Feds tolerated bank robber snitch for decades

Following the lead of Professor Alexandra Natapoff, I've become fascinated in the last year with the way law enforcement's use of confidential informants often amounts to sanctioning crimes as serious as those snitches supposedly help solve. In New Jersey, after indulging his criminal activity for almost three decades, the feds aggressively prosecuted one of their most storied snitches, Michael Guibilo, who was sentenced last week to 25 years in prison. That likely amounts to a life sentence for the 60 year old defendant who is in poor health, but it comes after the feds tolerated a fairly radical criminal career for a very long time. According to NorthJersey.com:

Guibilo [was] a legendary undercover operative who began taping FBI agents because he didn't trust them -- a move that [his attorney] claimed resulted in trumped up charges against Guibilo.

For more than 25 years, Guibilo worked with the FBI, helping them foil an alleged plot to kill Rudolph Giuliani when he was a federal prosecutor and prevent a Paterson housing police officer's murder. But as he built credibility with the FBI, Guibilo developed an equally long rap sheet.

Nearly a dozen times, the Belleville man received light sentences for such crimes as bank robbery and gun possession, while nearly 20 other charges were dropped.

Despite the charges, and despite a judge ordering federal authorities in 1993 to stop using the informant, Guibilo continued to work for the FBI. [Defense lawyer Frank] Arleo said Guibilo's relationship with the FBI cooled in 2003.

Light sentences for "bank robbery" in exchange for snitching? You have to wonder if Guibilo hadn't begun taping his conversations with FBI agents (imagine: he found them untrustworthy) if they would have prosecuted him for these most recent bank robberies, or if they'd have looked the other way the way they had many times before.

One cheer for CJAC ... okay, maybe half a cheer ... alright, a modest grunt of approval

After my previous two items about the recommendations of Texas Governor Rick Perry's Criminal Justice Advisory Council (CJAC), Charles Kuffner emailed to ask me if there was anything I did like about the group's proposals. I'm sure my kibitzing seems odd to folks like Charles who read the glowing media accounts then wondered why I didn't seem so positive on the subject.

Certainly CJAC proposed a handful of positive reforms, but they were small things that will only make a marginal difference, hardly "Reforming Texas justice" as Doc Berman titled his blog post about the report. The big stuff they said should be "studied" more before taking action, even though the Governor's charge was for CJAC to study them and make recommendations. Study, study, study. For those not schooled in the wimp words of public relations and bureaucratese, to "study" such subjects when the answers are obvious means "do nothing, but make the public think you're addressing the problem," which of course is the reason CJAC was created in the first place.

Still, it would be wrong to portray their report as containing nothing positive.

Certainly providing funds to support Texas' four law-school-based innocence projects is a good thing, for example, and I don't want to downplay it. I just wish more emphasis were placed on stopping innocent people from being convicted in the first place. Ideally, we'd reform the front end, too, and in a few years the innocence projects would work themselves out of a job.

I've already discussed how suggestions regarding Texas crime labs would throw money at the problem without addressing the reasons innocent people are convicted. I hope I didn't imply the money isn't needed -- it is. There's a large backlog of cases plugging up the system that will be expensive to resolve. But that's not the same as enacting reforms that would ensure innocent people aren't convicted in the first place. That's what I hoped we'd see from this group that simply wasn't forthcoming.

Similarly, two recommendations suggest giving judges more "discretion" to order DNA tests and to have the state pay for them. That's a good thing, because "A judge right now does not have the discretion to just order a DNA test in the interest of justice, and a judge ought to be able to do that," says Keith Hampton of the Texas Criminal Defense Lawyers Association.

I'm afraid, though, that still won't fix the problem without additional reforms. "In our experience, it's harder to get DNA testing in Texas than in almost any other state in the country with a DNA testing law," said a lawyer with the NYC-based Innocence Project in December. "While it's a well-written law in Texas, many prosecutors fight hard and litigate aggressively, and as a result, little testing happens." Reformers suggested making it more difficult for prosecutors to ask judges to deny DNA tests, which many do as an automatic first step in every case. CJAC did NOT adopt that recommendation, so it's a crap shoot whether giving judges' more discretion will result in more testing. I hope so.

Another recommendation would "Encourage local law enforcement agencies to use in-car audio-video record of all law enforcement contact with citizens at traffic stops and, if possible, fund local jurisdictions which may have insufficient resources for audio-video equipment." That's a positive thought to put out in the world, and I strongly support cameras in police cars both for protection of citizens and officers. But who will pay? Most agencies received funding for such cameras in 2002 as a result of Texas' racial profiling statute (if they have cameras, they don't have to gather the full range of data), but no state funding is available for replacement cameras, upgrades, for for agencies who didnt' get cameras in 2002. Other CJAC recommendations identified funding sources like grants from the Governor's Criminal Justice Division, and that source could fund these cameras, too, but instead the state will simply "encourage" camera use unless, apparently, money for them just falls from the sky.

The recommendation that peace officers receive continuing education on search and seizure laws is an improvement over the status quo - if you can imagine, they currently don't receive such training. But CJAC did not recommend the real reform on the table at the Legislature: requiring officers to obtain written or recorded consent to search at traffic stops when they don't have probable cause. The Governor vetoed that bill but told legislators to study the topic and bring it back in 2007. In that context the proposal for training feels like half a loaf, or really just the crumbs.

Which brings us to the proposals for further "study." These are the most substantive reforms discussed by CJAC, and in the end they didn't advocate implementing any of them but pretended they need to be "studied" more. That's utterly disingenuous, IMO -- in each case the topics have been studied to death and everyone pretty much knows what the best practices should be. In that context, to advocate further study amounts to opposition, not advocacy for the proposals. Proposals receiving this backhanded compliment were the most important ones discussed by CJAC:

1. Providing state funding for a public defenders office .

2. Increasing the compensation of individuals who are wrongfully convicted.

3. Adopting established best practices to reduce eyewitness misidentification.

4. Videotaping the interrogation and confession of suspects in major crimes.

Now THOSE would be important changes to recommend, but CJAC didn't recommend them. (Indeed, CJAC is largely made up of representatives of special interests who opposed those reforms in the past.) By saying we should study them, though, CJAC gets to pretend it's interested in reforms to protect innocent defendants without actually advocating them.

