Memories of Thanksgivings past: Clemency campaign collaborator ended his life after a terrible crime

Keri Blakinger has an awesome Twitter-thread about spending Thanksgiving in prison. Go read it. She's amazing.

This made me wonder, perhaps for the first time, whether I'd ever published Thanksgiving-themed commentary on Grits. Out of 9K+ posts, I found just two: One was an account of a Thanksgiving meal at a Texas youth prison in Giddings back in '07. The second, in 2011, was a complaint about President Barack Obama's then-chintzy clemency record (it improved dramatically in his second term), criticizing him for pardoning turkeys while quoting a writer, O. Henry, who probably deserved an innocence-based pardon (and certainly deserved one based on his rehabilitation and achievement in later life) for an alleged bank-fraud crime committed in Austin, Texas.

As it happened, an academic named Peter Ruckman, who ran a blog called Pardon Power and was one of a handful of national experts on both presidential and state-level clemency issues, also latched on to the President's O. Henry comments. Grits had been nagging then-Texas Gov. Rick Perry for years to improve his clemency record, so Ruckman and I had become online blog-friends (we never met in person), as he helped me understand how to parse clemency data I was getting in a jumbled mess from the Board of Pardons and Paroles.

Anyway, Prof. Ruckman and I launched a somewhat tongue-in-cheek campaign in 2011 to "Pardon O. Henry," chiding the President for quoting someone denied a pardon to celebrate pardoning turkeys. We created a website to gather petition signatures. I did a little research at the Austin History Center and the O. Henry museum here in town, reading tons of short stories and a half-dozen O. Henry biographies. And Ruckman created a formal posthumous pardon application, vigorously lobbying the Justice Department before it was was eventually denied. We had some fun with it; I learned a lot from the process, both about federal clemency procedures and a beloved American writer. Pete was easy to work with throughout, and a nice guy.

In his second term, Obama dramatically ramped up his use of clemency power, which ultimately was the desired result. But there's a melancholy note I never reported to readers who may remember this long-defunct campaign. Ruckman and I stayed minimally in touch, but I hadn't heard from him for a couple of years when news came this spring that the professor, having reportedly spent much time in a bitter marital breakup, murdered his two sons, 12 and 14, then committed suicide.

I've known this terrible news for several months, but hadn't written about it on the blog. What is there to say? It's about the most awful thing imaginable. However, reconsidering Thanksgivings past, as Keri inspired me to do, made me think of O. Henry, Prof. Ruckman, and his tragic story this afternoon, so I decided to pass it along. Now, Grits fears the president's dumb-ass turkey pardon will annually trigger memories of this macabre coda to what otherwise was a fun and educational little campaign we did together.

Roundup: Jean Valjean at Christmastime and other stories

Here are a few odds and ends which haven't made it into individual Grits posts during a busy week but which merit readers' attention:

Draconian enhancements based on decades-old offenses
Thanks to "enhancements" based on felonies committed two decades ago, a Hays County man received a six-year sentence for stealing $45 worth of ground beef and toys for his children from a Walmart just before Christmas last year. The kicker: Texas Supreme Court Justice Jeff Brown was foreman of the jury who convicted this latter-day Jean Valjean. Les Miserables similes aside, there needs to be some statute of limitations on how long old convictions can be used to enhance new misdemeanors into lengthy prison sentences. Nothing about what this guy did 20 years ago predicts that he's a danger today; in fact, the nature of this latest trumped-up "felony" indicates his priorities have shifted. The fellow committed what otherwise would have been a Class C misdemeanor theft so he could give his kids a modest Christmas, and "To love another person is to see the face of God."

Judges call for independent crime lab
Travis County judges are calling on the city to separate its crime lab from the Austin Police Department, a move presaged by recommendations from the National Academy of Sciences in its landmark 2009 report. Grits agrees with that assessment, with one caveat: They should make the lab truly independent, as was done in Houston. What they shouldn't do is shift those functions to the county medical examiner, as some have suggested. Let's please do this right the first time. In related news, Sen. Cornyn is pushing legislation to reauthorize federal funding for crime labs and reducing rape kit backlogs.

Contempt of cop: A case study
This article from Meagan Flynn at the Houston Press depicts a class example of an arrest for "contempt of cop" by a Harris County Sheriff's deputy.

Can bureaucracy prevent jail suicides?
Despite this Texas Tribune story, Grits suspects that far too much credit is being given to a new intake form when it comes to reducing jail suicides. We'll have to see if reductions hold long-term. But it's just as likely that jails stepped up prevention efforts because the Commission on Jail Standards began making suicides a greater point of emphasis and Sheriffs didn't want to end up in the paper with the next Sandra-Blandesque death occurring in their facility. If that's the case, suicides will continue to fluctuate and may go back up as new incidents arise. I hope I'm wrong, but it seems hard to believe such a small bureaucratic change could make a huge dent in a problem rooted deep in the human psyche. My instincts say to look for a) alternative explanations and b) future increases.

Veterans courts are cool, but don't scale up
This Houston Chronicle article touts veterans courts as an intervention that works, and they do, but it's also true that they're resource intensive and don't scale up well given the volume and gaping needs of the target population. Reported the Chron, quoting the judge in charge of the project: "The common denominator of the veterans in his court is a 'very low sense of self-esteem and self-purpose,' along with self-hate." But couldn't you say that about defendants in every criminal courtroom in America? Strong probation methods work, but they require more resources than most county governments are willing to provide, and you can't place it all on the backs of defendants through expensive court fees. These courts are important experiments, but they are not yet scale-able solutions and are unavailable to most veterans who commit crimes.

Asset seizures skyrocketed since turn of century
Total assets seized by Texas law enforcement increased more than 150 percent from 2001 to 2013, according to Right on Crime. At this point, agencies have become reliant on the income in unhealthy and problematic ways. If the interdiction strategy were working, one wonders, wouldn't authorities seize LESS illicit assets over time?

