Plea bargains sans trials, arsenic and hot prisons, and other stories

On another hot, busy day, here are a few items that merit Grits readers' attention:

Denying jobs for minor offenses
DPS is denying job licenses to applicants for quite-minor offenses, reported Eric Dexheimer (July 3) at the Austin Statesman. He provides several anecdotes suggesting that that "state regulators can zealously apply a law in apparent defiance of common sense."

Prosecutor misconduct alleged in capital case
This headline to a July 4 Houston Chronicle story effectively summed up some remarkable allegations which surfaced this week in Houston: "Prosecutors accused of hiding evidence, inventing testimony in death penalty case: Witnesses say prosecutors coerced them."

Late police officer's chase negligence partly to blame for her death
In an intoxication manslaughter case out of Montgomery County - in which a Patton Village police officer died while chasing a DWI suspect, in an accident that also killed an 11-year old child - DPS investigators determined that the late officer was partly at fault because he "disregarded the red light" and "failed to slow" as he entered an intersection. It's worth mentioning that, last year, we learned high-speed chases are much deadlier than was previously thought. Grits wishes these deaths were tracked as meticulously as the government tracks deaths in custody, and now police shootings.

Arsenic and hot prisons
The combination of heat litigation and the need for arsenic remediation make the Wallace Pack unit 2016's poster child for the ongoing fight over excessive heat in un-airconditioned prisons. See also recent story by Brandi Grissom. As Mother Jones pointed out recently, it's incredibly hard to sue prisons. So the fact the Pack unit litigation has gotten this far means they've overcome some major procedural and evidentiary hurdles. That implies the problems have reached fairly extreme proportions.

Plea bargains sans trials?   
On my short-term to-read list: A new law review article by Penn law prof Stephanos Bibas titled, "Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops."  The premise: American law has largely abandoned "the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes." So, the plea bargaining system must be designed to stand on its own and re-institute some of the protections lost by eliminating trials for most defendants. From the abstract:

Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just."

Federal judge orders Pack Unit to supply un-contaminated water

This news could bump the Pack Unit up on the list of the most likely next TDCJ units the Legislature may consider closing. From the Houston Chronicle (June 21):

A federal judge in Houston has ordered the Texas prison system to provide safe drinking water to inmates at the Pack Unit in Navasota, saying the unit's arsenic-laden well water "violates contemporary standards of decency."

U.S. District Judge Keith Ellison said the Wallace Pack Unit, a low security facility in Grimes County that holds elderly and sick inmates, has 15 days to replace its water supply.

The emergency motion to replace the drinking water was filed by a group of inmates suing the state on the grounds that the lack of air conditioning during the hot summer months is a form of "cruel and unusual punishment."

The Pack Unit houses mostly elderly, ill and disabled inmates who may take medications that make them especially vulnerable to heat-related illness.

The Texas Department of Criminal Justice plans to appeal the ruling, according to a spokesman.

TDCJ before now had refused to pay to extend a water line from the city of Navasota to the Pack unit, preferring to use well water they knew was contaminated because of the lower cost. So good for Judge Ellison. That kind of cynical cost-benefit analysis devaluing inmates' lives and health shouldn't be condoned.

The next cost-benefit judgment: Does it make more financial sense to pay to extend a water line from the city to the prison, or is there sufficient capacity within TDCJ to move those inmates elsewhere and shutter it? And what can be done, one wonders, in 15 days? The judge's ruling stemmed from a subsidiary claim in ongoing litigation over excessive heat in the un-air conditioned unit in Grimes County, just west of Huntsville.

MORE: From the Courthouse News Service.