I hope I'm wrong about that. I've been at this a while and maybe I'm too cynical. But it sure seems like I've seen this song and dance routine before.

Improper access to Texas criminal records common, unchecked

Here's a new report (pdf) from the state auditor on the Texas Criminal Justice Information System, and the media summary. Of entities using the system's web interface to access criminal records from the Texas Department of Public Safety, 26 percent had unauthorized users registered, typically employees who no longer worked for the entity but retained their passcodes and access. Also, many improperly shared usernames and passwords among employees. In the management response, DPS declared that:

We have recognized that the ever increasing use of the criminal history data for licensing, employment, volunteerism, and other “non-criminal justice” purposes naturally creates a corresponding responsibility for controls over those entities. Our limited resources have prevented an adequate response to this rising need.

With one out of 20 Texans in prison, on probation or parole, this improper access opens up that information about an awful lot of people. What's more, regular readers know I think Texas restricts way too many jobs based on criminal history. Every time more employers are granted access to these records for purposes of employment screening, we reduce the chance that people who've been in trouble with the law in the past can find good jobs and make a life for themselves. So expanding access to the system harms prospects for employing ex-cons as well as risking the information being used inappropriately. Obviously state law requires DPS to share this information with a lot more folks than the agency can adequately manage.

The probation tracking system at the Texas Department of Crimnal Justice has improved, the report declared. Eleven percent of probationers' records were incorrectly tracked, compared to 46 percent when the system was last checked in 2001. That said, "improvement" is relative. With more than 605,000 probationers' flagged, according to the report, an 11 percent error rate would mean errors exist in records for more than 66,500 people.

Who are Texas' worst judges?

The Texas Observer's Nate Blakeslee tries to sort it out - he's picked some good candidates, but how does no Court of Criminal Appeals justice make it on the list? Texas Monthly in 2004 rightfully, IMO, named the CCA Texas' Worst Court.

CJAC: Pork Not Probity for Texas Crime Labs

Yesterday I said that Governor Rick Perry's Criminal Justice Advisory Council (CJAC) "suggested only pork barrel solutions to the state's problems." (See their press release here and the full report here [Word doc]). Their proposals to increase funding for Texas crime labs provide a good example of throwing money at a problem without solving it. CJAC's Forensics Committee recommended:

• A $10,000 pay increase for 170 scientists "to ensure job stability")
• New replacement crime lab facilities in McAllen, Corpus Christi and Abilene
• Expanded crime lab facilities in El Paso, Lubbock, Tyler and Austin
• An additional $1.4 - $2 million per year for equipment, operating funds and DNA kits and supplies.
• Additional forensic scientists (22 in '08, 14 in '09) to staff the new labs.

So this bunch would add nearly $11 million per biennium to the Texas Department of Public Safety's budget for crime labs by 2009, plus fork over many millions more to build or expand seven different labs around the state -- all that and the "solution" ignores the cause of the problem they're aiming to fix: innocent people convicted by faulty forensic science.

Why throw that much more money at Texas DPS? They're the ones (along with the Houston PD crime lab) whose errant analyses already convicted innocent people or allowed the guilty to escape justice. So why reward them with a bigger budget and more responsibility? The DPS crime lab in McAllen had to be closed down because of grave problems with their DNA testing division, and the one in Lubbock gave faulty evidence that sent Brandon Moon, who was innocent, to prison for 18 years for a rape he didn't commit. There's just no reason to believe giving those same scientists $10,000 raises is going to solve the problem.

DPS crime labs face a significant backlog of cases that's slowing the system down, so there's no doubt more money is needed to process cases faster. But that won't solve the problem of scientists signing off on faulty forensic analysis that convicts innocent people. In fact, none of these budget boosting recommendations confront the reasons why that occurs.

As I've argued before, the real problem causing Texas' forensic foulups stems from the state's failure to pay for defense experts to perform independent analysis on behalf of indigent clients. So when DPS impugns a suspect, even when they've accused an innocent person, there's just no means for indigent defendants to refute the faulty results. Too often, as I wrote last year, accuracy is optional in forensic science because:

Forensic science isn't "objective" science, it's goal oriented. Police scientists tend to find the answers prosecutors want because, as a Dallas scientist testified to the Senate Criminal Justice Committee in Houston, it's prosecutors who tell the scientists what avenues of inquiry are "probative" -- in other words, prosecutors tell the scientists what questions to ask, not defense attorneys. If defense counsel want to ask their own scientific questions - for example, to perform tests that might exclude the defendant as a suspect - the defendant must pay for outside lab testing, or convince a reluctant judge to release the funds.

Forensic science is contextual, not neutral, and outside the classroom it's always employed with a purpose. In court, innocent people get roped in by bad science largely because the purpose of the science is to convict, not to exonerate.

It's not as though authorities aren't fully aware that's the problem. Two years ago the House Research Organization issued a report (pdf) that offered more substantive proposals that might actually help innocent clients falsely accused by DPS forensic scientists. I described some of their recommendations in this Grits post:

the state should spend more money for defendants, many of whom are indigent, to pay for lab work and scientific investigations to refute shoddy state crime lab work. In other words, let the adversarial system flesh out the truth. What a novel concept. Of all the proposals cited by HRO, that's the one most likely to force the system to right itself.

Another proposal: expanding defendants' discovery access to information about crime lab tests, allowing defendants to obtain labs' error rates through discovery and making the information admissible during trial. That might almost finish some of these labs.

Finally HRO noted that crime scene investigators and crime lab workers don't have any particular, special training, and suggested some sort of formal accreditation process for those often-civilian workers.