LWOP for illegal immigrants makes no cost-benefit sense
Here's a legislative proposal that would cost a small fortune with little public safety benefit to show for it: Authorizing life without parole for first-degree felonies committed by illegal immigrants. Life without parole didn't exist in Texas until 2005, when death penalty abolitionists made a deal with the devil, creating the new punishment as the sole alternative available to their clients in death-penalty cases. IMO that legislation threw their clients under the bus. Since then, we've seen hundreds of people sentenced to LWOP while death sentnences dropped. But LWOP is also a death sentence, just in slow motion. Next we had people wanting LWOP for sex offenders, then for sex traffickers, and not for illegal immigrants. There's no public safety argument for this policy and the cost-benefit analysis cannot stand up to scrutiny. This is just pandering to nativist sentiments in a crass and ham-handed way. One hopes cooler, wiser, and more cost-conscious heads will prevail as the bill is considered at the Lege.

1033 program: Not as free as 'free' sounds
Lots of Texas agencies got "free" personnel carriers through the Pentagon's 1033 program, but the Texas Public Policy Foundation points out that that statement masks significant costs to locals from operating the vehicles.

CAN-DO Clemency
Grits was interested to learn of the CAN-DO Foundation, which stands for Clemency for All Nonviolent Drug Offenders. As folks push Obama to maximize his use of clemency on his way out the door,  it's worth mentioning there's still time for him to posthumously pardon the writer O. Henry, as this blog along with Pete Ruckman has long advocated.

Locked up for the holidays
In an item titled, "Locked up for the holidays," the Pew Charitable Trusts' Stateline site examined the impact of the holiday season on inmates and their families and charity work aimed at supporting both.

Obama finally ramped up on clemency in second term, but not nearly enough

As President Obama's total sentence commutations surges past 1,000, it's worth remembering two things. First, just four years ago, his clemency record was so poor that Pete Ruckman at Pardon Power and your correspondent launched a campaign urging him to pardon deceased writer O. Henry to highlight his stinginess on pardons, which were then at near-historic lows under his presidency. Though the application was denied long ago, Ruckman is still carrying that banner!

Second, as evidenced by this graphic produced by Prof. Ruckman, the president's application of executive clemency has been puny and reticent compared to the reality of federal overincarceration:

In that light, not so much to get excited about, huh? Mark Osler, formerly a law prof at Baylor, now at the University of St. Thomas, had an op ed this week urging the President to ramp up his end-of-term clemency to historic levels. And as Pete Ruckman reminded the president as he oversaw his final turkey pardoning, it still wouldn't hurt him to pardon O. Henry.

MORE: From Ruckman on Obama's clemency legacy.

Prospects bleak for clemency in 21st century

Barack Obama's record in clemency is better than it was when this blog, with Peter Ruckman's Pardon Power, launched a web campaign asking the president to pardon the writer O. Henry in order to highlight Obama's dereliction on clemency matters. (The president quoted O. Henry, whose own federal pardon application was once turned down, while pardoning two turkeys, which at the time rivaled the number of people who had experienced his mercy.) Since then, he's done a few things. At this late stage of his presidency, Ruckman reported yesterday:

President Obama has granted 70 pardons (4 conditional) and 187 commutations of sentence (6 conditional). The figure for pardons is lowest for any full term president since the administration of John Adams (1797 to 1801). The figure for commutations is better than most recent presidents, who were both notoriously neglectful of the pardon power and received far fewer applications (see second chart, below). 150 of President Obama's 257 total grants (or 58 percent) have been granted in a single month alone, December.

Recently, the Pardon Attorney at USDOJ issued a letter of resignation. Reported USA Today, "Her resignation letter suggests a broken and bureaucratic process at odds with President Obama's own aim to exercise his pardon power "more aggressively" in the final months of his presidency." Moreover, reported the paper, her office is swamped with insufficient resources to do its job:

Since the administration announced the initiative in 2014, applications for clemency have exploded. There are now 10,073 clemency cases pending — three times as many as in 2013. And that doesn't count thousands more cases seeking free legal help through the Clemency Project, an outside consortium set up to assist with the initiative.

When he announced the initiative in April 2014, then-Deputy Attorney General Jim Cole said the department had "pledged to provide the necessary resources to fulfill this goal expeditiously." While the administration didn't set a target for the number of cases, former Attorney General Eric Holder told the Washington Post last year that he had hoped that as many as 10,000 people could have their sentences reduced under the program. So far, Obama has granted less than 2% of those.

That said, here in Texas, Gov. Greg Abbott's stinginess on clemency compares unfavorably even with the president's parsimonious record, as well as Rick Perry's before him. For the most part, whether presidents or governors, the executive branch in 21st century American democracy remains mostly immune, seemingly, even to valid, individual pleas for mercy, much less calls to use clemency to directly confront the ills of mass incarceration.

15 states' governors 'grant frequent and regular pardons' but not Greg Abbott, yet

Regular readers know Grits remains frustrated at Gov. Greg Abbott's parsimonious pardon policy in his first year in office, in which he granted four clemency petitions for penny-ante in the run up to Christmas without even issuing a press release to highlight the governor's miserliness regarding mercy.

When he took office, Grits considered it notable that Abbott had never spoken publicly on the topic, and one year in it's clearly only barely on his radar screen, even though it's one of only a handful of core duties of the office. As Attorney General, his office had ruled the governor could issue posthumous pardons, but beyond that we know little of Abbott's opinions on clemency. No reporter has ever asked him, to my knowledge, or if they did they didn't publish the quotes.

As such, we have answers to only a few of the questions Grits offered up a year ago before Greg Abbott ascended to the governorship:

One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.

