Texas' high imprisonment rate a stain on the national character

Doc Berman at the inestimable Sentencing Law and Policy blog brings news via Andrew Sullivan of a new report charting world incarceration rates: Unsurprisingly, the Land of the Free leads the pack. The United States incarcerates a far greater percentage of our population than any other country, reports the Sixth Annual World Prison Population List (pdf), imprisoning 714 adult residents per 100,000 nationwide, while 3/5 of nations incarcerated less than 150 per 100,000.

All I can say is, "714"? Pshaw!

Welcome to Texas, baby. Last I saw we rock out here at 1,035 per 100,000. Nothing says "we love freedom" like locking up one out of every hundred adults. Andrew Sullivan picked up on that, too: "Texas, by the way, has an imprisonment rate of well over 1,000," he wrote on his blog. "There's no country on the planet - no dictatorship on earth - as comfortable with locking people up as the state of Texas."

He's got a point. Including those on probation and parole, the Justice Policy Institute calculated that one in 20 Texans at any one time are under control of the criminal justice system! Take that, Belarus! And what'd we get for it? According to JPI, "Despite adding more than 100,000 prisoners this decade [1990 to 2000], Texas' crime rate has declined more slowly than other large states."

Of course, my friends in Louisiana would hasten to add that the Bayou State has since surpassed Texas in the ignominious category of who imprisons the highest percentage of its citizens, especially after of bunch of their people left the state last year, reducing the denominator further in the prisoner-to-population calculation. Mississippi is always right up there at the top of the pack, too. While obviously a lot of factors are at play, it's funny how it's the three states in the Fifth Circuit leading the incarceration brigade. But whatever the cause, the fact remains the southern gulf states are driving the incarceration train in America, which means we're driving the incarceration train for the whole world.

This is a 20th century phenomenon I think the US founding fathers would have abhorred. Two major categories of modern "crime," immigration and drug prohibition, weren't even against the law the nation's first 130 years or so. (Immigration was first restricted in 1918, drug prohibition rose up in the '20s). Today, immigration cases make up the largest portion of federal prosecutors' workload, followed by prosecuting the drug war. In the states, drug prosecutions still lead the way. Those aren't the only sources, though of what's been referred to on the right as "overcriminalization." In Texas, nearly 2,000 separate acts have been declared felonies by the Legislature - when God laid down the law in Exodus, by contrast, He could only come up with ten.

These numbers are an embarrassment, a stain on the national character. How can a republic founded to establish freedom from tyranny lock up more of its people than any other? Somewhere along the way, we must have lost our path.

Revisiting the blame game for overincarceration at the Harris County Jail

While I was out Kuff further covered the response in Houston to state demands to lease new beds because of overcrowding at the Harris County Jail, tackling the question, "Who is to blame?" Kuff lays fault with Sheriff Tommy Thomas, and in a way he's right since the Sheriff along with the commissioners court have failed to hire enough guards to open all available units. Harris County right now has enough unused jail beds to house prisoners, if they only hired enough guards to staff the facilities.

But it's also correct, as I've argued before, that the District Attorney and local judges are to blame - indeed, there's plenty of blame to go around, if that's what you're looking to do. Regular readers know I prefer to focus on solutions, but Kuff said he didn't quite understand the role of the judiciary in this mess so I'll bet others are confused, too. Let's be clear.

In 2003, Texas passed HB 2668 requiring judges to sentence defendants to probation and drug treatment instead of incarceration in a so-called "state jail" facility for the lowest level drug possession offense - e.g., less than a sugar packet full of powder. The goal was to shift up to 4,000 non-violent offenders per year out of prison and onto probation, saving tens of millions of dollars and helping avoid the state's own overcrowding crisis. So far so good.

But in Harris County, which prosecutes about half of all such offenders statewide, judges found a loophole and prosecutors routinely and aggressively push for it. State law allows judges to order county jail time as a condition of felony probation. Usually county jails are used as punishment for misdemeanors and for defendants awaiting trial.

So even though they "probate" drug users' sentences which diverts them from state prisons, judges instead are sentencing those probationers to the county jail where Harris County taxpayers pick up the tab. They don't have to do that - hardly anybody else does, and that's what makes the Harris County overincarceration crisis a self-inflicted wound. They'd more than make up the 500 people they're being told to lease space for if they just stopped sentencing probationers unnecessarily to jail time.

So both claims are right. Either solution would have resolved the current crisis - hiring more guards or judges abiding by legislative intent regarding when to jail low-level drug users. But if you think, as I do, that we're incarcerating too many nonviolent offenders already, then sentencing drug users to probation makes more sense then endlessly opening more jail beds.