None of those suggestons made it into CJAC's recommendations - in fact, rather than paying to train crime lab workers, CJAC proposed no new training and fat raises.

Is there any wonder why these problems haven't been solved yet?

Abbott sues broker over disclosing consumers' cell phone records

I know Rep. Pena will be glad to learn that Attorney General Greg Abbott filed suit yesterday against an online broker for selling consumers' private cell phone records. This should set the table nicely for Pena's legislation he's preparing on the subject. According to the AG's website:

The lawsuit alleges that for $125, the company will obtain a person’s phone record history, including the number of calls made and received, the duration of calls, dates and times, and other private information. ...

The Attorney General’s investigation revealed that USA Skiptrace does not follow legal protocols such as subpoenas in obtaining these records, nor do consumers whose information is being requested receive notification of the activity. In fact, [owner John] Strange boasts in his email correspondence that “we never contact the owners of phone numbers searched” and that the “owner has no way of knowing about the search or who ordered it.”

This appears to be a civil suit, not a criminal prosecution.

Via Fergie's Tech Blog.

Attorney for innocent convict gets media props

The Houston Chronicle today published a nice write up of attorney Eric Davis, the lawyer who got a wrongfully convicted defendant named Arthur Mumphrey out of prison last month. (The case was discussed by Grits here.) Congrats to Mr. Davis on the coverage, and on a job well done.

Governor's Advisory Council Ignores Big Problems to Focus on Pork

Upon examining the recommendations to Governor Rick Perry from his Criminal Justice Advisory Council appointed last year, I find I can take credit up front for the following prognostication made in October after attending one of their meetings:

All the parties ... were there with their hands out. The unions wanted money for training, the chiefs wanted grants for in-car cameras, DA [Barry] Macha wanted centralized crime-scene analysis -- so the special interests only could identify problems that could be solved by giving THEM more money. ...

When Governor Perry first appointed this panel, I suggested he was "passing the buck." Now it's clear who he was passing it to: the same special interests who created this mess in the first place.

I couldn't have called the result more precisely. The Governor's criminal justice advisors essentially suggested only pork barrel solutions to the state's problems, and ignored the bigger issues that require fiscal restraint to solve instead of more, more, ever more spending. (But the Governor says he wants new property tax cuts, right?!)

Texas' criminal justice system faces an overincarceration crisis that this group completely ignored, which to be fair is how the Governor has dealt with the problem, too - Texas' prisons are full to the brim, our probation and parole systems are broken and dysfunctional, and the state hasn't budgeted enough to pay for incarcerating those already in the system. Nothing in CJAC's recommendations addressed that central institutional crisis. Why not? You'd have to ask the Council, or the Governor, or maybe Mary Ann Wiley who advises him on these topics. The disconnect, to me, begs explanation.

So who is advising the Governor on the state's most important criminal justice questions? Whoever it is, it's not the Criminal Justice Advisory Council, which appears focused more on pork than process.

Where CJAC's recommendations address real crises, the solutions proposed were to throw money at institutional players represented on the council itself, but in most cases wouldn't resolve the problems even if fully implemented. By my estimate, CJAC proposed somewhere between $25-$30+ milllion in new spending (including major capital expenditure to pay for new or expanded DNA labs) over the next biennial budget cycle, and proposed new life sentences for sex offenders that would cost many millions more in the out years.

By contrast, where CJAC studied substantive questions like the need for a state-funded public defender system or reforms to eyewitness procedures, they recommended, well, more study. How many more innocent people must be convicted before Texas decides to quit "studying" problems we've been studying for years and begins to enact real reforms? This report does not tell us. There's really no way to know. We'll have to study it some more and get back to you.

Next up: Analyzing CJAC's recommendations on crime labs.

From Hearne to Ruby Ridge to international spying, snitches too often accuse innocents

Those interested in the subject of confidential informants or "snitches" will want to read Charley Reese's column entitled "Government Informants," published February 4 on LewRockwell.com. I've written a lot about problems with snitches in everyday criminal law enforcement, particularly in drug cases like the Hearne debacle in Texas, but Reese makes the point that the same problems that show up there plague informant use by intelligence agencies. A taste:

One point many people often don't understand is that CIA officers are not spies. They are "case officers." Their job is to recruit spies (informants) and funnel the information back to the analysts.

Naturally, every country tries to depict its spies as noble people opposed to tyranny rather than people trapped and blackmailed, soreheads and neurotics or simply greedy opportunists. Often, informants working for money in domestic criminal cases will actually entrap some innocent person. That's how the sorry episode of Randy Weaver began, which ended with the deaths of his wife, his son and a deputy U.S. marshal in 1992.

A paid informant badgered Weaver, who was hard up for money to feed his family, into illegally sawing off a shotgun, something any 8-year-old with a hacksaw and a vice can do. The idea was to arrest him, threaten him with a long prison sentence and then coerce him into becoming a federal informant. It was a federal cluster you-know-what from start to finish.

This is a short preface to the current problem of domestic spying. The Bush administration says it only intercepts calls from terrorists. OK, how does the Bush administration know that somebody in Europe or the Middle East is a terrorist? Terrorists don't walk around the street with little name tags identifying them and their organization. They don't call people and say: "Hi, al-Qaida calling. Can I interest you in a bomb-making kit?"

The answer is an informant or some other country's intelligence agency. The first thing you know is that this person is a terrorist suspect. If anyone had proof that he was a real terrorist, he would be arrested. You can get some idea of how unreliable these suspect lists are by the instances of pop stars, U.S. senators, babies and other innocent people winding up on the U.S. terrorist watch list because of bureaucratic goof-ups.

See the rest here. Most people trust law enforcement, just like most people trust our national security apparatus. But do we trust all their snitches? Hardly. Reese's point - that trusting agents and their snitches becomes synonymous, in practice - rarely surfaces in the public debate at the local or international level. It explains a lot of the worst abuses, though, from petty drug cases to Randy Weaver on up.

TX Governor's Criminal Justice Advisory Council Report Released

The biggest news: A recommendation to "study the feasibility of establishing a state funded public defender office."

