds that “there is no evidence that zero tolerance policies improve student behavior, the school climate or overall school safety,” and encourages school officials to counter the trend of criminalizing school misconduct with such techniques as separating the deed from the doer and using misbehavior as an opportunity for learning.

Click here to read the full report.

National restorative justice conference coming to San Antone

From the Dallas News Crime Blog:

Those looking for an alternative to the 'lock 'em up and throw away the key' approach to criminal justice, might want to attend the second national conference on restorative justice. The University of Texas at San Antonio is hosting the conference May 13-15 and officials are expecting attendees from 10 different countries. Co-sponsors of the conference are an eclectic bunch, including everyone from School of Social Work at the University of Texas at Austin and St. Mary's University School of Law to the Baptist General Convention of Texas and the United Methodist Church. Here's the link to more information.

Go here for links to Grits coverage of the 2007 national restorative justice conference.

Might restorative justice principles improve drug courts?

I'm a supporter of drug court programs, but I also believe they shouldn't be immune from criticism and all such diversion programs should be constantly, rigorously tested for effectiveness. So I was interested to see a couple of recent items on the topic that collectively describe the pros and cons of this increasingly popular (even faddish) approach to adjudicating drug cases.

The Houston Chronicle last week ran a feature ("Drug courts turn addicts around," March 17) on Harris County's drug court program claiming higher success rates than the national average:

[Program director Mary] Covington said national data show that 43.5 percent of drug offenders are re-arrested a year after release.

Nationally, Covington said, 16.4 percent of drug court graduates have been convicted of new felony offenses within a year, compared to 6 percent of Harris County’s drug court graduates.

The article is well worth a read for an update and background on the 5-year old Harris County program.

An alternative perspective on drug courts was recently offered in a law review paper by Michael O'Hear, referenced over the weekend at Sentencing Law & Policy. O'Hear (I think rightly) believes that drug courts':

popularity stems in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses— or, more colloquially, on the “war on drugs.” Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, prison populations (and hence prison budgets) were escalating wildly, and many poor minority communities were being devastated by the collateral damage.

There are now more than 2,000 drug courts operating in all 50 states. Drug courts, he says, have become "the generic policy response of choice to dissatisfaction with the war on drugs," but points to one particular area where they do not, according to his research, improve over the traditional court system: "In purely quantitative terms, drug courts are unlikely to reduce [racial] disparities" ... in drug sentencing and "may exacerbate them."

The paper first establishes why, from a statistical perspective, racial disparities in drug arrests and sentencing are not justified by claims that black folks commit drug offenses more frequently. However, he says, "much evidence now suggests that white drug offenders are more likely to benefit" from the "rigorous, prescribed course of therapy" provided by drug courts than blacks.

Not only do the screening processes on the front end prevent many black people from participating, there is also a high failure rate: "although there are about 70,000 [drug court] participants at any given time, the annual graduation rate is only about 16,000," and "failure rates are higher for blacks than whites, by thirty or more percentage points" in some programs. Failure, he notes, "may result in greater incarceration than non-participation."

O'Hear considers such racial disparities a compelling critique of drug courts as they currently exist and says a "better answer" would be "re-imagining drug courts in restorative justice (RJ) terms," noting that "An abundant body of research indicates that RJ processes tend to produce higher levels of satisfaction than traditional criminal processes among both victims and offenders."

He cites a program created by the Milwaukee District Attorney - the Milwaukee Community Conferencing Program - as an example of how restorative justice programs could be crafted as an appendage to the existing justice system. At these RJ conferences,

CCP participants discuss the offense and its impact on the victim and the community more generally. They next try to reach an agreement as to what the offender will do to repair the harm. Agreements are embodied in writing, and include specific conditions for the offender that must be satisfied by a particular date. “Conditions often include some form of reflection (an essay, painting, or poem), letters of apology to the victim, specific community service, restitution in specific increments, tasks related to job/school, sharing experiences with youth, or [drug or alcohol] counseling/treatment.” Successful compliance with the conditions will result in some benefit from the prosecutor: charge dismissal, charge reduction, or recommendation to the judge for a reduced sentence.