Water outages, unreasonable court fees, pension and forensic follies, and other stories

In an ongoing effort to clear Grits' browswer tabs, here are a few items which merit readers' attention but may not make it into independent posts:

CCA 'patently unreasonable' in court costs opinion, says appellate justice
Texas First Court of Appeals Justice Terry Jennings issued a strongly worded 22-page concurrence declaring that Jani Maselli Wood was right about court fees, the Texas Court of Criminal Appeals was "patently unreasonable," and the high court should revisit the issue, reported Texas Lawyer. See related Grits coverage of fee litigation by Wood, herself a candidate for CCA judge in the 2014 GOP primary. She was quoted agreeing with the opinion, declaring, "They had to change decades of law to make me lose … The courts should not be revenue centers or tax collectors for the state."

Water outage ends at two TDCJ units
Nearly 2,000 prisoners and 400 staff at two Texas women's prison units, Hobby and Marlin, were without running water from Thanksgiving until Dec. 9, according to news reports. At the Hobby unit, for a while 1,400 people shared 27 portable toilets; 732 people shared 16 portables at the Marlin unit.

New juvie diversion programs starting up
Texas counties will soon begin diverting more juvenile defendants "from problem-plagued remote, state-run lockups into less costly community-based treatment and rehabilitation programs" closer to home which "produce better outcomes," reported Mike Ward at the Houston Chronicle. The plan amounts to "giving counties additional money to take care of youths in community-based treatment and rehabilitation programs instead of sending them to state lockups." Texas has already cut its youth prison population from more than 5,000 to around 1,000 now. But the reductions will be less than were initially advertised: "The state's five juvenile lockups hold just over 1,000 youths, down from more than 5,000 in state custody just seven years ago. The new plan would mean that at least 30 more youths would stay in local programs this year and 150 more next year." At one point, estimates were that hundreds more youth may be diverted, nearly depopulating Texas youth prisons entirely. That's not quite what's happening.

Why Argue? Stop arresting for minor pot possession
Dallas Police Chief David Brown says giving tickets for marijuana possession is "hard to argue with," but frets that people busted for pot might not be as easily coerced into becoming informants, and made some inexplicable noise about Timothy McVeigh. If that's all he's got, he really shouldn't argue. The full Dallas City Council will soon consider the issue. In 2015, how is this not a no-brainer?

Explaining Texas' prison boom and slicing the incarceration pie
Grits doesn't pay enough attention to the Prison Policy Initiative, which always produces useful, interesting work. Check out this post explaining the '90s Texas prison boom and another attempting to delineate the entire "incarceration pie" - i.e., a pie chart showing all forms of incarceration in the U.S. and their relative proportions. Notably, the thesis that more restrictive parole decisions caused the dramatic 5-year boost incarceration rates also works in the other direction. Slightly boosted parole rates primarily explain why Texas' prison population lowered enough in recent years to close three prison units.

Wishful thinking won't solve Dallas pension follies
What happens if pension obligations for Dallas police officers can't be covered by their failing investments?, wonders the Dallas Observer. The money shortfall begins 15 years from now but he budget-hole is so big, they must plan for a solution now.

Accreditation won't solve forensic follies
PBS Frontline had a good story in terms of articulating the scope of the national, indeed global crisis facing many traditional fields of forensic science. But it perhaps oversells the extent to which accreditation will solve the problem. It hasn't in Texas, though along with the Forensic Science Commission it's helped make the problems more transparent.

Summary: 2015 TX juvie and crimjust legislation
See a summary published in November of Texas legislative action on juvenile and criminal justice reform from the UT-Austin Institute for Urban Policy Research and Analysis.

Officials point fingers as Abilene prisons' mid-summer water outages challenge heat-mitigation tactics

A pair of prisons in Abilene have suffered from low water pressure since Wednesday, and TDCJ and local officials are pointing fingers regarding who's to blame. Reported KTXS-TV:

Jason Clark, the director of public information for the Texas Department of Criminal Justice, confirmed water pressure has been low since Wednesday.

Clark said water use is being restricted -- showers and laundry are limited, and water to some buildings is being shut off intermittently.

“When the water is off to those buildings, obviously the persons cannot flush the toilet at that point, but once it comes back on they have the ability to do that,” Clark said. “We're just ensuring we restrict water so we can keep that water pressure up.”