The press release is here and the full report is here (Word doc). I'll take a closer look and blog about its contents, hopefully, later this week.

UPDATE: See initial coverage from the Houston Chronicle, the Associated Press and the San Antonio Express News.

'Reality of task force's closure beginning to set in for officials'

Reports the Lufkin Daily News:

"Up until this point, we have been trying to salvage our task force operations," Nacogdoches County Sheriff Thomas Kerss said. "We've been lobbying to keep it going, but now it doesn't look like that will be a possibility."

If this news is any indication, by March Texas' Tulia-style drug task forces may all be gone for good. See Grits' prior drug task force coverage.

Via TDCAA.

Screwing prison guards out of overtime short-sighted

One out of four Texas prison guards will quit their jobs this year, and I understand why. Pay sucks, especially compared to street cops, and they work longer hours in a depressing, overcrowded, dangerous environment. It's frankly hard to imagine who would want to be a prison guard in Texas if they could possibly find other work.

Adding insult to inury, now Texas has quit paying most guards overtime according to an item by Mike Ward in the Austin Statesman I meant to post about a couple of weeks ago ("Prison workers overtime held back," Jan. 15). That's unbelievably short-sighted - a recipe for driving away your employees in droves. Reported Ward:

"It's one more reason to find another job, and a lot of people are doing that," explained Arlan Foster, 53, an eight-year veteran correctional officer and union leader at the Plane State Jail outside Dayton, east of Houston. "Making people work overtime and then not paying them is not a good way to keep good people, even if the law allows that." ...

Texas' prison system, the second-largest in the United States, has approximately 23,500 correctional officers. At the end of November, it needed another 2,700 to be fully staffed.

At the prisons, the vacancies mean that guards must cover more than one gate, that convicts don't get to use recreation yards, that two officers are assigned to housing units instead of three, that some "pickets" — guard towers — might temporarily go unstaffed.

"That means people have to do more on their shift, cover more inmates, do more," Foster said. "We used to work eight-hour shifts. Now we're working 12-hour shifts, four days on and four days off. If you've ever worked 12-hour shifts in this environment, you know how tiring that schedule is. All you do is work, go home and sleep (and) come back to work.

"Fatigue definitely becomes a factor."

Between 500 and 600 correctional officers quit each month. That necessitates increased recruiting and training programs that, officials concede, at best just keep pace with turnover, which was 23 percent in 2005. But working in a prison is a high-stress job, they quickly add, and the Texas Youth Commission, the only other agency with correctional staffs, had a turnover rate of 32 percent last year.

"We're doing better (on retention and recruiting) than we were," Johnson said. "We hire every two weeks now. . . . We've added six more recruiters. Staffing over the past four months has improved."

Still, the view among correctional staff members is that the working environment at prisons has gotten progressively worse during the past two years: The number of vacant jobs has increased, wardens have extended shifts to stretch staffing, and guards at some prisons are not allowed to go home after their shifts end because the incoming shift has too many vacant positions.

Blame the Governor, in part, for vetoing legislation that could have reduced prison overcrowding, and the Legislature for not adequately budgeting guards' pay.

But in the big picture the situation had grown untenable well before they made those bad decisions last year. Our prisons are jam packed and there's no money to build more or even adequately staff the ones we've got. Most Texas prisoners committed nonviolent offenses to get there, but sentences are so long that often violent offenders must be released to make room. Texas needs to set priorities, to better distinguish which offenders really need to be incarcerated and which ones could be supervised through stronger probation or other alternatives to incarceration. As retiring state Rep. Ray Allen says, we need to better distinguish between those we're afraid of, and those we're only mad at.

We'd better start soon, while Texas can still find enough people willing to take these crappy jobs. Once we can't, then what will we do?

More on ACLU, guns and 'traveling' in Texas

(Cross-posted from ACLU of Texas' Liberty Blog.)

Roddy Stinson of the San Antonio Express News had a column Sunday ("State's new gun-toting law has surprise backer: ACLU," Feb. 5) remarking on ACLU of Texas' support for a new law presuming drivers are "traveling" and therefore legally carrying a gun in their car if they are (1) in a private motor vehicle, (2) not engaged in criminal activity, (3) not prohibited by law from possessing a firearm, (4) not a member of a "criminal street gang" and (5) not carrying the handgun "in plain view." Wrote Stinson:

Somebody check the weather in Hades. Snowflakes must be falling on Beelzebub's head.

Whether this conservative turn is an ACLU aberration or a step in the right-wing direction won't be known for a while. But news of the organization's loose-gun-control stance will surely cause a few spluttering Sunday morning readers to lose their coffee.

If you say so, Roddy. I should mention up front that the Texas State Rifle Association and the National Rifle Association were the real powers behind this legislation. ACLU of Texas supported the bill, but those groups did all the heavy lifting and deserve the lion's share of credit. That said, I was proud of ACLU of Texas for supporting the legislation -- to me it shows the group is about protecting everybody's rights, not just liberals or conservatives.

Stinson seemed surprised I'd think that legislators wanted people to be able to carry weapons even when they were going short distances, not just on the "open road." But as I also told him, I based that on legislators' comments at the public hearing in the House of Representatives in support of the bill, not just on my own say-so.

Without interpreting the law as including shorter trips, it would be legal to own a gun in your home, legal to possess it at a gun range, but illegal to carry it in your car from your home to the gun range. That's just an irrational conundrum, penalizing law abiding gun owners simply for carrying legal property in their car.

That's what legislators were trying to fix, as far as I could tell, and it's certainly why ACLU of Texas supported this statute. The new law rationalizes gun owners rights while giving law enforcement plenty of tools to arrest someone who legally shouldn't be carrying a gun. I'm glad ACLU of Texas supported it.