Lately, Milwaukee has begun including drug cases in these CCP conferences, and the "basic processes for drug cases are the same as for other cases in the CCP, although there is no distinct 'victim' at the conference." For a variety of reasons, O'Hear thinks a restorative justice approach may be more "capable [than drug courts] of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates."

I'm giving the paper short shrift, but judges, attorneys, and others involved with drug court programs ought to give it a thorough read.

Pretrial mediation bill implements restorative justice concepts

Given this blog's interest in the "restorative justice" movement, I'm pleased to see HB 2139 by McLendon on Thursday's House Corrections Committee agenda, "relating to the establishment, operation, and funding of pretrial victim-offender mediation programs."

A restorative justice approach focuses on meeting victims' needs instead of indulging the punitive populist impulse, which exactly describes this bill's focus.

HB 2139 would allow counties or municipalities to utilize "pretrial mediation" between offenders and crime victims instead of prosecuting low-level crimes. The system could only be used in state jail felony cases and lower where the defendant has no prior convictions. Participation would require consent by both the crime victim and defendant, who as part of a mediation agreement would have to apologize to the victim and pay restitution or perform community service, as well as pay related court costs.

Charges would be dismissed if the defendant successfully completes the terms of the mediation agreement. The whole arrangement sounds similar to successful programs I've heard described from South Australia, particularly in juvenile courts.

What an excellent suggestion! And since it's voluntary, counties that don't want to implement such programs needn't do so. Good bill.

Jailed on Principle: Officers need authority for dispute resolution in field

A Texas man went to jail on principle in Georgia this week, but it wasn't some latter-day civil rights protest:

Fulton County authorities arrested 40-year-old Dan Linscomb of Texas City, Texas, last week for refusing to pay his tab at the all-you-can-eat Iron Skillet buffet in northwest Atlanta. Officials say Linscomb ate at the buffet and let his girlfriend eat from his plate.

The restaurant charged him for two $7 meals, which he refused to pay. Linscomb was taken to the Fulton County Jail on a charge of theft of service. Fulton County Sheriff's Sgt. Nikita Hightower said Linscomb was released two days later after pleading guilty to a lesser charge of disorderly conduct.

I've little doubt Mr. Linscomb was guilty of technically violating some law somewhere on the books in Georgia. But I'm equally confident that nobody goes to jail over $7 unless they're doing it to prove a point - in this case, he didn't believe his girlfriend's de minimus nibblings constituted a second meal. (On that question, I take no position. Quien sabe?)

The incident reminds me of the famous economists' Ultmatum Game, in which a subject is given some amount of money, say $10, to split between themself and another person. Whatever amount of money they give, the other has to take or leave - no negotiating - but if the second person rejects the money, both parties get nothing.

Rational self interest (as defined by economists) would dictate that no matter how low the amount offered by the other party, you maximize your income by taking whatever you're given. But in practice, people interject fairness concerns into their economic judgments, and sure enough many people in the Ultimatum Game refuse payment altogether if they deem the offering so low as to be unfair.

That's what this guy did. He considered what was happening unfair, so he refused to play the game and everybody lost. The incident did the restaurant owner little good, even if they did ultimately extract the $7 from him at the end of the process. Meanwhile, Fulton County taxpayers probably paid somewhere between $200-$300 to book and jail the guy for a couple of days, more if they had to appoint him a lawyer. Nobody really wins and everybody is dissatisfied with the outcome.

Frequently police officers enter an emotional situation and find themselves moderating informally in some dispute between individuals where very little is helped, and the problems are only postponed or aggravated, by taking someone to jail.