Most of those questions remain unanswered, though Abbott ending the year with this niggardly batch of four under-the-radar pardons three days before Christmas doesn't bode well.

In this vein, Stateline has an interesting new article (1/6) titled, "Move Is On To Make End-Of-Year Pardons Less Random" which offered the following overview of state-level clemency:

Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.

But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars.

“I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”

But not in Texas, at least not yet.

This could change. Abbott could direct the Board of Pardons and Paroles to be more aggressive about finding clemency candidates and choose future appointees with that goal partly in mind. (Rick Perry, by contrast, declined two-thirds of his own appointees' recommendations.) But it's easier and safer to do nothing, so that's the most likely outcome.

See prior, related Grits posts:

• Thanks for nothing, Greg Abbott: Why conservatives should demand 'industrial scale' clemency
• Pardon me, Governor Abbott, but what about your clemency policy?
• Innocence and clemency: An early test for Greg Abbott
• Pondering the Ghosts of Christmas Pardons Past, Present, and Future

Thanks for nothing, Greg Abbott: Why conservatives should demand 'industrial-scale' clemency

UPDATE/CORRECTION: The Dallas News' Brandi Grissom emailed to say that, "Abbott did issue pardons this week, a whopping four of them, but he didn't put out a press release. Here's my story." Grits apologizes for the error; I'd been checking the governor's site every day all December for pardon news, but clearly I need better sources, like Brandi.

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Original post, corrected:

Clemency Grinch, Pardon Scrooge - pick your seasonal epithet, but Texas Governor Greg Abbott is about to complete his first year as governor without exercising once having barely exercised one of the handful of core functions assigned to his office in the state constitution: Executive Clemency.

Grits has been waiting to see if the governor would issue a handful of symbolic pardons around Christmas, as was his predecessor's wont, but so far, no dice. I'm not a great fan of the Christmastime pardon tradition, but at least it acknowledges the gubernatorial function. So far, Greg Abbott has shirked this responsibility. To his discredit, in Abbott's first year as governor, Barack Obama has granted clemency to more Texans than him, and Obama's clemency record is abysmal.

It's not like the Texas governor really does much: Sign or veto bills, make appointments, and clemency really are the main things on his plate under the state constitution. But one of those three has been all but abandoned.

The American Conservative this week published an article lamenting "small trickles of clemency" by President Obama and New York Governor Andrew Cuomo "where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency."

 As the author recognized, "the real action is at the state level, which handles most policing, sentencing, and imprisoning." In this discussion, former Gov. Rick Perry made an appearance among "recent governors [who] have distinguished themselves with their appalling miserliness." Citing a data point which originated with research on Grits, he declared that "Rick Perry appointed a clemency board of tough-on-crime hardcases, then rejected two-thirds of their pardon and commutation endorsements."

Clemency these days mostly comes up in the context of capital murder and innocence cases. But this article suggests that governors embrace "industrial-scale" clemency aimed at reversing mass incarceration.

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error. Even with DNA evidence and a verified confession exonerating the five youths convicted of raping and assaulting the “Central Park jogger” in 1989, former prosecutor Linda Fairstein still insists she got the right culprits. But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.

The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong.

The article supplies an overview of past acts of mass clemency and the recent re-embrace of the pardon power across partisan lines by a handful of American governors:

U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore—as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office. 

Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition. (Many of these examples are drawn from Marie Gottschalk’s new book Caught: The Prison State and the Lockdown of American Politics, the best single-volume overview of the ongoing crisis in American criminal justice.)

Today, even as clashing currents push at the same time for greater mercy and greater harshness, an affinity for the pardon power has trespassed wantonly over the country’s regional, ideological, and partisan divides. Recent governors who have pardoned and commuted with magnanimity include Arkansas Republican Mike Huckabee (1,058 pardons in his 10 years in office), California Democrat Jerry Brown (83 pardons on last Easter Sunday alone) and Michigan Democrat Jennifer Granholm (182 commutations in her two terms). Haley Barbour pardoned 203 prisoners at the end of his second term as the Republican governor of Mississippi, an act that briefly became a national non-scandal eagerly covered by the national media sniffing around for gotchas. (Thank you, o “liberal” media.)

Considering the increasing number of low-risk elderly folk in state prisons, there's even an argument for expanded clemency on fiscal conservative grounds:

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

Bottom line:

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.

Greg Abbott has yet to embrace barely embraced his clemency power even on a symbolic level, much less on an industrial scale. But what's at stake is more than the fates of individuals who benefit from executive mercy, concludes the American Conservative piece, but rather the issue speaks to who we are as a people and the hypocrisy of mass incarceration in the self-styled "land of the free":

According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

Since Rick Perry issued his last pardons on December 19, 2013, it's now been it took more than two full years since before any Texan received the benefit of state-level executive clemency, and then the governor's mercy was limited to four, unheralded souls. Grits isn't sanguine Greg Abbott will ever ramp up to "industrial scale" clemency given this tepid start, but that's what's needed.

Texas Voices v. small towns; CLEAT v. Governor, Lawyers v. client, and other stories

Here are a few short tidbits while your correspondent's attention is focused elsewhere:

Texas Voices may litigate to overturn illegal small-town sex-offender residency restrictions
See bloggerly coverage of possible litigation by Texas Voices for Reason and Justice to repeal municipal sex offender residency restrictions in 46 small municipalities which are not legally authorized to impose them. See an announcement from Texas Voices leader Mary Sue Molnar, who's done a great job with her team building the group from scratch and giving it a credible presence at the Legislature. Legal action would kick their work up a few notches. Good for them. I'm proud of you, Mary Sue, keep up the great work!