Nobody knows how the courts will interpret the new law, but the legislative intent on this bill isn't hard to discover. Here's an account of that hearing I wrote afterward on Grits for Breakfast:

Testifying on behalf of ACLU of Texas at a meeting of the Texas House Criminal Jurisprudence Committee, I spoke in favor of HB 823 by Keel, which I discussed [earlier], allowing Texas drivers to carry a firearm in their vehicle. The National Rifle Association was there in force behind it. Like Sputnik from the Motorcycle Rights Association, though, I complained about a change in the committee substitute that defined "traveling" as only occurring when a driver "crosses or intends to cross a county line."

Such language would invite drivers to lie to police officers, I told the committee, since the only defense to carrying a gun in one's car would be to say you're preparing to travel to the next county. Rep. Debbie Riddle surprised us both, I'd guess, by agreeing with me, declaring that she lived four minutes from the Harris County line north of her home, but didn't feel the need to carry a firearm traveling into Montgomery County. By contrast, she could travel for two hours south through Houston, depending on traffic, without reaching a county line, and she felt more like she needed personal protection for that trip.

I argued that current law encouraged unnecessary and unproductive vehicle searches because police officers considered even legal guns contraband. If guns were legal to own they should be legal to transport, and gun owners shouldn't be harassed. The current statute is an example of what Michael Quinn Sullivan of the Texas Public Policy Foundation has called the "criminalization of civil life," I told them. Public safety isn't the issue. If I were packing a gun in the committee meeting that evening, I said, the committeemembers wouldn't be one bit less safe because I don't want to shoot anybody. Similarly, police wouldn't be less safe because law abiding gun owners don't pose a risk, and they're already in jeopardy from the bad guys.

Chairman Terry Keel, R-Austin, the bill sponsor, said the definition of "traveling" for the purpose of carrying a firearm in your vehicle had been debated for years but never adequately resolved, and asked how I would solve it. I suggested deleting the county line nonsense, simply defining "traveling" as when someone is in a private motor vehicle, is not "otherwise engaged in criminal activity," and is "otherwise entitled or eligible to possess a firearm" - language that was already in his bill. In essence, that means that if you legally own a gun and don't intend to use it to commit a crime, you could legally transport it wherever you want in your car. After conferring a moment with his colleagues, Keel announced he would accept ACLU's suggestion. I replied that he should take it and run with it.

Here's the link to the video from the hearing (the bill starts at 9:55 p.m.). See for yourself if you think I'm accurately interpreting what legislators intended. I just don't know how else one could view Rep. Riddle's comments declaring she wanted to be able to carry protection driving from the suburbs into Houston.

Texas senators added the part about the gun not being in plain view because they worried about incidents where someone might be in a drive-through at a fast food venue or a bank where the gun could be mistaken as serving some nefarious purpose. I doubt such mundane considerations would have come into play if they meant that guns in vehicles should only be legal on "the open road."

For more on Texas ACLU's efforts to monitor implementation of this law, see this earlier Liberty Blog post.

More on reducing dangerous high-speed police chases

Following up on an earlier Grits post, here's a neat technological idea that would dramatically reduce the number of dangerous and unnecessary high speed chases by police - "an air-propelled miniature dart equipped with a global positioning device. Once fired from a patrol car, it sticks to a fleeing motorist's vehicle and emits a radio signal to police." Via CrimProf Blog and Boing Boing.

I wish the truth would hurry up and tie its shoes

Tell a lie often enough, maybe even get a few hack politicians to repeat the mantra along with you, and the media will report it even when they know it's false. That's the big lesson from the "debate" in Texas over border security. Most recently we find this AP story quoting a deputy sheriff spreading misinformation about the terrorist threat at the border:

A Texas sheriff's deputy warned U.S. legislators drug-traffickers are helping terrorists with possible al-Qaida ties cross the porous Texas-Mexico border into the United States.

Terry Simons, chief deputy in Val Verde County, Texas, offered little evidence publicly of his claims. An FBI special agent in Houston, Shauna Dunlap, said there's "no credible evidence" that supports the warning.

Simons, part of a group that has been pushing state and U.S. officials for more law-enforcement funding on the border, told congressmen meeting in Houston that Texas authorities have learned of newly established camps in Mexico, where so-called "narco-terrorists" are being trained in "escape and evasion, as well as fighting techniques and combat manoeuvring."

Simons also said the FBI has informed the border sheriffs suspects with Islamic backgrounds - and possibly al-Qaida ties - are training with them.

Simons and other members of the Texas Border Sheriffs Coalition outlined the threat in a presentation to U.S. Representative John Culberson, a Republican from Texas, and Representative James Sensenbrenner, a Wisconsin Republican.

"We need more boots on the ground," Simons said.

"The thing we're facing, it's a war."

Is it really? Or is Deputy Simons just full of crap? Over and over headlines trumpet false claims of Al Qaeda crossing into Texas, while further down in the story (or in future, less well publicized retractions) we're told it's just not true.

I understand why special interests looking to boost their pork barrel funding would spread lies and manufacture threats to justify increased budgets - anybody who's been around government much sees that kind of behavior from bureaucrats at every level. What I don't understand is why the media go ahead and report it after they fact check the story by going to the source - in this case the FBI - and discover it's not true. To me, once the reporter checked with the FBI, which was the deputy's only source, and found out the fellow's claims had no factual basis, the story should have been killed by AP's editors because it's not news. Not real news, anyway.

AP should leave the fake news to Jon Stewart.

Even police officers on the border - at least the ones who don't have their lips firmly attached to the money teat - think the dangers are being overhyped. The San Antonio Express News reported recently on how the $6 million Texas Governor Rick Perry devoted to the much-ballyhooed Operation Linebacker is being spent, and discovered that many cops on the Texas-Mexico border think threats are being overstated:

Although sheriffs embrace the funds, there are back-room rumblings from border police departments and even from within some sheriff's offices that Operation Linebacker is a golden goose for underfunded departments more than it is a border security plan. ...

"The situation isn't as bad as they're saying. They're using the danger in Mexico to their advantage to fund their departments," said one border city police officer, referring to ongoing drug war violence on the border.