The TDCJ and the city of Abilene are working on the problem. Both say the issue is the other’s responsibility.

“It does not appear at this time that it's [the problem’s] on our property, so they continue to investigate that,” Clark said.

“We suspect there is an issue on their side of the meter,” Rodney Taylor, interim director of water utilities, said. “We really don't have access on that side of the meter to help them resolve the issue.”

Long-time readers may recall that TDCJ is Abilene's largest water user, by far.

This news comes on the heels of a related 5th Circuit ruling. As the Austin Statesman reported, "Wednesday’s appeals court decision said Louisiana prisons could avoid heat-related cruel and unusual punishment by cooling common areas and supplying personal ice containers and ample cold water."

The weather forecast in Abilene predicts highs of 95-99 degrees Fahrenheit over the next few days. How exactly will TDCJ provide ice or cold water if there's not enough water to flush the toilets?

Well water contaminated with arsenic at TDCJ's Wallace Pack unit

The Texas Department of Criminal Justice is seeking a contract to purchase water from the city of Navasota because of "slightly higher than normal levels of arsenic in the Wallace Pack Unit's water," according to the Navasota County Examiner (Sept. 24). But the city turned them down because the agency expected them to pay up front costs to extend a water line outside the city limits to the 1,800 prisoner facility.

How high is "slightly higher than normal"? TDCJ operates two wells at the Wallace Pack unit dubbed #3 and #4 which pump water out of the Jasper aquifer, one of three significant Gulf Coast aquifers. According to this 2009 report (pdf), "The most wide-spread contaminant in produced Gulf Coast groundwater is arsenic, which commonly exceeds the maximum contaminant level (MCL) concentration of 10 μg/L." However, Well 3 "does not have any horizons that are compliant with the arsenic MCL concentration. The well-head sample had 43 μg/L arsenic and concentrations from different depths within the screen ranged from 40 to 43 μg/L," so more than four times the MCL.

Well #4 had lower levels and "is a candidate for possible well modification" so that they only take water from the shallower depths where arsenic levels are less. Apparently, instead of going that route, TDCJ hoped to simply purchase water from another source. Now, it's on to Plan B, whatever that is.

In the meantime, arsenic contamination rates four times the allowable level sounds to me like a bit more serious a problem than "slightly higher than normal," as the Navasota paper described it. 

It's possible that high arsenic levels in the long term could drive up TDCJ health care costs. According to the Natural Resources Defense Council, the National Academy of Sciences found that "arsenic in drinking water causes bladder, lung and skin cancer, and may cause kidney and liver cancer. The study also found that arsenic harms the central and peripheral nervous systems, as well as heart and blood vessels, and causes serious skin problems."

The Wallace Pack unit is in an area southwest of Huntsville with lots of other prison units relatively nearby. I wonder how many others get their drinking water from arsenic-contaminated wells and face similar dilemmas? If readers are aware of other units facing these issues, please let me know in the comments.

See prior, related Grits coverage:

• Prisons as water hogs: Two TDCJ units soak up more water than the city of Amarillo
• Prisons as water hogs: Private facility in Waco would use 2.5 million gallons per month when full 
• State prisons are Abilene's biggest water user

Prisons as water hogs: Two TDCJ units soak up more water than city of Amarillo

TDCJ's Clements and Neal units, reported the Amarillo Globe News ("'An intervention' on water usage in Amarillo," Oct. 14) are together the second largest water customer in Amarillo, soaking up 44% more water than the city of Amarillo itself (395 million gallons and 275 million gallons last year, respectively). Grits has written before about prisons as water hogs. While TDCJ is the second biggest water customer in Amarillo, it's the largest in Abilene. In South Texas, the Connally unit had to begin rationing water and closed two wings because of excessive staffing vacancies and a chronic municipal water shortage.