Report on Houston Crime Lab Published

The full 108-page report from independent investigator Michael Bromwich is here, raising further questions about the fallibility of scientific analyses at the lab. A highlight:

Thus far, our investigation has identified a total of 43 DNA cases and 50 serology cases analyzed by the Crime Lab that we have determined to have major issues, which we have defined to mean problems that raise significant doubt as to the reliability of the work performed, the validity of the analytical results, or the correctness of the analysts’ conclusions. Many of the problems we have observed in the serology cases infected the Crime Lab’s DNA profiling operations.

As I've argued before, in modern forensic science it frequently seems like accuracy is optional. To make matters worse, politicians aren't looking at the real solutions, just more money for more of the same. The best fix for faulty state crime labs is to pay for indigent defendants to hire independent experts. It doesn't sound that radical: Using the adversarial system's checks and balances to protect defendants from being falsely convicted. But because it would be expensive, it's far outside the terms of debate as far as what the Governor and the Legislature are considering.

To me that's no excuse. If lawmakers choose to preside over a state where one in twenty Texans is in prison, on probation or on parole, they must pay what it takes to procedurally ensure fairness for each of them.

For more information, see previous reports and other information involving the investigation at this official website.

ACLU in a Utah state of mind

Back from Park City, UT where I was attending and presenting (on the subject of confidential informants) at the ACLU national staff conference. Utah is gorgeous, but 3.2 beer sucks - can you believe they actually make a 3.2 Guiness?! That's wrong on SO many levels.

I've worked with ACLU in Texas since about 2000, as a part-time staffer since 2003, but in many cases this was my first-ever chance to put faces to names at ACLU national and in other states. I met quite a few Grits readers there, too! Thanks to everybody who thought to mention it - I was flattered, to say the least, at the positive comments I got on the blog. Of course, that's a pretty sympathetic crowd.

ACLU is involved in so much amazing, important work it really boggles the mind, and little of it fits into the usual stereotypes: National legal director Steve Shapiro, discussing what's happening at the US Supreme Court this term, mentioned a case in which ACLU filed an amicus brief on behalf of a pro-life plaintiff suing to overturn federal campaign finance restrictions - you tell me, is that a liberal or conservative thing to do? (The question at hand is whether Congress can restrict non-profits from running issue advertising within 60 days before an election.)

The focus was a lot more on criminal justice and anti-discrimination work than all the "culture war" stuff you see hyped. Though there were strong contingents there working on issues like gay rights and abortion, Shapiro estimated that 2/3 of ACLU national's legal docket in some fashion involved racial-justice related topics. Our work in Texas and at the Drug Law Reform Project in Santa Cruz on snitches was highlighted in a couple of panels and at a special networking session, advertised by the depicted poster. DLRP director Graham Boyd declared his view that in a few years, public perception about confidential informants will change in much the same way as the topic of racial profiling at traffic stops did over the last decade with the campaign against DWB, or "Driving While Black." I think that's right, that this is the kind of wedge issue that can help change the way people think about criminal justice topics.

Another really important criminal justice situation highlighted was the "school to prison pipeline," i.e., the relationship between heightened use of draconian school discpline tactics, increased dropout rates, and who winds up in prison. That's a big focus of ACLU's national racial justice project. It's a huge subject: You hear a lot about racial disparities in prison, but education level is perhaps an even stronger determining factor than race in who winds up incarcerated.

Since I'd never been to one of these shindigs, though, this was mainly about networking and meeting folks for me and I was thrilled to spend time with some amazing folks. Everywhere you turned you met somebody slugging it out on some cutting edge issue. Overall it was a surprisingly young, diverse crowd filled with cool, groovy people, all doing exciting, important stuff.

After 9/11, IMO, ACLU overnight became the most important advocacy group in the country. On national security there's really no one else positioned to confront the key issues facing the country like torture, wiretapping and unfettered executive power. That's what you hear about ACLU in the news, that I suppose and the "War on Christmas." But I was excited to confirm firsthand through the amazing folks I spent time with this week that in every corner of the country the group's about a lot more than that. It made me proud to be a part of it.

Snitch links on the way out the door

I'm leaving town this morning to attend the ACLU national staff conference in Park City, Utah, where I'll get a chance to talk about confidential informant practices, aka, "snitching," as part of a panel on police reform (regular readers know I'm a half-time employee at ACLU of Texas). I'm taking the laptop, but blogging may be light while I'm gone. Here are a few new snitching-related links I ran across while reviewing for the event:

• Marketing Betrayal: I'd missed this NPR item from January on the Stop Snitching movement. While decrying witness intimidation, correspondent Siddartha Mitter also blames a "justice system that's hooked on imprisonment and incrimination when communities need safety, investment and healing." He quotes Loyola law professor Alexandra Natapoff, a Grits favorite thinker on the subject, calling the informant system "a government-sponsored market in betrayal and liability." That's a great line and a powerful concept. Where are all those law and economics cats in academia when you need them?
• Rat Hall of Fame: The Illinois Police and Sheriff's News has this odd tribute page on its website to informants who helped bring down the Italian mob.
• "That's how it goes when friends turn to foes." This rap video depicts protagonists murdering a snitch who participated in a robbery but later turned in his partners.
• Riches for 'illegal' snitches? Pittsburgh Post-Gazette columnist Dimitri Vassilaros proposes turning illegal immigrants into snitches against their employers to solve the immigration problem. With fat rewards for informants (he suggests $50K plus citizenship for the whole family), businesses would quickly stop employing ineligible workers for fear of being ratted out. That could be right, but if so many people think amnesty is rewarding illegality, what would the same folks say about THAT idea?
  