Assuming there's not more to the story (no violent behavior, etc.), what would have been a better outcome here? I've heard Marc Levin from the Texas Public Policy Foundation propose giving police officers more dispute resolution authority out in the field (particularly in juvenile cases), perhaps solving a conflict via an impromptu contract (enforced with the alternative of arrest) instead of taking someone into custody. If I'm not mistaken (though it didn't seem to make it into my notes), Leigh Garrett described similar field-resolution strategies used by police in South Australia.

You hear many departments talk about "community policing," but the term seems to mean something different to nearly everyone who uses it. I'd like to see community policing strategies give officers more dispute resolution authority in the field to resolve cases like this one, if possible without necessarily taking anyone to jail. (You'd need to create procedures and training for dispute resolution functions, since that task's a little different from the job they're trained for now.) Perhaps then some of the truly petty stuff really wouldn't need to rise to the level of criminal prosecution and clog up the courts and the jails just because arrest is the only tool in the officer's toolbox.

BLOGVERSATION: Scott Greenfield's reaction to this case at Simple Justice makes some excellent points, particularly that this should have been considered a civil rather than a criminal dispute. A commenter points to this case law which seems to support that position rather strongly (though it's not from the 5th Circuit.) Greenfield also objects to giving police more dispute resolution power "because their opinion on who is right and wrong is utterly irrelevant. Who cares what some cop thinks?" See more discussion by foodies at Yum Yum Sugar.

Allowing invited graff best way to reduce unwanted graffiti

Last summer Grits featured a series proposing a three-pronged approach to graffiti enforcement based on restorative justice principles consisting of enforcement, rapid cleanup and provision of space for invited graffiti art. Everybody does the enforcement part, or tries; some municipalities have embraced the rapid cleanup idea; however scarce few have committed resources to providing spaces for invited art. In my view, all three legs of the stool must be in place to significantly reduce uninvited graffiti.

While writing that series, I was struck by the lack of significant public policy research on the subject given how long graffiti has been with us and how much the practice costs taxpayers. So I was pleased to see a report from the Denver Post ("New study on graffiti, crime correlation," July 20) about a criminologist's project to research graffiti and evaluate the effectiveness of government responses:

[Criminologist Noah] Fritz, a former crime analyst at an Arizona police department, will be the first one to say he doesn't have all the answers.

He knows that graffiti in Denver runs the gamut from obvious gang communication to the artful mural on the back of the garage. He knows that graffiti here, and probably nationally, is largely misunderstood and that painting over it sometimes dares the taggers into a cat-and-mouse game.

What he hopes to probe -- with the help of his criminology students -- is: how graffiti in a neighborhood correlates to crime (he'll layer graffiti-defacing maps over crime data); why do kids do it (he'll interview 18-year-olds who may know taggers and compile personal stories) and whether there's anything the city can do about it (a communal graffiti wall? A celebration of graffiti as art?) that would deter taggers from defacing private property.

Last fall, about 25 Metro students walked the perimeters of the census blocks included in the project, taking pictures of everything, even the smallest of graffiti scratches. ...

The students picked the blocks scientifically and are taking the summer and most of next school year to analyze the types of graffiti. Then they will look at possible crime correlations.

Fritz also wants to see if the graffiti elimination project underway is working. Most of the mapping research was completed last October. Fritz wants to see whether this October there are fewer marks.

"I think it's important, when a government entity puts resources into a project, to see if their strategies are effective," Fritz said. "We always try to be more efficient, but we should be thinking more about whether they are effective."

Key to addressing graffiti (it cannot be "solved," only managed) is recognizing Fritz's important observation that removal alone potentially "dares the taggers into a cat-and-mouse game." As Proximo from Dallas Sidebar put it, there is a "subversive component" to tagging - an element of youthful rebellion that drives the activity. As I wrote this spring, "Playing cat and mouse with law enforcement feeds into a cycle of gamesmanship taggers enjoy, and bored teens with a spray can will inevitably win those matchups just because there are too many of them and police have better things to do."