"In the process, they're scaring everyone," said the officer, who asked that his name and department not be used to avoid a breakdown in cooperation with the sheriffs.

Jay Johnson, owner of a Del Rio bed-and-breakfast who dedicates himself to border tourism, said the sheriffs did well to receive the funding, but that they overstated the threat from Mexico.

"I know the sheriff and respect the sheriff, but I believe certain comments paint a picture that's quite unfair when it comes to our sister city of Acuña, even if it does bolster his argument for funds," he said.

Scared people will pay for protection, so baselessly hyping fear will probably get border sheriffs the pork barrel funding they're looking for in the short term. But let's not kid ourselves that anybody's safer as a result. The Canadian border is easily a bigger threat for terrorists to enter the country. In that sense, it's hard not to see fabricated claims of terrorists crossing from Mexico as anything but nativist xenophobia - a disgraceful diversion from more significant security concerns that likely makes us less safe.

Earlier I quoted Mark Twain who opined that a lie can travel halfway around the world before the truth can tie its shoes - I wish the truth would hurry and get those suckers laced up!

Logorrheic law profs on punishment law and policy

I attended this morning a symposium on "Punishment Law and Policy" sponsored by the Texas Law Review, specifically a panel on the subject of "Modern Crime Control Mechanisms" featuring Yale academics Dan Kahan and Donald Braman, and Jonathon Simons from UC Berkeley. It was interesting enough, I suppose, but as one audience member leaned over and said to me during Kahan's presentation, "logorrhea" was perhaps the defining characteristic of the event. Smart as they were, none of these fellows knew how to use four words to describe a concept that they could confuse using forty.

Still, the ideas discussed were useful, so I'll try to translate the highlights into more people-friendly prose.

Kahan presented on the subject of shaming sanctions, recanting his advocacy of them over the last decade after enduring withering criticism from liberals in the academy. Kahan first supported shaming sanctions, he said, because he thought the system needed more alternatives to incarceration. He'd considered shaming punishments viable because they convey the public's disapprobation of crime without the high social costs involved with incarceration. Fair enough. He'd backed off that position, he said, because those with "egalitarian" or "individualist" philosophies disapproved of them, including numerous people he respected.

If those advocating incarceration alternatives, he said, didn't support shaming sanctions (and obviously the tough on crime crowd prefers incarceration over any alternative), then maybe it was time to look for a different approach. Kahan came to believe the problem stemmed from differences in "cultural cognition," which is a high-falutin' way of saying that people's values inform their political positions in different ways. Well, duh! Welcome to politics, Mr. Kahan!

Kahan's past endorsement of shaming was essentially a political ploy, to hear him tell it -- an effort to come up with punishments besides incarceration that could be politically sold to the right wing. In doing so, though, he said shaming proposals ignored the values of liberals and thus didn't provide a stable platform for reform. By contrast, prison's meaning is more ambiguous, allowing people of different political stripes to find ways to support it for different reasons -- some because it's punitive, some because it's (theoretically) rehabilitative, some because it incapacitates the offenders, and some because it humiliates or shames them.

Kahan argued that alternatives to incarceration need to express condemnation more ambiguously than shaming, allowing people with different values to simultaneously tell different stories about what the punishment means in ways that affirm their own values. I thought that was a pretty good point. It's not simple to craft proposals with appeal across value systems, but when it can be done it's the best way to push reform in the political arena.

Concepts of "restorative justice," Kahan said, more readily fit the bill. They're seen as less punitive by liberals, but many conservatives see them as another brand of shaming aimed at placating the victim, whose moral authority in the equation they see as definitive.

(Doc Berman, BTW, has written extensively on the subject of shaming, including a number of excellent posts linked here.)

Donald Braman's presentation discussed his research into what people in poor communities want from punishment, as opposed, he said, to what liberal or conservative politicos think. He said poor folks wanted punishments to focus on helping offenders better contribute to society and reducing the collateral consequences of punishment. Instead of focusing on criminals' rights, he said, poor folks want to force offenders into more beneficial behaviors, especially drug treatment, job training, and literacy programs. These approaches, Braman said,

• Reinforce "pro-social norms" while incarceration erodes them,
• Protect pro-social relationships, especially family and employment relationships, and
• Are perceived by the community as just and fair.

Braman said in public opinion surveys 90% of the public supports these types of punishments as alternatives to incarceration, and that the level of support varies very little across political philosophies or partisan affiliation.

His most concrete proposal, though, struck me as one of those ivory tower moments that make you wish law professors made it into the courtroom more often. He thought that prior to sentencing, jurors should be polled to determine what they thought would be the most just, effective sentence, then that information should be aggregated through sentencing commissions to generate recommendations for new incarceration alternatives. The big problem: Virtually no criminal cases any more ever go to a jury. In Texas, e.g., 99+% of all cases today are resolved through plea bargains.

Jonathon Simons' presentation argued that Americans' view of punishment, even in its most punitive forms, stemmed from a "positivist" view, or a desire to protect society, to "keep them away from us," rather than an overarching desire to punish. In recent decades, he said, a "neoclassical" view of crime emerged which considers crminality essentially in market terms -- raising the "cost" of crime by increasing the penalty should cause it to go down. Now, he said, elite opinion was heading back toward a "neopositivist" view.

Beginning with this framework, he delved into the obscure work of Italian criminologist, Cesare Lombroso, who pioneered the "positivist" approach to criminology in the late 19th century. Virtually all of Lombroso's findings have been debunked, he pointed out, and many were facile, foolish or overtly racist. But Simons argued that Lombroso left behind a three-part legacy:

• Criminality is defined not by its relation to the law but by its relation to normality - the perception of criminals as definably, measurably different from the rest of us, he said, can be traced to Lombroso.
• Criminology is the most "political" of the social sciences. (Simons said criminology is so politicized that it sometimes is confused as being "apolitical" because the politics are so infused in the fabric of its study.)
• The object of criminology is construction of the nation, to overcome regional and social difference to embrace what's common among us.