See also these prior Grits posts about snitching:

• Rethinking Judas
• Hip Hop, Snitches and Witnesses
• Most US workers don't snitch
• Don't snitch, Jack
• Is Grits Pro-Snitch?
• Who's a Rat?
• When you know the whole informant thing has gotten out of hand
• Here a snitch, there a snitch
• Snitch reforms in other states cited
• Requiring corroboration for eyewitness testimony might have saved Ruben Cantu
• What can happen when you snitch?
• Snitching undermines justice institutions
• A Snitch in Time
• Failed 2005 Texas snitch reform
• Snitch rules protect apparently mendacious DEA agent
• Snitching keeps escort services in business
• A prison guard's aversion to snitches
• DEA snitch data lost
• FBI violates snitch rules
• Wichita Falls snitch makes false accusation
• University cops promote web snitching
  
• Self-serving snitch at center of John Dillinger capture

Austin's worst corner best for BBQ

An indepth Austin Statesman article about street crime focuses on a corner about 8-10 blocks from my house in East Austin ("Austin's worst corner," May 7).

That may well be Austin's worst corner judging only by the long-tolerated open air drug markets, but it's a great place for a carnivore, especially if you're in the mood for some smoked brisket or maybe some yardbird. I've been eating at Sams BBQ, described in the story, for nearly 20 years. It's a family operation run by really good folks - they used to advertise in a student magazine I co-edited back in college.

Harris Sheriff appeals overincarceration ruling

Kuff has the word on Harris County Sheriff Tommy Thomas' appeal of the ruling by the Texas Commission on Jail Standards that he relocate 500 prisoners to leased beds, wondering aloud why Thomas didn't confront the problem before now. He points to a Houston Chronicle story ("Sheriff appealing order, won't transfer inmates," 5-6) where officials have already begun pointing fingers:

[Sheriff] Thomas also accused Harris County judges and the District Attorney's Office of circumventing state law by allowing nonviolent offenders to negotiate plea agreements enabling them to serve sentences in the county jail rather than in state facilities.

"It just defeats the whole purpose of the state-jail felony," Thomas said.

Blame game or not, he's right about this one. I wrote here about the controversy Thomas is talking about - the Harris County DA and district judges are using a loophole to incarcerate hundreds of offenders who should be eligibile for probation and drug treatment. The Houston Chronicle explained the problem last summer:

The Legislature adopted a law in 2003 requiring that, in any state jail felony for possession of a small amount of drugs, the judge should suspend the jail time and place the offender in a community supervision and drug treatment program.

However, according to the ACLU study, judges in Harris County have exploited a provision in the law that allows them to send those felons to county jail rather than state jail.

"Using this loophole, a court can avoid the Legislature's intent to move low-level drug possessors into treatment rather than incarceration, and put the entire burden for such a dodge on the county," states the report. "Only one county is choosing to lock away a large number of state jail felons in county jail, rather than place them in a community supervision program: Harris County."

"It's become more and more clear that it's actually the judges' sentencing practices that are causing overcrowding," said the ACLU's Ann del Llano.

I've written before there are many sources of overincarceration pressure facing the Harris County jail, including arrestees' reduced access to personal bonds and guard shortages. But this one fix - sentencing first-time, low-level drug possession offenders to probation and treatment instead of jail time - would free up more than enough space to satisfy the Jail Commission.

See also:

• State to Harris: Pay the piper for overincarceration
• Guard fears retaliation for revealing Harris County inmates still sleep on floors
• What they're reading at the Harris County probation department

More prisons, new contraband problems

The State of Texas can't afford to house the prisoners we've got, much less hire enough guards to police prisons for contraband, but private companies are building more prison units rapidly, hoping to cash in on the immigration detetion boom I wrote about earlier. These two Texas prison-industry trends - expanding immigration detention and the latest fad in contraband smuggling - received some recent media attention:

South Texas Hold 'Em
The Texas Observer published an article by Forrest Wilder (5/5) detailing the private prison industry's plans to capitalize on the immigration detention boom I wrote about earlier. Wilder describes a future marked by staggering private prison growth, nearly all of it aimed at housing immigrants and much of it in South Texas:

Nationwide, the number of ICE detainees went from 7,444 in 1994 to about 23,000 now; during the same period, the Marshals Service’s population more than doubled to an estimated 63,000. Just in the last two years, Congress has authorized 40,000 new ICE beds over the next five years and given the Marshals Service funding for another 4,000 to 5,000. And the President’s proposed 2007 budget calls for a $452 million increase in ICE funding, including money for another 6,700 beds. One of the companies to benefit from the government’s building—and privatizing—binge is KBR, a Halliburton Co. subsidiary, which in January was awarded a contract worth up to $385 million to build temporary immigrant detention facilities for the Homeland Security Department in case of an “emergency influx of immigrants,” according to a KBR press release. The top companies running South Texas detention centers are the Corrections Corp. of America (CCA), GEO Group Inc., and Emerald Correctional Management.

[Activist Bob] Libal says a “perfect storm” explains the growth in the detention industry. “First, you have this kind of anti-immigrant sentiment coming out of Washington at the federal level; second, you have increased zealotry from the U.S. Attorney’s office to prosecute people criminally for extremely minor immigration crimes; and third, you have these private prison companies that are cashing in on the immigration incarceration boom.”

Cell phones hotter commodity than drugs in prison
Last year inspectors in Texas prisons seized 135 phones, this year they've seized 90 through April alone, reported AP, mostly from two units:

Investigators say prisoners are willing to pay between $350 and $600 to have a phone smuggled into prison. And they often involve a corrections officer in such schemes. ...

The Texas prison cell phone problem is highly concentrated in two prisons the Darrington Unit and Connally Unit in Karnes County, where prosecutors say gang membership is high.

The Darrington Unit, in particular, is considered a "hotbed of corruption" by investigators and prosecutors, Mr. Hall said.

"It's very close to Houston, and you have a large inmate population there from Houston," Mr. Hall said. "They have contacts in Houston."

Better make room: Without stronger probation, Texas needs 14,000+ new prison beds by 2010

Texas must immediately build thousands of new prison beds or else change its probation policies, so says Tony Fabelo writing in a front-page article (pdf) in The Texas Prosecutor (newsletter of the Texas District and County Attorneys Association). The former Texas Criminal Justice Policy Council chief said Texas will need 13,700 beds by 2008, according to CJPC's last estimate, and 14,490 by 2010 according to the Legislative Budget Board.

Today Texas prisons are full to the brim. Texas' failed probation system is a huge cost driver, Fabelo reports: "25,639 probation revocations in 2005 cost the state an estimated $1.124 billion in incarceration costs."

I was glad to see him complimenting Travis County's probation operation. He described their approach in some detail as an example of a department strengthening community supervision, revamping the bureaucracy with an eye both toward reducing unncessary incarceration and improving outcomes for offenders.

See Grits' past discussion of Travis' probation reforms here, here, here, and here. See also Fabelo's comments on probation in this Texas Observer interview.

Thanks to Shannon for the heads up.

State to Harris County: Pay the piper for overincarceration

At yesterday's hearing, the Texas Commission on Jail Standards ordered Harris County to relocate 500 prisoners to contract housing - at going rates that'll cost about $30,000 per day ("State tells packed jails to transfer 500 inmates," May 5, Houston Chronicle).

Renting space in other counties for five hundred inmates would immediately leapfrog Harris County to the top of the list of counties with the most prisoners housed in contract beds. Until now, Smith County headed the list statewide with 257 inmates in rented beds (as of April 1), 176 from Lubbock, 116 from Parker, 101 from Fort Bend. Here's the full list (pdf).

Five-hundred beds sounds like a lot, but we're talking about a 9,000 person jail. Harris County judges could reduce the jail population that much if they quit sentencing probationers unnecessarily to county jail time.

See past Grits posts on the causes of overincarceration at the Harris County jail, and suggested, non-jail building solutions to overcrowding.

Guard fears retaliation for revealing Harris County inmates still sleep on floors

When the Texas Commission on Jail Standards meets this morning at 9 a.m. in Austin (see the agenda), they'll be told by the Harris County Sheriff's Department that no more inmates sleep on the floor at the Harris County Jail, which recently failed its third annual inspection in a row. Last summer as many as 1,700-1,900 inmates slept on mattresses on the jailhouse floor because of excessive incarceration of probationers, reduced access to personal bonds and guard shortages.

Now the Sheriff says the problem is fixed, but one of his own jailers says that's not true. Reported the Houston Chronicle ("Jail system's crowding cited," May 4):

Harris County Sheriff Tommy Thomas, whose office operates the jail, acknowledged Wednesday that, because of a shortage of guards, some prisoners are being housed in areas designed to house a small number of inmates, and that some inmates have had to sleep in temporary bunks.