Wrong question about lawyers refusing to help death-row client
At the American Constitution Society blog, Brandon Garrett poses the question, "Can a Lawyer Oppose His Client's Plea to Live?" In Texas, we know the answer to that question is clearly, obviously, and incontrovertibly, "Yes." The real questions are, "Does that make said lawyer an asshole?," and "Will the lawyers' peers at the state bar tolerate such behavior as acceptable?" Grits believes the answers to those questions are also "Yes," and "Yes." I'm kind of pissed at the defense bar right now. They're not very good at policing their own, Mark Bennett's on-point blog screeds notwithstanding. See the latest on the case from the Texas Tribune and coverage from The New Yorker.

CLEAT adopting Alinskyite attack tactics vs. governor
Fascinating. Our Alinskyite friends at the Combined Law Enforcement Associations of Texas (CLEAT) are mad at Governor Greg Abbott, reported the Dallas News' Brandi Grissom, because he "appointed Josh McGee, a vice president at the Houston-based Laura and John Arnold Foundation, to the State Pension Review Board this week.The review board, created by the state legislature, is charged with overseeing state and local government retirement systems. McGee has penned articles warning of financial ruin cities could face because of mismanaged pensions." CLEAT, naturally, has adopted a Chicken Little stance, pronouncing that the end of the world is nigh and the Governor has sold them out. That didn't take long!

Anthony Graves hagiography
Check out a sweet little profile of exoneree and Houston crime-lab board member Anthony Graves at Houstonia. I'd vote for him. What's he running for, again?

Well, probably not the only one
"The Real Problem With Police Video" Should police control the footage?

Apologia obscures accountability on Sandra Bland death
Read the Austin Statesman's Ken Herman on "What white people think about Sandra Bland" "Cops hands not bloodless but Sandra Bland not murdered." For the record, Grits never thought she was murdered. But I do think, as Herman finally acknowledged near the end of his column, that "Law enforcement’s mishandling of this case led directly to Bland’s death." And I wish law enforcement and their apologists spent as much time focusing on that fact as they do debunking an emotional statement to the media by Bland's family in the immediate aftermath of her passing. Sandra Bland wasn't murdered. So what? If "Law enforcement’s mishandling of this case led directly to Bland’s death," what will be done to impose accountability and ensure similar "mishandling" won't recur in the future? Why isn't that the focus of MSM opiners?

On the consequences of locking up Mom
Researchers at Sam Houston State are studying whether having an incarcerated mother contributes to criminality among adult offspring. The not-shocking answer from a longitudinal study is "yes."

Bad cops, bad puns, bad contracts, bad Democrats and other happy stories to cheer up your day

Here are several items which merit readers' attention even if I don't have time to blog on the topics:

• If coverage in the Express-News is indicative, a community forum on civil rights and policing in San Antonio didn't at all focus on the contract negotiations which just began between the city and the union. But that document and the state civil-service code which authorizes it govern SAPD disciplinary processes (read: what happens to cops who break the rules) to an arguably greater degree than the chief or DA. Campaign Zero has offered some thoughtful suggestions on reform provisions advocates should ask for in police contracts, many of which could apply to meet-and-confer contracts Texas.
• The screwups surrounding the case of Jerry Hartfield, a mentally ill man imprisoned in Texas  for 35 years after his conviction was overturned, are as mind boggling as they are banal. 
• Another suicide by an out of state motorist in a Texas county jail is being questioned by his family. This one likely won't receive the same attention as Sandra Bland. OTOH, without the uproar surrounding her case, one doubts it'd have been covered at all.
• Grits didn't realize they were still doing roadside cavity searches for drugs in Harris County in 2015. You learn something new every day. A bill passed this session and which goes into effect Sept. 1st would require a warrant for law enforcement to conduct body cavity searches. I wonder how many agencies will formally have to change their practices?
• The pun in this headline about bite mark evidence was as inevitable as it is inexcusable. See related coverage from Jordan Smith, formerly of the Austin Chronicle, and an op ed from the National Law Journal.
• Here's a reminder that Democrats sucked on criminal-justice policy in the '90s. Grits hasn't forgotten.
• Voters will decide bail reform in New Mexico.
• Here's a strident but justified call for more aggressive use of presidential pardon power. 
• Read Prof. Sam Gross on "The staggering number of wrongful convictions in America."

Innocence and clemency: An early test for Greg Abbott

Ben Spencer's case provides an early-in-term test for new Texas Gov. Greg Abbott's clemency policy. Reported Jennifer Emily at the Dallas Morning News (Feb. 8):

Spencer wants new Republican Gov. Greg Abbott to pardon him based on actual innocence. In other words, he wants Abbott to proclaim Spencer didn’t commit the crime.

“I’m getting older,” Spencer said during a recent interview at the Coffield prison unit where he turned 50 in December. “I try to keep a positive outlook, hopeful that one day, by some means, I’ll be free.”

Spencer was convicted in the 1987 fatal robbery of West Dallas clothing firm executive Jeffrey Young during the city’s crack cocaine epidemic. He was sentenced to 35 years for murder but won a new trial after a witness did not disclose she had received reward money. It was on that second chance that a jury sentenced Spencer to life in prison for aggravated robbery.

Spencer then won a third opportunity — a hearing in front of state District Judge Rick Magnis in July 2007. That chance came after witnesses pointed to another man as the killer and questions surfaced about how much witnesses could have seen from 100 to 200 feet away on a dark, moonless night. Magnis eventually found Spencer innocent. But Spencer’s hopes were dashed in April 2011 when the Court of Criminal Appeals rejected the judge’s findings.

Spencer’s new plea will go to the Texas Board of Pardons and Paroles, which will make a recommendation to Abbott. If the board or Abbott denies his request, Spencer could be running out of chances. ...

Dozens have written to the parole board in support of Spencer’s pardon, including lawmakers and exonerees who served time with him.