Prisons' vast water use in mainly rural areas is a largely unexplored aspect of mass incarceration, but one wonders if, in the coming years, Texas' water wars might ever contribute to de-incarceration pressures? As water problems which are today viewed as annoyances become more acute, towns like Amarillo may begin to look at who's using up most of their water and decide whether or not the juice is worth the squeeze.

The newest toy in the box, part two: DPS deploying military-style gunships in Rio Grande

The Texas Department of Public Safety will soon deploy its own mini-navy along the Rio Grande consisting of gunboats armed with automatic weapons, according to KHOU-TV, which reported that:

next month it's about to launch its own fleet of gunboats.

"It sends a message: Don't mess with Texas," said Jose Rodriguez, Texas DPS Regional Commander.

The state is spending almost $3.5 million in tax money for six 34-foot gunboats, each which can operate in as little as two feet of water. The vessels are outfitted with automatic weapons and bulletproof shielding.

The state's first boat is scheduled to be launched next month to operate alongside the Border Patrol.

"One agency cannot do this alone," Rodriguez said.

The gunboats will be looking for suspicious scenes, like another one the DPS helicopter captured in December showing 10 men riding down the river and sitting on bundles of drugs that were no doubt destined for the U.S.

Anytime someone in law enforcement says they're doing something to "send a message," much less in the same breath with the slogan "Don't Mess With Texas," that's a red flag for spending on worthless pork and PR-driven policing. The vast majority of contraband comes in through the checkpoints, not across the river. (According to a recent report by the Texas Border Coalition, "There is a mere 28 percent chance that a smuggler will get caught at the nation’s ports of entry, compared with a 90 percent of being detected between the ports of entry.") So why double down resources on the parts of the border - i.e., the stretches of river between the checkpoints - where smuggling has mostly been successfully restrained?

There's also real potential for creating unnecessary problems, starting the first time somebody fires off those automatic weapons toward the Mexican side of the river.

"Send a message" is code for "just for show." Patrolling the Rio Grande in crafts outfitted like Swift Boats headed up the river in Vietnam won't make anyone any safer or reduce the availability of drugs in the US, but the boat sure looks cool pictured there in the newspaper, doesn't it? And I suppose for the troopers it's more interesting duty than making traffic stops.

Prisons as water hogs: Private facility in Waco would use 2.5 million gallons per month when full

A helpful reader sent me a public notice recently from the Waco Tribune Herald announcing that "The US Department of Justice, Federal Bureau of Prisons (Bureau) is preparing an Environmental Assessment (EA) ... to assess the potential environmental impacts of contracting with a private contractor to house approximately 1,000 federal, low-security, adult male, non-US citizen, criminal aliens at a contractor-owned, contractor operated facility." They're assessing five sites, including two each in Texas and Louisiana: Beattyville, KY; Groesbeck, TX; Jonesboro, LA; Pine Prairie, LA, and Waco, TX, and are soliciting comments dues Feb. 28, 2011.

I'd never seen an Environmental Assessment for a prison, so I asked for a copy and BOP graciously sent me one. I was particularly interested in the Waco site, which is a speculative private prison built with county-backed bonds that's turned into a full-blown (if self-inflicted) financial catastrophe for McLennan County.

One seldom-discussed issue surrounding prisons that's lightly touched upon in the EA is the fact that they're water hogs. In Abilene, Walker County, Anderson County, and several other jurisdictions, for example, prisons are the single largest water users. So I was interested to read that average water use at the Waco unit would be 82 gallons per inmate per day, or 82,000 gallons per day at full capacity or 2.5 million gallons per month. (Groesbeck, TX, by contrast, somewhat inexplicably claims it can serve the same number of inmates using just 10,140 gallons of water per day, which seems strange since all the other applicants would use water at 6-8 times that rate.)