A temporary bunk is a rectangular piece of metal with four legs that sits about 4 inches off the ground. Inmates sleep on mattresses placed on the steel structures. But some inmates, said a Harris County guard, are forced to sleep on mattresses on the floor, sometimes next to toilets,

"That happens frequently," said the guard, who asked not to be identified for fear of retaliation.

"Some inmates just have a mattress — if they're lucky — and their bed is just whatever spot on the floor they can find."

Thomas denied that inmates are sleeping on the floor. The commission report did not state how many inmates are without regular bunks. Last year, inspectors reported that almost 1,300 inmates were sleeping on the floor.

So Harris County's official position before the Jail Commission will probably re-state Sheriff Thomas' claim that no prisoners still sleep on the floor, but a guard who feared retaliation says it "frequently" happens. Hmmmm. Who to believe?

This isn't the first time a Harris County Sheriff's deputy accused his boss of manipulating the Jail Standards Commission. Last year, reported the Chronicle, "Speaking on the condition of anonymity, ... two jailers charged that Sheriff's Office officials sometimes hid inmates from state inspectors. 'They played a game of musical inmates,' said one jailer, who also is a deputy sheriff. 'They would take them from one building to another through the tunnel system.'"

Whaddya think? Should the Commission accept the Sheriff's claims at face value? Would you? What's going on at the Harris County Jail?

Report to La Migra as probation condition?

In my home county of Smith up in Northeast Texas (Tyler is the county seat), judges are requiring probationers they suspect of being illegal immigrants to report to immigration authorities for "voluntary deportation," reports ImmigrationProf blog. Longview attorney Jose Sanchez said probation conditions for two of his clients included the requirement that, "At the end of twelve (12) months from the date probation begins, if you have not obtained legal status from the U.S.I.C.E, for being within Smith County, Texas, you must leave the country and reside in a location where you do have a legally authorized status."

Heavens! Talk about making law from the bench! This activist judicial genuflection to popular sentiment certainly makes a bold gesture, but possibly not a legal one I'm told by a couple of friendly immigration lawyers. The issue is whether and how a state district judge would have authority over a defendant's immigration status in the first place - state judges historically have no jurisdiction to enforce federal statutes. Sanchez said he wants "to investigate as to whether what they are doing is constitutional?"

I'm not an attorney and can't address the legal question, but from a public policy perspective I've argued before that local policing and immigration enforcement don't mix. In this case, it seems to almost guarantee the probationer will abscond - then what is gained? At root, immigration is an economic issue, not a criminal justice concern, or it shouldn't be. Ask anyone who lived through the Great Depression: poor people who migrate looking for jobs just aren't the same as criminals acting with malicious intent. Despite pious rhetoric about respecting the law, using the criminal justice system for immigration enforcement worsens public safety for everyone.

University cops promote web snitching for fun and profit

After the pro-democracy demonstrations in Tiananmen Square in 1989, the Chinese government broadcast surveillance camera footage and offered cash rewards for anyone willing to rat out individual protesters.

The University of Colorado at Boulder has taken a page out of the Communists' handbook and published surveillance photos online from a "smoke-in" style anti-drug war protest on April 20, aiming to identify and presumably prosecute the participants.

You get $50 apiece for snitching out your fellow students. Ugh! That's revolting to me, both that the university would do it and that anyone would participate to help identify folks. I've argued before that, while sometimes justified, snitching violates a number of positive, right-thinking values that deserve more respect than the criminal justice system and the drug war often afford them.

I'm sure police believe publishing these photos on the web will serve a shaming function, punishing alleged offenders through public disgrace whether or not they can be convicted of anything (after all, who can prove what was in the depicted hand-rolled cigarettes?). But that's not law enforcement's role - judges and juries decide punishments in this country, not police.

If these aren't actually prosecutable cases, this tactic becomes nothing but thuggish harassment, no better, really, than what these guys are doing. Certainly it's hard to argue that anything about this totalitarian exercise improves public safety.

Surely some people would report anyone they saw smoking pot to authorities; for them, the pay wouldn't change a thing. But if you wouldn't snitch without it, fifty bucks seems a grotesquely small sum for someone to be willing to trade their values, turn on their friends and become a rat.

Thanks to Daniel Bear for pointing me to this case.

Highest paid Houston cop also most punished

Talk about rewarding failure.

Houston's highest paid cop has also been disciplined by the police department more often than just about anyone - 32 times over the course of his career, reported Steve McVicker in the Houston Chronicle ("Highest-paid HPD officer also racks up reprimands," April 30).

Senior Houston Police Officer William Lindsey, Jr. made more than $170,000 last year as a police officer, most of it from overtime clocked with that city's DUI unit. But in the past, HPD's internal affairs unit sustained complaints against Lindsey for "falsifying time sheets to reflect overtime he didn't work," as well as turning off his radio during the workday and failing to turn in marijuana seized from a suspect. Reported McVicker:

Only 13 of HPD's 4,760 officers have been involved in more than 23 complaints resulting in "sustained" allegations, according to department records through 2004.