That's why I think creating invited graffiti spaces must be part of the solution. Indeed, it's often the solution private property owners come up with themselves after feuding with graff writers for years. From the Post:

Mike Allard said he thinks he has found one solution.

The manager of Headed West, a tobacco shop on South Broadway, battled the "gangbangers in Englewood" for months as they tagged the sides of his store. Businesses are fined if they don't paint or wash over graffiti in three days.

So a year and a half ago, he hired some former graffiti artists to draw a mural on both sides. Allard is now battling the city about signage laws but says the store hasn't been tagged since the drawings went up.

"If you don't consider the sides of our building art, then I don't think you can understand art," Allard said.

Fritz and Allard are on the right track, but Fritz's idea of a communal graffiti wall to me doesn't go far enough. One wall, after all, won't provide enough space for a long-term solution.

Mainstreaming graff artists with talent should be an overt goal of public graffiti policy. Make me philosopher king and I believe cities should have civilian graffiti coordinators who manage cleanup crews made up of probationers and coordinate making public and private spots available for invited graffiti art.

Our current approach to graffiti essentially punishes victims. Taggers are seldom caught or prosecuted, so the main way municipalities enforce anti-graffiti ordinances is by fining property owners, essentially victimizing them a second time.

I drive by spots every day that are either covered with graff or where the city is constantly painting over new graffiti - overpasses, storm drains, utility boxes in the right of way, light poles, backsides of road signs. We routinely see graff on these spots, anyway. In most of these cases I'd prefer Mr. Allard's solution - inviting graff artists to do a nicer, more significant piece that will "ride" for much longer than typical outlaw graff.

In many cities, authorities have identified the most prolific local taggers, though it's virtually impossible to arrest them. But knowledge of who they are opens up opportunities to solicit invited graff. Bottom line, in an era when graphic arts skills are in high demand, graff artists with talent should be brought out of the shadows and encouraged, where possible, instead of shamed and prosecuted.

A local graffiti coordinator could assist private interests to hook up with graffiti artists, inviting higher quality graff to preemptively fend off more routine, destructive tagging. Businesses whose walls are tagged repeatedly, homeowners with fences facing the street, utility companies whose boxes are constantly defaced - after years of scrubbing or painting over unwanted graff, I imagine quite a few property owners may be ready to decide, "if you can't beat 'em, join 'em."

In its most fully developed form, perhaps a citywide web-based database could be accumulated of spots where property owners want to invite graffiti and graff artists could submit a sketch of what they want to do for approval by the landowner.

None of this will eliminate tags used for gang communications; for that brand of tagger, the rapid cleanup component and the risk of criminal prosecution remain the only viable tools. But given the immense sums cities routinely spend on graffiti cleanup now with little result, to the extent more artistically inclined graff writers can be diverted to invited venues it would save taxpayers money, reduce the volume of criminal graff, and increase the amount of public art in our cities. That result seems like a win-win all around.

See related Grits' posts on graffiti law and policy solutions:

• Toward a restorative graffiti policy
• Graffiti, art, vandalism and subversion
  
• Graffiti solutions: A cost-benefit analysis
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
  
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
  
• Adidas: Graffiti is legitimate art
• Grading graffiti? What do youth want?
  
• Graffiti on the brain and around the world
  
• Digital graffiti, or, Is there something to a wall that wants us to write on it?
• R.I.P. Victor Montano: Houston graffiti artist
• Can you be arrested for public knitting?
• Amarillo PD pressures businesses to file graffiti charges
  
• Out of our minds: Isn't felony graffiti overkill for sixth graders?
• Charging graffiti as a state jail felony?
• Reduce graffiti by pursuing the crime, not the criminal
• Graffiti in Austin up 400% since 2002
• Austin lags on important third component of graffiti policy
  

Prison ministry group thanks TYC staff

Thanks to the reader who sent me a link to the website of the Juvenile Justice Ministries of Texas, which is "a Christ-centered association whose mission is to strengthen individuals, organizations, and churches who work with juvenile offenders and their families."