But there's not a lot of extra water to go around in McLennan County. In a story last year, the Waco Trib reported ("Water issues loom large for McLennan County area communities," April 18, 2010, behind paywall) that "McLennan County’s new groundwater district is trying to fight the overpumping and decline of the Trinity Aquifer." At current use levels, they said, "groundwater would still be available, but costly to pump," forcing more jurisdictions to use surface water from Lake Waco, an operation run by the city, which is where the private prison in question gets its water.

Drawing down an extra 2.5 million gallons per month from the river, at the least, would further drain scarce water supplies, even though the EA says "According to the City of Waco, they can accommodate the anticipated water needs of the facility; therefore no impacts to the utility would occur." By contrast, reported the Trib last year, water in Lake Waco is for the most part already bought and paid for: Most observers "doubt there will be much surplus water to spare, if any, once the historical use permits are granted." It's hard to reconcile these assessments: "Water is scarce," "We have plenty of water" - these local government analyses seem almost purely situational, saying whatever they think their audience-of-the-moment wants to hear to achieve this or that short-term goal. In that environment, it's hard to gauge the truth.

The EA says "present [water] facilities are sufficient to provide for this facility," referring to a 6-inch water main connecting it to the city's system. But in the medium to long-term McLennan County projects a shortage of both ground and surface water that the new federal prisoners would clearly exacerbate. I wonder if that sort of analysis figures into the feds' thinking about where to place such facilities, and if not why not?

State prisons are Abilene's biggest water user

This summer's drought elevated water-usage issues to the fore throughout Texas. Given current population growth and the fact that we're already facing shortages, it's not difficult to predict the crisis will only worsen in the next few years.

So I was interested to see this story from the Abilene Reporter News ("Water use likely to rise this year," Sept. 19) indicating that the Department of Criminal Justice is the largest water user in Abilene, with two TDCJ units soaking up 240.7 million gallons last year. "Usage at TDCJ outdistanced Dyess Air Force Base’s nearly 236.7 million gallons, Coca-Cola’s 94 million gallons, Abtex Beverage Corp.’s 67.1 million gallons and Abilene Independent School District’s 66.9 million gallons," according to the Abilene Reporter-News.

This is a bit of a sleeper issue that I'd not considered previously. Spokesman Jason Clark "attributes TDCJ’s high usage in Abilene to the approximately 5,000 offenders — as well as 900 employees — at the two prison units. The Middleton Unit also does all laundry for the Robertson Unit, Clark said." That means these units between them are using a little more than 48,000 gallons per year per inmate.

Abilene residents used 5.7 billion gallons of water last year, and more than one out of every 23 gallons went to TDCJ. With 110 other TDCJ prison units around the state, I'll bet that's not the only place where TDCJ is the biggest community water user. Indeed, it's quite possible that, in aggregate, TDCJ is the largest water user in the state (possibly in competition with the Department of Defense).

Clark told the paper TDCJ is already taking some steps to reduce water use:

Clark said the TDCJ has taken steps to conserve water, including replacing 306 shower heads with “economizer shower heads,” which use 1.5 gallons of water per minute — with some having timers. TDCJ has also wrapped steam line pipes at the facilities with insulation to “help with evaporation and conserve energy as well as reducing the amount of water required when heat isn’t lost,” Clark said.

Clark said TDCJ has an active program statewide to reduce utility costs and the amount of usage and continually encourages all manners of conservation.

I don't know exactly what all TDCJ is doing to reduce utility bills, but this issue isn't going away anytime soon. Keeping the water flowing will likely be a source of increased expense in the coming years. Texas faces a growing water shortage and at root there are two ways to address it: Rationing or pricing. So far, rationing has been the method of choice for most local governments and those restrictions mostly fall on residential customers, not institutional users.

By contrast, large commercial and institutional water users typically get volume discounts compared to residential rates. But if we have too many more repeats of this year's rain shortage, the day will come when rationing is inadequate and utilities begin charging higher prices to their most voluminous customers to enforce conservation goals. And TDCJ appears to be among the most voluminous of all.