Internal affairs sustains an allegation after investigating and finding merit in complaints that come from the public and from within the department. The chief then decides discipline.

The complaints against Lindsey include verbally abusing citizens, falsifying time sheets to reflect overtime he didn't work and refusing to report for duty, according to documents obtained by the Houston Chronicle through the Texas Open Records Act. His punishment has ranged from being ordered to undergo counseling to being suspended for 15 days without pay. In nine of the complaints, Lindsey's discipline included unpaid leave.

But since the Texas attorney general ruled in 2000 that law enforcement agencies do not have to publicly reveal disciplinary action against an officer that resulted only in a written or oral reprimand, the number of sustained allegations against Lindsey could total more than 32.

They almost certainly do - I've not done the research for Houston, but under Austin PDs interpretation of the same civil service rules, information about fuly 2/3 of sustained complaints against officers remain secret. (That's a big reason why I support Prop 1 on Austin's May 13 ballot - it opens up records about the other 2/3 to public scrutiny, just like at hundreds of other Texas law enforcement agencies.) So there's a very good chance Lindsey had more complaints sustained than 32 - perhaps quite a few more.

It was interesting to me that the only law enforcement officers the paper could find who thought 32 sustained complaints was over the top wouldn't speak on the record - that blue wall of silence, it appears, is still working overtime. Reported McVicker:

several law enforcement officials contacted by the paper expressed surprise that a police officer with Lindsey's record was able to keep his job.

"I'm shocked," said the head of an internal affairs division for one Texas law enforcement agency, who asked not to be named out of fear of reprisals by his employer. "If the internal affairs file of an officer has 32 sustained cases, something's wrong with (that department's) system if he's still employed."

Other law enforcement officials who expressed similar sentiments also asked not to be named.

That tells you how strong is the taboo among officers against criticizing one another - why be embarrassed about appearing critical of this guy? Only 13 officers out of nearly 5,000 in Houston have more than 23 sustained complaints - the number of officers conistently causing problems, as in many departments, really is relatively small. The bigger problem is that good cops won't muster the courage to speak out when their compromised brethren misbehave, and police administrators are hamstrung by state law when they go to discipline the worst offenders.

I'd hope somebody from HPD Internal Affairs is triplechecking Officer Lindsey's overtime sheets from last year to ensure they're on the up and up, since he has a confirmed record of fudging them in the past.

Thanks to Bill for the email tip.

Student-Generated Data for Texas Taser Use by Police Online

This kind of experience might almost make going to journalism school in college seem worthwhile ... almost.

The Distributed Reporting Project at the University of North Texas' Mayborn Institute has placed online pdf versions of the results of public information act requests by journalism students from four Texas universities - UT Arlington, TCU, Tarleton State, and UNT - to Texas police and Sheriff's departments regarding their use of Tasers and stun guns. See the results for your jurisdiction here. The article from Fort Worth Weekly referenced in this Grits post used data from these student researchers.

The project is collaborating with the Freedom of Information Foundation of Texas, a nonprofit supported by many of the the state's daily newspapers. Students from UT Austin and SMU participated in the project during the Spring '06 semester, the website reports. I hope they were researching something cool.

Immigration detention boom in Central Texas

Earlier I discussed the coming detention boom spurred by misguided US immigration policies and how private prisons and some county jails view the situation as a potential, long-term cash cow. As protesters prepare for today's El Dia Sin Los Immigrantes, the feds continue to roll out massive new spending on old, failed approaches. Here's a microcosm of that phenomenon playing out in Central Texas:

A mothballed private prison facility in Taylor, a small town in Williamson County north of Austin, will soon begin housing immigration detainees, News 8 reported this weekend. The facility will house up to 600 immigrant families, according to the report, and employ around 200 people to administer and guard them. I wonder where the guards will come from? The State of Texas already can't find enough people for that job - the Texas Department of Criminal Justice is nearly 3,000 prison guards short and has reached the bottom of the applicant pool.

In any event, do you suppose those 200 employees and their families will be voting for candidates to rationalize immigration policies or for those who want to boost enforcement and thus guarantee their jobs? That's the most frustrating part to me about the current approach. As President Bush points out, it's impossible to deport our way out of the problem. Even so, we're spending a fortune in federal pork to manufacture new constituencies who benefit from current failed policies, not looking for real solutions on immigration.

The Notorious Bettie Page

Kathy and I went Friday night to see the newly released biopic, The Notorious Bettie Page, at the Alamo Drafthouse on South Lamar (for you out-of-towners that's a popular spot where you can order drinks and eat dinner with your movie in the theater). I'd never heard of Bettie Page, and we picked the film on the basis of a) we could eat there, and b) it seemed like lighter fare than Thank You For Smoking. Given my mood Friday, I might have chosen an interesting looking cartoon, and this looked like an adult version.