But the letter that could have the most impact is from Craig Watkins, who served as Dallas County’s district attorney for eight years before leaving office Dec. 31.

Watkins had opposed Spencer in the 2007 hearing before Magnis. But in Watkins’ letter, written while still in office, he said that the hearing happened before he created a nationally recognized conviction integrity unit and witnessed the release of so many wrongly convicted men.

“We learned many lessons through those exonerations,” he wrote. “We confirmed that eyewitnesses can be mistaken in their identifications. We established that science can disprove even the most resolute witnesses. And we proved that even well-intentioned, well-meaning prosecutions can nonetheless be misdirected.”

Russell Wilson, who oversaw the conviction integrity unit for Watkins and is now in private practice, said he’s not sure a jury would convict Spencer today.

“Any jury hearing a case today is aware of problems with identification. And, in Ben’s case there is a viable alternative suspect,” Wilson said. “The evidence that puts you in prison has to keep you in prison every day that you’re there. If it’s not good enough, then you should be free.”

Watkins’ new stance could have sway with the board. The Court of Criminal Appeals noted in its ruling that Watkins, a Democrat, is known for exonerating the innocent and that he did not at the time support Spencer.

RELATED: Pardon me, Governor Abbott, but about your clemency policy?

Pardon me, Governor Abbott, but about your clemency policy?

Despite recent national attention to clemency policy, I've yet to hear of any reporter asking Texas Governor Greg Abbott about his. Might he order a review of the hundreds of cases in which the Board of Pardons and Parole recommended clemency and Perry never signed off to see if deserving candidates were overlooked? Should we expect clemency to be exercised regularly as a routine part of the governor's duties or will it be relegated to symbolic Christmastime media rituals, as under his predecessor? And in general, as Grits wondered last November:

Will Greg Abbott exercise clemency more generously than Perry? Texas' longest serving governor rejected two-thirds of recommendations for clemency sent to him by the Board of Pardons and Paroles, for the most part allowing the constitutional pardon power to atrophy on his watch. He's not the only executive-branch figure to ignore the clemency process: It's something Rick Perry and Barack Obama have in common. Still, to my knowledge, no reporter ever questioned Greg Abbott during the campaign about his stance on executive clemency: Other than his view that governors can issue posthumous pardons, who knows what Abbott thinks about the pardon power?

Along with vetoes and bill signing, clemency is one of a handful of unique executive powers in a system based on separation of powers. But you wouldn't know that from the gubernatorial campaigns last year nor from media coverage of Texas' executive, which typically treats clemency as a Christmastime afterthought if it's considered at all. As much as I'm pessimistic about whether Abbott might adopt a more aggressive clemency policy, I'm even more disappointed that the man made it all the way to the governor's mansion seemingly without ever facing a question about clemency or discussing the issue publicly at all. That speaks more to a failure of press and process.

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.

Pondering the Ghosts of Christmas Pardons Past, Present and Future

Will Texas Gov. Rick Perry issue one last round of Christmas-time pardons on his way out the door?

The future of executive clemency looks bleak.
Image from A Christmas Carol, 1951.

Usually he'd do it this week. (The sign of a clemency geek: I've been keeping the governor's web page up in a browser tab and periodically refreshing it. At least I'm up to date on the governor's views on the Australian hostage crisis and Chanukah.) Grits notoriously is not a great fan of the Christmas pardon phenomenon, but for the most part, with a few notable exceptions (especially early in his governorship), Perry has restricted routine exercises of clemency to a minimalist, annual pre-Christmas ritual.

One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.

Grits hopes we see one more clemency announcement from Rick Perry, who can afford to be generous on his way out the door. But even more, I hope Greg Abbott ends this annual charade and integrates the clemency function more deeply and thoughtfully into the day-to-day duties of the state executive. With a few, notable exceptions (the Tulia cases, DNA exonerees, death-sentence commutations to comply with US Supreme Court orders) Rick Perry either ignored clemency or treated it as a political prop. Most years, an annual announcement during the holiday season of 10-20 lucky winners of the clemency lottery was the most one could hope for.

But clemency is one of the core duties of a state executive, in Texas filtered through the governor's appointees at the Board of Pardons and Paroles. It shouldn't just be a once-a-year thing and if two-thirds of the BPPs recommendations are to be rejected, reasons ought to be given.

There are many good explanations for the rise of mass incarceration in America over the last four decades, but one contributing factor you don't hear discussed very often is that mass imprisonment coincided with a precipitous decline both in the exercise of executive clemency and judges' habeas corpus power, both of which became more timid, stilted and stymied as they fell under sustained political attack, especially surrounding the death penalty. But these are the two main remedies for overincarceration envisioned by constitutional framers. So if the executive and judicial branches are incapable of reining in mass imprisonment, allowing the tools granted them for that purpose to atrophy from disuse, that leaves the legislative branch which largely created the problem in the first place. In Texas, the Lege is slowly reconsidering its predilection for expensive, lock-em-up solutions to every social problem. But that process would go faster if the governor and the courts exercised leadership on clemency using the means already at their disposal.

WANT MORE ON PARDONS? For current news on Christmas-time pardons from other states and from the Pardon-Grinch-in-Chief President Obama, don't forget to check the blog Pardon Power by the inestimable P.S. Ruckman, who tracks clemency issues nationwide and around the globe.

Odds and ends: How best to reduce pot penalties, surging toward inanity, pregnant in jail, and other stories

Here are several items which haven't made it into independent posts this week but merit Grits readers' attention.