I have to say, though I was interested in his historical diversions about Lombroso, I thought Simons' analysis too facile to be very useful. I think most folks have mixed feelings about crime and punishment, rooted in lots of different cultural values and sources that intermingle and sometimes contradict one another. The theoretical labels, in the context of such a complex cultural melange, just don't help all that much. In that sense, I found Kahan's advocacy of ambiguity in one's philosophical approach a better fit for the political arena. What's really needed isn't to identify and label the dominant philosophies of the day, but to craft proposals with which various philosophical approaches can all be comfortable.

Now if we can just get these fellows to all read George Orwell's essay on Politics and the English Language, and implement his suggestions, all the brainpower in that room might actually be of use to somebody out in the world.

More counties grumbling at backlog of incompetent defendants in Texas jails

Following up on a story first covered on Grits a couple of weeks ago, there are more complaints in the press about defendants who've been declared mentally incompetent languishing in Texas jails waiting for state hospital beds to open up. Every time this gets covered we learn a little more about the problem. Reports the Waco Herald Tribune ("New state policy limiting criminal psychiatric beds has local officials upset," Feb. 3):

The majority of criminal commitments are for people who have been found incompetent to stand trial. That means they don't understand the charges against them and cannot aid in their defense.

On average, such competency patients are hospitalized for 85 days, officials say. But some stay longer.

The rest of the forensic population is even slower to treat. They are people who have been found not guilty by reason of insanity, and their treatment often lasts for years, if not their lifetime.

[Barbara] Tate, the head of the local MHMR, estimated that it will now take several months to move someone from a local jail to a state hospital. In the past, the process usually only took a few days, she said. ...

“We should not be holding these people because this is not a place (designed) to do that,” [McLennan County Sheriff Larry] Lynch said. “It's kind of scary. We are not trained to do this ... but they keep forcing it on us.”

If the Sheriff is scared, imagine how the inmates must feel. Local officials are also increasingly fearful of growing costs. According to the San Antonio Express News ("New state rule adds to Bexar jail burden," Feb. 2), in addition to treatment costs in the jail, when space finally opens up counties must now fork over travel expenses to transfer incompetent inmates to faraway locales because hospitals near the big cities are full up.

The county will have to take such inmates to Kerrville if beds are available. If not, they'll have to go as far as El Paso, Vernon, Rusk or Big Spring.

That means shelling out up to $1,000 per overnight trip with two deputies, said Deputy Chief Dennis McKnight.

Bexar County deputies took forensic patients to San Antonio State Hospital 190 times last year, McKnight said.

"If we do 190 next year" to the four more distant hospitals, "that's $190,000 that's getting dumped on the taxpayers all of a sudden," he said.

That's in addition to treatment costs for those waiting in the jail to be transferred. What's more, even when they are transferred, reported the Express News, the new arrangement will mean they get less appropriate care than health professionals prefer, because new doctors must get up to speed on each case. Some mental health professionals say it was better for public safety when more of the severely mentally ill were permanently institutionalized:

If the patients caught in the current revolving-door system of state mental health care go to a new hospital each time, they'll be strangers, making treatment harder, said Dr. John Sparks, medical director of detention health care services

And their commitment begins on the day of the judge's ruling — so if it does take longer to get them to treatment, it's that much less time they have to get better before their next hearing before Carruthers. New hearings mean more costly trips, McKnight noted, although he hopes the county can buy video conferencing to cut that cost.

To Garcia, it's just part of a decades-long erosion of state care for the mentally ill that leaves them no home but jail.

"A lot of these chronic schizophrenics, they were living at the state hospital with room and board, smoking cigarettes. They never got into trouble," he said.

I'm not sure I support permanent institutionalization of the mentally ill -- with new generation medications and proper support, in theory most should be able to function outside hospitals or prisons. But since Texas' de-institutionalized these folks many years ago, dumping them in the streets, basically, with no means to support themselves or maintain their treatment regimens, now the only means for getting them help is through the criminal justice system. That's an unmitigated tragedy.

The Waco paper offered up a fine editorial on the topic ("Fiscal Psychosis," Feb. 3), demanding that Texas' Legislative Budget Board step up and find emergency funds needed to fix the problem. Their commentary, I thought, hit the nail on the head:

This is not just an issue about the handling of one segment of our mentally ill population. It's about Texas' general unwillingness to meet the needs of the mentally ill.

Mental health advocates say the problem goes beyond psychiatric hospitals per se to community mental health services in general, where Texas ranks 47th in per capita spending.

“When individuals with mental illnesses get mental health treatment in their communities, they are less likely to deteriorate and end up involved with the criminal justice system,” said Lynn Lasky Clark of the Mental Health Association in Texas.

Clark said law enforcement officers sometimes drive mental health patients across the state for hospitalization because of a lack of local mental health services.

Texas should put more of its faith and its resources into mental health services that can treat people and keep them out of jail.

But when they land in jail and a judge says that's not the place for them, they shouldn't be there.

Damn straight. This issue seems to be picking up steam, doesn't it? I don't know that the Legislative Budget Board has the authority or more importantly the ready cash to fix the problem, but if Texas makes it through another special session without ponying up more money, the state probably risks civil rights litigation on behalf of these inmates, whose rights have already been stripped from them by a judge.

UPDATE: More from the McAllen Monitor

See prior Grits coverage of this topic:

• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent inmates' care
• Blog Activism: How it's supposed to work
• Meth use may be boosting criminal commitments to psych hospitals

Burglar alarm subsidies harm taxpayers, public safety

Maybe another reason police are solving fewer violent crimes than ever before is that they're spending so much time chasing down false burglar alarms. Dallas PD has decided to stop responding to commercial burglar alarms until alarm companies verify a crime was committed at the business. Dallas police say 97% of such calls are false alarms. In other cities, the false alarm rate tops 99%. Even when a crime has been committed, it's extremely rare for police to find a burglar still on the premises when they arrive. Such "verified response" policies save police departments in other jurisdictions huge sums, and free up officer resource to pursue actual criminals.