As always, I love the Alamo and the pre-film clips of real-life '50s pinup Bettie Page doing various poses in a variety of ridiculous outfits was as fun as the film itself. If you see the film there, go a half hour early to get a taste of the lady herself in action. Hilarious! (Great stuff, Alamo clipfinders! Your pre-show clips are my favorite part of going there - okay, the availability of food and booze during the movie is cool, too.) While the films were intended to be sexy and many were banned at the time, by comparison to today's average MTV video they're REALLY quite tame .. and funny, in a hokey kind of way. For whatever it's worth, the generation that's grown up with Christina Aguilera will see this film and wonder what all the fuss was about?

Gretchen Mol did a good job with a less than mediocre script that failed to explore the central questions raised by Page's art, such as it was. Consistently the questions raised, it seemed, weren't answered, and the questions answered were pedantic and trite.

Was she really so "Golly, gee whiz" about it all or was the real Page more self aware and self directed, especially when her career was at its height? A gang rape portrayed at the beginning of the movie is left almost a non-sequitir - what were the psychological effects of this or other abusive incidents hinted at, and how did they affect her choices? Those subjects were not explored.

Neither did the movie enlighten viewers on the First Amendment questions that would have driven her self-defense when Page was subpoenaed to testify before Congress (she waited all day, in the film, then was told her testimony was no longer necessary). The whole matter of government reaction to her work was dropped. What happened? What did she think about it? Nary a word informs us in the film - the Congressional hearings were just an incident filmakers felt it necessary to portray, not an event through which they revealed anything about Page or the effect of her work on American culture and society. Her long relationship with an actor and continued efforts to break into "real" acting bespoke an internal conflict over her own perception of whether what she was doing was artistic or worthy, but the film superficially hinted at the theme instead of exploring it more deeply.

In all, I'd give the acting a B+ or A-, the script a D, and considered it overall viewable but disappointing for failing to draw more out of the story. That said, order a bucket of beer when you get there at the Alamo, and then the movie improves as it goes along.

Texas CCA: Consent voluntary even if you don't speak English

No habla Ingles? No problemo. You can still give consent in Texas when a cop asks in English to search your car.

Reversing the Tenth Texas Court of Appeals this week, the Court of Criminal Appeals ruled that the appellate court erred in determining a search of Anibal Montanez's vehicle by the Deep East Texas Narcotics Task Force was not "voluntary" because Montanez could not speak English. Instead, declared the CCA majority, appellate judges are obligated to give "almost total deference" to trial judges as finders of fact - in this case, even when interpreting events they can see for themselves captured on videotape. Here's the majority opinion. Three CCA members dissented including Judge Lawrence Meyers, who wrote:

The issue in this case is identical to the issue we unanimously ruled on in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). The court of appeals did not err by failing to apply a Guzman standard of review because there is no issue of credibility and demeanor of the witnesses in this case. This is not a review of a cold record, rather it is the court of appeals watching the exact same videotape that the trial judge watched and then holding that the trial judge made an incorrect ruling. The trial judge was not in a better position to review the evidence as he would be in a situation of live testimony.

In a situation such as the one before us, when the appellate court has the exact same quality of evidence before it on review that the trial judge had before him in a suppression hearing, it is not necessary to view the evidence in the light most favorable to the trial court, and it is not necessary to give almost total deference to the decision of the trial judge. Satisfying a burden of proof necessarily involves weighing evidence. For a preponderance of the evidence, any evidence that tips the scales is sufficient. For evidence to be clear and convincing, it must be "highly probable or reasonably certain." (3) And, as we all know, the highest burden is beyond a reasonable doubt.

As we stated in Carmouche, "the nature of the evidence presented in the videotape does not pivot 'on an evaluation of credibility and demeanor.' Rather, the videotape presents indisputable visual evidence contradicting essential portions of [the officer's] testimony. In these narrow circumstances, we cannot blind ourselves to the videotape evidence simply because [the officer's] testimony may, by itself, be read to support the. . .holding." 10 S.W.3d at 332.

Well, that's a nice sentiment but apparently we can blind ourselves to the evidence - at least a majority on Texas' highest criminal court could. The Texas Constitution requires the state to demonstrate through "clear and convincing" evidence that consent was voluntary - but that doesn't mean much when judges can be convinced even when the driver doesn't speak English.

The ruling comes at a time of growing public concern over abusive search practices at Texas traffic stops. The Legislature last year passed SB 1195 which would have required police to obtain written or recorded consent to perform searches at traffic stops without probable cause, but Gov. Perry vetoed the measure.