Wu: Reduce pot possession <.35 ounces to ticket-only misdemeanor
Houston state Rep. Gene Wu has filed legislation, HB 325, to reduce possession of up to .35 ounces of marijuana to a Class C misdemeanor. While Grits generally supports penalty reduction for pot possession, .35 ounces seems like an odd cutoff point. Presently, possession of up to two ounces is a Class B misdemeanor based on the assumption that such lesser amounts represent personal use levels. I see little reason to treat someone possessing a half ounce for personal use differently than someone possessing a quarter ounce. To my mind, the best solution would be to ratchet down current penalty categories by one level, not to create a new category to carve out small amounts.

That said, I'm incredibly appreciative that Wu's raising the issue at all and would not let the perfect become the enemy of the good by opposing the idea. But recent polling indicates the public would support more aggressive reforms.

Surging toward inanity
Following up on themes from recent Grits posts, check out a pair of recent stories on the politics of Texas' border "surge":

• Lubbock Avalanche Journal: Rangel: Border security becoming even bigger issue
• El Paso Times (editorial): Texas leaders lack data on 'surge' impact

Drug war corruption? Say it ain't so
A Starr County sheriff's deputy was arrested smuggling pot through a border checkpoint.

Pregnant in jail
Check out an SA Current story titled "The fight for better care for pregnant women in Texas jails" which informs us that a coalition of groups led by the Texas Jail Project is "calling on the Texas Commission on Jail Standards to implement more robust, detailed policies and procedures to ensure pregnant women get proper obstetric, prenatal and postpartum care while they're incarcerated in Texas county jails. The coalition argues that, with more than 200 county jails statewide, the commission's minimum standards aren't strong enough, nor are county jails held accountable if appropriate care isn't available, creating a dangerous situation for expectant inmates."

Why grand juries don't indict cops
Riffing off the Ferguson kerfuffle, FiveThirtyEight has a column speculating on reasons grand juries almost never indict police officers. Scott Greenfield points out that, in the Ferguson case, the prosecutor did not actually ask the grand jury to indict. Their role was essentially to function as a stage prop in political theater. MORE: From Al Jazeera America, see "Why police are rarely indicted for misconduct" and from The Atlantic, check out a piece from Conor Friedersdorf on why the case more police reform is bigger than Ferguson and the Michael Brown killing.

Explaining the Great American Crime Decline
An article from the new Marshall Project suggests various hypotheses for the jaw-dropping decline in crime witnessed across the country since the early 1990s. The essay that reminded me of Grits own, similar compilation of hypotheses a couple of years ago, though he didn't mention my personal favorite "video game" theory, which holds that young men spending hours playing Grand Theft Auto on an XBox have less time to spend on the streets stealing my car. The National Academy of Sciences recently published an extensive report on this topic. See an overview essay on their findings and find the full report here.

Obama's clemency record sucks
Grits may complain that Texas governors under-use the pardon power, but it bears repeating that President Barack Obama's clemency record sucks harder than any American president in living memory.

Shameless self promotion
Grits was nominated for the American Bar Association's Blawg 100 list of top legal blogs which are chosen by reader votes. Go here to vote for Grits in the criminal justice section and to check out the list of other nominated blogs.

Holiday clemency questions at gubernatorial transition

On Friday, Michael Hall at Texas Monthly wondered, "Will Rick Perry grant clemency to Max Soffar?" His post brought to mind two broader, related questions.

First, will Rick Perry issue one more round of Christmas-time pardons, as has become his wont, before departing for the presidential campaign trail? (A corollary question, if yes: Will they include significant pardons, like Soffar's, or only trivial ones like in most prior holiday seasons?)  And, second ...

Will Greg Abbott exercise clemency more generously than Perry? Texas' longest serving governor rejected two-thirds of recommendations for clemency sent to him by the Board of Pardons and Paroles, for the most part allowing the constitutional pardon power to atrophy on his watch. He's not the only executive-branch figure to ignore the clemency process: It's something Rick Perry and Barack Obama have in common. Still, to my knowledge, no reporter ever questioned Greg Abbott during the campaign about his stance on executive clemency: Other than his view that governors can issue posthumous pardons, who knows what Abbott thinks about the pardon power?

Hall to Governor: Pardon Max Soffar

At Texas Monthly, Michael Hall has published an extended open letter to the governor pleading for executive clemency in the case of Max Soffar, who has "been on death row for a third of a century for a crime I'm certain he did not commit." Soffar has liver cancer and will likely perish before the courts decide his pending habeas corpus writ. Hall urged the governor to allow Soffar to die at home with his family instead of in prison.

RELATED: See an essay on Grits from Texas Southern journalism chair Michael Berryhill about Soffar's case.

Christmas clemency trivializes pardon process

Regular readers know Grits is no fan of the modern practice of Christmas-time clemency, which I think trivializes presidential and gubernatorial pardon powers by treating them as some sort of "gift" as opposed to an ongoing duty of the executive branch. Unfortunately, disgracefully, that's how clemency is treated in 21st century America nearly across the board.

This year, Texas Gov. Rick Perry issued a dozen pardons, mostly for trivial offenses committed long ago. Only one pardon from this most recent batch was for an offense committed while he was in office. Go here for a tally of Perry's pardons prior this latest round.

President Barack Obama's 21 clemency grants this year were slightly more interesting, including eight commutations of drug sentences including two Texans whose life sentences were commuted to 20 and 21 years, respectively. These were sentences for which penalties were recently lowered by Congress to reduce the crack/cocaine disparity. That's all well and good, a fine symbolic exercise, and welcome news for the eight individuals involved. But there are thousands of people in federal prisons sentenced under the same guidelines. Grits still believes the president should use his pardon power to reduce those sentences across the board as a class rather than pick out a few, lucky individuals for symbolism's sake. (See more on Obama's latest clemency grants here, here and here.)

MORE: Doug Berman at Sentencing Law & Policy expressed similar mixed feelings about the important precedential value but limited scope of Obama's commutations:

though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.

Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."