Alarm companies profits stem from massive, regressive taxpayer subsidies -- police respond to the alarms, after all, not the companies who get the money. Taxpayers should welcome DPD's common sense policy, and the city should extend it to residential alarms -- that'd be the equivalent of putting dozens of new officers on the street without raising taxes or reducing public safety in the least.

Drug war focus lets violent criminals go unpunished

Is the focus on the so-called drug war by US law enforcement causing clearance rates for burglaries, robberies, rapes and murders to go down? That's the implication of an analysis of FBI crime statistics by former New York corrections official Scott Christianson, published recently in the Christian Science Monitor ("Questioning US arrest statistics," Jan. 18).

We've all heard police and politicos claim credit for reductions in reported crime nationwide over the last decade or so, and there's a certain facile logic to the notion that more arrests should reduce criminality. But from a statistical perspective, it appears police effectiveness has little to do with that decline -- in fact, those who commit serious crimes are less likely to be caught by police today than at any time in modern history. That's because the criminal justice system has empirically become less effective at investigating and solving serious crimes in recent years, even as the number of arrests skyrocketed. According to the Monitor:

discussions of police performance often fail to note another important but overlooked trend, apparently unrelated to the falling crime rate: Federal statistics reveal that the nation's "clearance rate" - the percentage of cases for which police arrest or identify a suspect - has fallen dramatically. And this shift is fraught with implications.

The arrest clearance rate for reported homicides recently dropped to about 60 percent compared with about 90 percent 50 years ago. This means that a murderer today has about a 40 percent chance of avoiding arrest compared with less than 10 percent in 1950. The record for other FBI Index Crimes is even more dismal: The clearance rates have sunk to 42 percent for forcible rape, 26 percent for robbery, and 13 percent for burglary and motor vehicle theft, all way down from earlier eras.

Can you believe that? At a time when blustering politicos call for "zero tolerance" on drugs, 87% of burglaries and 58% of rapes go unsolved. Why in the world would we prefer to tolerate those crimes in order to crack down on drugs? That's exactly what this article says is happening:

So, if reported crime has been going down and arrests have gone up, what accounts for the plummeting arrest clearance rates for murder, robbery, rape, burglary, larceny, and motor vehicle theft?

Part of the answer must involve drug law enforcement - victimless offenses that aren't reported to the police or included as FBI Index Crimes. Instead of arresting suspects for burglaries and other serious reported crimes, cops today spend much of their energy going after illegal drugs. Their arrest rate for drug possession (especially marijuana) has shot up more than 500 times from what it was in 1965.

And what are some possible implications of this shift?

For one thing, it may give criminals the impression they can get away with nondrug related crimes.

For another, it may lessen public support for the police. Polls show those who live in "high crime" neighborhoods are generally the most dissatisfied with the police. Maybe this is because they have reported to the police that they have been victimized by robbery and other serious crimes, then witnessed that the police are not arresting anyone for it but are instead aggressively waging a "war on drugs" in the community.

Nevertheless, the matter of falling arrest clearance rates hasn't received much scrutiny from the police or the public.

Maybe it hasn't received scrutiny, but it should - especially since our prisons are overflowing with nonviolent offenders to the point where violent felons must be released to make room. Christianson says this trend should prompt "serious discussion" of law enforcement's priorities -- I'd say it should prompt a radical overhaul, and soon, before violent crime rates climb again and we're all wondering why.

New PD office should improve "Law West of the Pecos"

In Del Rio, Val Verde County officials are about to enact one of the most important changes in their criminal justice system since Judge Roy Bean declared himself the "Law West of the Pecos."

Val Verde recently received a fat grant from the Texas Task Force on Indigent Defense to launch a new public defender office that should help control attorney costs and jail overcrowding ("County to get public defender program," Del Rio News-Herald, Jan. 22). They're hoping the new office will cover up to three other counties besides Val Verde, making it the first regional public defender in the state. The job may wind up being contracted out to a nonprofit legal services group. Reported the News-Herald:

According to figures provided by the task force, Val Verde County’s expenses in providing legal representation for persons who cannot afford attorneys when they are charged with a criminal offense have risen 83 percent since the state passed the Fair Defense Act in 2001.

In Fiscal Year 2001, the county spent $176,404 on indigent defense.

In Fiscal Year 2005, it shelled out $323,659.

The $470,304 grant provided to the county through the Task Force on Indigent Defense will help the county set up a regional public defender program that will serve both Val Verde County and neighboring Edwards County.

“Two other counties, Terrell and Kinney, will be offered the opportunity to participate. The program will be implemented either as a county department or a non-profit corporation,” said Bryan Wilson, grants administrator for the Task Force on Indigent Defense.

“A request for proposals (RFP) will be issued by commissioners court in accordance with the Texas Code of Criminal Procedure. The county’s current preference is for a non-profit corporation. If a non-profit is awarded this contract, it will be the first time in Texas that indigent defense would be provided in this manner,” Wilson added.

Wilson also noted that “it will be the first time in Texas that a regional solution for constitutional effective assistance of counsel has been provided in a formal program.”

Regular readers know I'm a fan of public defenders' offices, especially compared to the sorry, court-appointed system many Texas counties operate under now, where indigent clients too often receive inadequate representation from attorneys who aren't really paid enough to care. That doesn't mean every attorney who accepts court appointed clients does a bad job -- not at all. I know some first-rate lawyers who give court-appointed clients the identical representation they do to those who pay them. But in aggregate, the results are spotty, inconsistent from client to client in comparison to public defenders.

By contrast, PDs typically provide more consistent, zealous defense than appointed systems. What's more, they save counties money on indigent defense costs, and help reduce jail overcrowding by advocating more frequently for personal bonds and processing cases faster through the system.

A little birdie told me that the nonprofit group being considered to run the public defenders office is Texas RioGrande Legal Aid, a quality outfit that seems like a good fit for the border region.