That's one way to boost the tourist trade

According to press accounts, Mexico's Congress voted to decriminalize low-level drug possession on Friday. The New York Times' coverage, though, made the policy change sound less sweeping and more complex, creating new police powers to go after drug dealers:

Supporters of the bill said it was meant to fix major flaws in Mexico's current drug laws. First, it will allow local judges and the police to decide on a case-by-case basis whether people should be prosecuted when caught with small amounts of drugs. Previously, every drug suspect had to be prosecuted, a system that put many addicts in jail while dealers went free after bribing officials.

Second, the state and local police will be empowered to arrest and prosecute street dealers who are carrying more than the minor amounts allowed under the law. Under existing laws, drug crimes were handled only by federal officials. ...

"We are not authorizing the consumption of drugs," said Senator Jorge Zermiño, the bill's sponsor in the Senate. "We are combating it and recognizing that there are addicts that require special treatment. We cannot close our eyes, nor fill our jails with addicts."

So Mexico's goal is to stop arresting low-level addicts and focus limited law enforcement resources on dealers and the cartels. Sounds like a reasonable plan. Now we get to see if the sky really falls.

Perhaps the biggest benefit will be to remove a big source of drug-related police corruption, which I've argued needs to be confronted on the US side of the Rio Grande, too. AP quoted Drug Policy Alliance Director Ethan Nadelmann declaring that Mexico's legislation will "remove 'a huge opportunity for low-level police corruption.' Mexican police often release people detained for minor drug possession, in exchange for bribes," he told AP.

UPDATE: Talk Left linked to the text of the new law for you Spanish speakers.

NUTHER UPDATE: You had to see this coming: President Fox is scuttling the bill, bowing to US pressure.

The Coming Immigration Detention Boom

If the war on illegal immigration hasn't already become a more expensive government boondoggle than the war on drugs, I bet it soon will. Projecting into the future, the incarceration needs for potential immigration violations, given current and proposed policies, could be limitless.

Already, one third of federal prosecutions in the United States are for immigration violations - more, even, than drug crimes. "The Department of Homeland Security (DHS) recommended the prosecution of 65% more immigration cases in FY 2004 than it did in the previous year," according to the Transactional Records Access Clearinghouse, and that number's only increasing. According to TRAC's data, even before the recent raids immigration agents were taking more cases to court than the the FBI, the DEA and the IRS combined. A huge and growing number of these derive from Texas' Southern District (Houston).

Now Johnny Sutton in Texas' Western District (San Antonio) appears to have climbed on the bandwagon - his office has "filed criminal charges against dozens of undocumented immigrants for crimes that have long been handled with simple deportation," according to the Austin American Statesman ("Austin seeing change in immigration prosecutions," April 28). "For undocumented immigrants in the Austin area, the chance of being prosecuted remains small, but the shift means they are more likely to face federal prison time or leave the country with a criminal record if they are caught," reported Steven Kreytak.

In the past, smuggled immigrants have not faced criminal charges for their first illegal entry.

Because of limited resources, Sutton said prosecutors will continue to focus on filing federal charges against the most dangerous immigrants.

Without discussing the recent cases, Sutton said that prosecutors will consider charges under the illegal re- entry law when the person is suspected of other illegal activity, has a significant misdemeanor record or was "combative or disruptive at the time of arrest."

Assistant Federal Public Defender Horatio Aldredge said that if prosecutors continue to seek criminal charges against a wider sample of immigrants, the system may not be able to handle them.

"It seems to me," he said, "that it's not a very good allocation of resources."

Hmmmm. If they're "combative or disruptive at the time of arrest," why not charge them with whatever is the federal version of resisting arrest, I wonder? Why turn the immigration case into a criminal charge? One notes that the threshold of being "suspected of other criminal activity" isn't very high, either. And since we're talking about a prosecutor's decision about what charge to file, that suspicion will never be tested with evidence before a judge.

Forget due process concerns for a minute, though. This is bad public policy. Bottom line: Where will it end? With the jobs of so many prosecutors, border security agents and detention facility personnel on the line, we've created a massive industry that's dependant on the US having a dysfunctional immigration policy. If they ever fixed it - if the number of federal criminal cases dropped by a third overnight and tens of thousands of rented detention beds were no longer needed - many thousands of people would lose their jobs.

We're creating large, powerful constituencies with stakes in a flawed system. The Border Patrol's staff has grown more than 1,200% in the past three decades, during which time illegal immigration skyrocketed. Meanwhile, immigration detainees are the fastest growing part of the US prison population. The Dallas Morning News in February predicted a detention bed "gold rush" in the short term based on current prosecution trends.

Amazing: All that to prevent willing employers from hiring willing workers. A rational immigration policy would put most of those folks out of work. We could increase enforcement spending many times over and still not have as big an impact as would simple economic reforms.

Via Bender's Immigration Bulletin