RETROSPECTIVE: A few years ago, I authored a column in the Dallas Morning News titled "Holiday pardons send wrong message" that criticized the modern-day Christmas clemency practice. With the exception of Obama's eight commutations, you could swap out the trivial cases chosen for clemency this year, or virtually any year, with the ones described in that article without missing a beat. Find that 2010 column republished below the jump.

Perry ignores most recommendations for clemency from Board of Pardons and Paroles

A friend of the blog is giving a presentation tomorrow on the topic of executive pardons in Texas, so Grits updated my running chart of executive clemency decisions in the Rick-Perry era to include data from FY 2011 and 2012. Here it is:



So far, Gov. Rick Perry has granted about one out of every 33 clemency requests received by the Texas Board of Pardons and Paroles since he took office in 2001. By contrast, as president, George W. Bush granted clemency to one out of every 55 applicants during his two terms; for Barack Obama, the figure so far is one out of 239, Peter Ruckman at the Pardon Power blog reported in August. Ronald Reagan, by contrast, granted one out of every eight clemency petitions received during his tenure. For Richard Nixon, it was one out of three.

One aspect of these Texas data Grits finds fascinating: The large number (416) of applicants for whom the Board of Pardons and Paroles recommended clemency but the Governor did not grant it. That happened in a whopping 67% of cases in which the board recommended mercy over those 12 years. It would make quite an interesting analysis for some reporter or academic to examine in greater detail cases in which the BPP - who are all Perry appointees and by no means bleeding heart liberals - recommended granting clemency but the Governor denied it. Texas' parole board has a well-earned reputation as a bunch of hard-asses, but they appear more inclined to mercy than the politician who appointed them.

America's Founding Fathers viewed clemency as an essential check on legislative and judicial overreach, one that's been emasculated beyond recognition in the last quarter-century. Perhaps that's attributable to infamous cases like Gerald Ford's pardon of Nixon or Bill Clinton's pardon of a prominent campaign contributor on his way out the door. Or maybe, in this hyper-punitive era of mass incarceration, where the United States has less than 5% of the world population but 25% of its prisoners, the values of forgiveness and mercy simply have fallen out of fashion.

Alexander Hamilton argued in Federalist Paper #74 that without "easy access" to clemency, "justice would wear a countenance too sanguinary and cruel." Who doubts that outcome is precisely what's represented by the data in the chart above?

So much for second chances: Pardons plummet under Obama

Almost nobody seems to care that presidential pardons and commutations under Barack Obama have fallen to appallingly low rates, making him perhaps the least merciful president in American history. A recent op ed in the Washington Post concluded:

Alexander Hamilton wrote in the Federalist Papers: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Hamilton knew giving that power to one person could tempt him to be too forgiving, or too cruel, and end up making him too cautious for fear of criticism, but he argued that “humanity and good policy” would prevail and show “that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”

So far, Obama has done little to justify Hamilton’s optimism. He has granted just 39 pardons and only one commutation, while denying more than 6,700 petitions. In his first term, Ronald Reagan signed more than 10 times as many pardons and commutations as Obama did (250 vs. 23); George H.W. Bush more than three times as many (77); and Bill Clinton more than twice as many (56). The “easy access” that Hamilton envisioned has nearly disappeared.

In January 2010, Obama said that “one of the great things about America is that we give people second chances.” He could do just that by ordering a special review of the thousands of clemency applications at the Justice Department and White House that are growing older by the day, and by commuting the sentences of offenders of all races that are too severe, like those for the five serving life terms without hope of parole for nonviolent offenses. The Founders gave the president the pardon power for good reason; Obama has not only the right, but also the duty, to use it.

Following up, Peter Ruckman at Pardon Power posted this excellent chart putting Obama's no-pardon policy in historical perspective. E.g., Richard Nixon granted a third of all pardon and commutation applications; Obama has granted one out of every 239.

Roundup: Top stories cropping up during Grits' recent absence

Grits is still poking around at news stories that cropped up while this blog was on a brief hiatus and thought I'd share a few that may not make it into independent posts.

Houston police union balks at mandatory DWI blood draws
The Harris County DA now requires blood tests in every DWI case where drivers refuse a breath test. The police union, reported the Houston Chronicle (July 28) objects because it takes police off the street and makes them unavailable for other routine tasks. "'They're not going to be as savvy on how to do these warrants, so it's going to take them six to eight hours, and that means the officer is off the street for that entire time,' [HPOU President Ray] Hunt said. 'It's a major issue.'" Grits' take: The new DA is willing to sacrifice police coverage to make securing DWI convictions easier, an option available to him because police and prosecutors' funding come from different pots (city vs. county). Whether that's a wise public policy choice depends on whether you think maximizing police coverage or misdemeanor convictions improves safety more. IMO the strongest evidence argues for the former, but reasonable folks may disagree.

Bribery investigation targets Denton Sheriff
Reported the Dallas Morning News (Aug. 9), "The Denton County sheriff (William Travis) is under investigation over allegations that he tried to bribe a political opponent to quit an election and also tried to bribe a former deputy into abandoning a lawsuit against the department." All involved deny the allegations. Here's a link to the affidavit written by Texas Ranger James Holland to seize the cell phone of Constable Jesse Flores as part of the investigation into Sheriff Travis. As an aside, readers in the comments pointed out that a Denton County Sheriff was convicted of bribery 25 years ago, also based on offering a political opponent a job to drop out of the race.

Light sentence for cop who stole from crime scene
A Houston police officer pled guilty for stealing cash from a crime scene. He received deferred adjudication with two years of probation and could ultimately have the conviction wiped from his record. After all, one supposes, he was only stealing from criminals.

GOP critic blasts Montgomery County private prison maneuvers
A blogger at GOP Vote complains that the Montgomery County Commissioners Court has launched into a seemingly never-ending jail building spree without consulting voters.