The group has a newsletter (see here for past issues), the most recent issue of which includes a plea to its members for mentors to volunteer at the Texas Youth Commission, as well as this thank-you card from the group to TYC staff collectively:


That's awfully considerate. TYC staff don't get thanked much, though they get blamed a lot.

Digging around, there are quite a few resources on their website, and I was pleased to run across this article (pdf) discussing the unique challenges of juvenile prison ministries compared to working in adult systems. I also found interesting this article linked from JJMNT about ministering to "fringe kids," which quotes a youth pastor declaring, “If I started reaching out to the fringe kids and bringing them into my church I’d lose my job!” That's a sad commentary, but probably accurate in many churches.

Prison ministry advocates like the Restorative Justice Ministries Network of Texas have provided a unique and valuable voice in discussions over the future of the adult prison system, and I'm glad to see a web presence for who minister in youth prisons.

To prevent crime, focus resources on children of incarcerated parents

Because children of incarcerated parents are 6-8 times more likely than their peers to wind up in prison themselves, I've long believed that whenever the state chooses to incarcerate a parent of a minor child, a rational crime prevention strategy would focus significant resources for psych counseling, tutoring, mentoring, and other services for their children.

That's the implication to me of a story in USA Today ("For many of USA's inmates, crime runs in the family," Jan. 29) about the extensive family ties among prisoners.

Crime, just like affluence, tends to run in families. "In Texas, which has executed six sets of siblings, there are two sets of cousins on death row. An additional dozen or so death row inmates have relatives serving time in other parts of the state prison system, spokeswoman Michelle Lyons says."

While I don't believe one's bad childhood should excuse criminal behavior, when we know that childhood influences contribute to crime, particularly among children of incarcerated parents, it makes good sense to focus prevention resources there.

RELATED: An alert reader points out that strategies used by the nonprofit described in this Grits post might be a good model, at least a starting point, for a county level program aimed at children of incarcerated parents.

More on what clergy can do to respond to and reduce violent crime

Yesterday I mentioned that my brother John asked on his blog for suggestions what local clergy could do to reduce violent crime and its consequences in light of a rising local murder rate in Shreveport, where he is an assistant pastor.

I've been thinking about the subject since then, and believe the restorative justice model provides opportunities for creative new approaches to the subject.

Restorative justice asks "who's been hurt, what are their needs, and what process can we use to meet those needs and help them transcend their victimization?" As a thought experiment, how might that philosophy play out applied to attempts by the clergy to reduce violent crime through their local ministries?

First, who's been hurt? Obviously, the murder victim's family and friends rank first on this list, and any restorative justice approach must minister to their needs.

I'd also argue for including the family of the offender in the list of "who's been hurt," particularly any children of the offender. That's especially important if a goal of the mission is to reduce violent crime: Children of incarcerated parents are 6-8 times more likely than their peers to wind up in prison themselves, so when a parent commits a serious crime, it places their children at significant future risk.

There are many things churches could do to help meet the physical and psychic needs of those harmed by violent crime. With an interdenominational coalition focused on the problem, perhaps it would be possible to create a volunteer system to establish liaisons to victim and offender families in the wake of such tragedies?

The first step for such a mission would be to track and monitor violent deaths, perhaps partnering with the local PD to make sure the ministry is notified when a murder occurs so assistance can be provided.

For victims', what people need most in the immediate aftermath of such a tragedy is a friend. In the short term, a helpful gesture might be simply bringing food so the victim's family doesn't have to cook while making unexpected funeral preparations, or assisting with babysitting or household chores while the victim's family takes care of its unhappy business. Not only are these acts of service helpful to the victim's family, they give average parishioners a way to participate in the ministry that's doesn't insist on the kind of long-term commitment that will be needed from staff and core volunteers.

Another obvious need: Perhaps churches could either establish a fund to help pay for indigent funeral expenses, or provide resources for services pro bono in the case of murder victims.

After the initial "rapid response," churches could establish interdenominational group sessions for grieving victims and families, preferably led by a licensed counselor, or possibly, for victim families who are willing, they could work with prison ministry groups to pursue victim-offender mediation like the Bridges to Life program in Texas. Such programs give victims a voice and contribute to real rehabilitation for offenders.

Similarly, it's pretty easy to identify key assistance churches could provide for offenders and their families using the restorative justice model that might help reduce crime and promote rehabilitation. Christ did not forsake sinners, and neither should His bride, the church.

For starters, I don't think any New Testament reading can get around the church's duty to visit and comfort the offender in prison. Not only does this fulfill a biblical mandate from Christ himself, talking with the offender may be the best way to identify who within his own family may have been harmed by what happened and give the ministry intelligence about how to proceed in ministering to the offenders own clan.

Just as I suggested a "liaison" to victim families, a liaison to the offenders families would give the coalition a wedge into crime producing dynamics. Children of offenders, IMO, should receive special attention from the church if the ministry's goal is to reduce violent crime. After such an incident, they're inevitably confused, angry, mournful, and incredibly likely to descend into delinquency that will eventually send them into a life of crime. Programs to mentor children of murderers (and other prisoners) may be among the most productive. (In Texas, Big Brothers Big Sisters has launched the Amachi program, which might be a good vehicle for that work.)

A lot of churches in Shreveport including my brother's operate private schools. Perhaps it would be possible to pursue grants or other resources to pay for education of indigent children of victim and offender families, offering them a more promising future despite the tremendous loss they've suffered.

A key to these ideas working would be to suborn proselytizing to a more direct service type ministry. Though tragedy may draw one closer to God, it's a person's own spiritual journey, not some badgering stranger, that's most likely to lead them in that direction. In such a painful environment, if folks think you're there for your own benefit instead of theirs, they're likely to turn away.

Demonstrating piety through acts of service and humility is a better approach,and if there's ever a time for humility it's when facing the trauma caused among survivors by a violent death. IMO the mission could only succeed if participants focused one showing their faith through mercy and action rather than pridefully trumpeting the benefits of salvation. Similarly, some folks will reject assistance, both among victim and offender families, and it would be important to respect those boundaries when they're drawn.

While I've never designed a church ministry, the functional process seems not that much different from designing a political campaign - evaluating goals and resources then creating strategies and tactics designed to achieve them. Viewed in that light, John's "goal" set an impossibly high bar: To "end violent deaths in 2008."

I don't think that's an achievable goal. But goals of 1) reducing the harm from violent crime and 2) reducing the amount of violent crime in the medium to long run, seem both achievable and like a worthy project for an interdenominational, citywide mission.

What do you think of these ideas, and what else could a motivated, citywide coalition of clergy do to respond to and reduce violent crime?

Clergy seeking to respond to violent crime should look to restorative justice

On his blog Wondering Thoughts, my brother, a Baptist preacher in Shreveport, LA, yesterday posted this query:

If you haven't noticed, we had a year of violent deaths here in our city. Local clergy gathered recently to discuss it. Any ideas on how the church can give a missional response and end violent deaths in 2008?

44 Died Violently in 2007:The Shreveport Times

If you have any good ideas, click through and let him know.

I don't know that the church can do anything to "end violent deaths," which no one has seemed able to stop since Cain killed Abel. But I suggested in the comments that clergy seeking to respond to violent crime might look to the restorative justice movement, which emphasizes support for the victims of violent crime and their families, asking "who's been hurt, what are their needs, and what process can we use to meet those needs and help them transcend their victimization?"

Anyone seeking more on the subject should see Grits' coverage of last year's national restorative justice conference which addressed many of these subjects and linked to quite a few additional resources.