Opposition mounting to McAllen's private jail scheme
Fifty groups have signed onto a letter opposing a speculative jail privatization scheme in McAllen, the McAllen Monitor reported. Here's a copy of the letter. Notably, the Monitor knew about the proposed deal and intentionally failed to report it for more than a year. If they hadn't, the opposition might have a better chance of influencing the process.

News flash: Parole board must follow laws
This story from ABC's Good Morning America about Texas parole laws is possibly the most ignorant thing I've seen written by a professional reporter in 2013, which is saying something. The writer complains of a "loophole" requiring murderers (or anyone else) convicted between 1977 and 1987 to be released via a since-eliminated "mandatory supervision" law, under which they're let go when time served plus good time equals their sentence. What a crock! Since when is it a "loophole" to apply the law as written? Anyway, that hasn't been the case for years but it would be unconstitutional (in spades) to apply ex post facto rules to sentences issued under the old regime. This story was a) 26 years old, so not "news," b) utterly ignorant of the law and reality, and c) blatant demagoguery. Pathetic that this garbage passes for journalism at a major national news outlet.

Pot busts lowered to Class Cs in Hudspeth County to save jail space
Hudspeth County has no room at the inn jail for drivers caught with marijuana at the Border Patrol checkpoint in Sierra Blanca so the Sheriff gives folks Class C paraphernalia tickets and sends them on their way. Said Sheriff Arvin West, "The last thing in this world I want to be is a pothead hero, but the laws we’ve got now don’t work. Something’s gotta change."

Did Texas DPS unwittingly conspire in using NSA spy intel for drug cases?
Despite my intense interest, Grits hasn't written much about the NSA metadata collection scandal because it's being intensively covered at the national level and isn't a Texas-specific issue. But the revelation that the DEA uses that intel then lies about its sources in court, pretending probable cause was generated at traffic stops, almost certainly has implications for cases in Texas, and our Department of Public Safety may have been an unwitting accomplice to this fraud. Reported Reuters:

two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily. (Emphasis added.)

A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.

DPS wouldn't have known about the NSA angle. From their perspective, the state police just received and acted on tips from the DEA. But if they then conspired to pretend the stop was based solely on a traffic violation and failed to disclose the DEA intel to defense counsel, that would be a significant breach of trust. Though not Texas-specific, Gideon at A Public  Defender lays out the implications of this revelation as well as anyone I've seen.

New Holder policy either 'conservative,' 'lawless,' or (most likely) just pro-prosecutor
Conservatives are split over US Attorney General Eric Holder's announcement that the USDOJ will no longer pursue charges with mandatory minimums in drug possession cases. Marc Levin and Vikrant Reddy from the Texas Public Policy Foundation wrote in The National Review that Holder had adopted "conservative sentencing reforms" while columnist Charles Krauthammer bloviated that the decision amounted to "lawlessness." Our old pal Vanita Gupta had a column in the New York Times framing the issue of drug-war based overincarceration in terms of Texas' Tulia episode and suggesting more effective ways to reduce it. Ken at Popehat provided a good explanation of what Holder's new policy will mean in practice and the drawbacks of relying on prosecutorial discretion to limit mass incarceration. At Forbes, Jacob Sullum reminds us that the Obama Administration's record on the drug war has been generally atrocious. He points out that if Holder's "criteria identify people who do not deserve mandatory minimums, they also identify people who deserve the president’s mercy" via the pardon process. Don't hold your breath.

Documented Innocence: Two new films portray flawed convictions of innocent men

See coverage of two new documentary movies about actual innocence cases: At Texas Monthly, Pamela Colloff interviewed documentarian Al Reinert on his new film about Micheal Morton, "An Unreal Dream." (See Grits interview with Colloff on the case from last fall.)

Meanwhile, the Dallas News brings word of a forthcoming documentary about a federal prisoner from Texas who was convicted of murdering a police officer on a North Dakota Indian reservation, a case ably chronicled by Texas Monthly's Michael Hall six years ago, and again last fall in the New York Times, but whose path to exoneration is much tougher because he was convicted in federal court. Wrote Miles Moffeit:

Faulty eyewitness testimony. Lack of physical evidence. Witness coercion. In case after case in state courts, lawyers continue to expose how such problems spawned wrongful convictions, freeing scores of prisoners. The Legislature’s tribute this week to exoneree Michael Morton, as well as lawmakers’ pledges to pursue more legal safeguards for the innocent, are the latest reminders that the state system is evolving.

The fate of Texas prisoner Richard LaFuente, on the other hand, rests in a tougher arena – the federal system. So far, it has barely budged for the 55-year-old inmate serving out a life sentence in the Fort Worth Federal Correctional Institution – despite the classic hallmarks of a questionable conviction, according to LaFuente’s growing advocacy team.

Todd Trotter, a graduate of Southern Methodist University’s film school and a Los Angeles television writer, has been collecting evidence for a documentary he hopes will finally persuade federal officials to free LaFuente. And LaFuente’s lawyer, Julie Ann Jonas, managing attorney of the Innocence Project of Minnesota, told me she is preparing a last-ditch petition for executive clemency in the next month. A federal court has twice ruled that LaFuente of Plainview didn’t receive a fair trial and should be granted a new one; those decisions were later overruled

Though unlike Morton, LaFuente has not been finally cleared, the headline to this item refers to "innocent men" because, based on Hall's reporting, I've little doubt he was framed, just like the other nine men convicted in the episode whose convictions were overturned. Even the victim's mother thinks so. LaFuente's only hope now is a pardon for actual innocence but given the Obama Administration's crappy clemency record, it's hard to see that happening.. The President may have campaigned on "Hope," but his record issuing pardons offers scant little of it for innocent people convicted in the federal system.