Criminal Jurisprudence Has 35 Days Left to Define a Legacy

Rather than focus this week on the bills up in the House Criminal Jurisprudence Committee - which as I've mentioned has become an increasingly frustrating and disappointing enterprise as the session has drug on - why don't we examine some good bills that are still languishing in committee that deserve approval?

It's not that the committee hasn't passed ANY good bills. As noted elsewhere, they've passed several important bills I heartily approve of. But its members appear overly infatuated with penalty enhancements and draconian police state tactics as the solution to every social problem. The committee hasn't fully participated in the grand project Rep. Madden and Sen. Whitmire have undertaken to reverse Texas' recent overwhelming prison growth.

That's not entirely the committee's fault. For starters they have a rookie chairman, and three of its members are freshman with no background on the issues who couldn't be expected to dive straight into complex details. But even before bill filing deadline in March it was clear that this committee simply didn't get enough good bills filed on its topic areas. Next session I hope committee members and other House members step up more aggressively, particularly to propose more so-called "innocence" reforms, which fall squarely in the committee's purview but which are largely absent or ignored among filed House bills. Indeed, some bills this committee proposed and approved head in the opposite direction.

That said, for this session they'll have to work with bills they've got in front of them. So let's run through some good legislation that's already been heard in the Criminal Jurisprudence committee that I think deserves to be voted out as soon as possible. (I'm not going to link to every bill, but you can look them up on the capitol website.)

Let's start with Rep. Turner's HB 337, which would require that courts find a probation violation was willfull and intentional in order to revoke probation. This would seem to me to fit in handily with other probation reforms taking place this session, but after receiving a hearing early on the bill has sat around in committee without ever receiving a vote. It's a moderate bill, its author is a member of the Speaker's leadership team, it's an issue Democrats should be in favor of - I really don't understand why it hasn't moved yet.

Another bill, HB 1513 by Haggerty, would allow judges discretion to order community supervision in certain violent offenses in the interest of justice. Haggerty is an El Paso Republican and former Corrections Committee chair, so it's not like this is coming from some wild-eyed radical. But so far, no dice - the bill was also heard a month ago and inexplicably left pending since. Similarly, Rep. Turner's HB 1075 laying out the "purpose" of criminal sentencing in Texas law for the first time, as far as I'm concerned has little to recommend against it, but the bill again has been sitting around in committee for far too long without receiving a vote.

Though there are few hard deadlines until May, it's getting awfully late in the session for bills that have already received a hearing to have a chance if they don't move out of committee this week.

Ditto for HB 758 and HB 759 (discussed here), both by Rep. Harold Dutton, which would restructure penalties for low-level drug posssession offenses. Groups from the Texas Public Policy Foundation to the ACLU backed the bills as a way to address prison and jail overcrowding, but the seven Democrats on the committee so far haven't brough themselves to vote for them.

HB 758 in particular is one of the few bills heard this session that would significantly reduce county jail overcrowding, but it's been languishing after both bills received a hearing on March 20. Last year some of the most conservative Republicans in the Legislature - Mary Denny, Debbie Riddle, Terry Keel - voted along with Chairman Peña for an identical bill to HB 758, but this year Peña and the six other Democrats on the committee haven't deemed it worthy of floor consideration. (Another bill they did approve, thankfully - HB 2391 by Madden, discussed here - allows police to issue citations for misdemeanor offenses. Without it the 80th session would be a near-complete loss on local jail overcrowding.)

It's not a big one on my list, but criminal defense attorney readers will be disappointed to learn that the Chair's HB 1267, also heard in February, has yet to move out of committee. That bill would require counties to pay for indigent defense services within 60 days of billing.

Another Turner bill I'd like to see move out of Criminal Jurisprudence is "HB 1476, [described here, which] empowers judges and juries to ignore 'enhancements,' or pile-on penalties, as our friend 800 Lbs Gorilla calls them, 'on a unanimous determination by the jury or a written determination by the judge that the enhanced punishment would result in disproportionate or unfair punishment.' That leaves enhanced penalties available when they're necessary to fulfill the purposes of sentencing"

A bill which I understand may be voted out this afternoon, HB 1148 by Madden, was just heard last week but it's a worthy bill that deserves support and quick vote - it narrows the range of things that can be declared a "deadly weapon" for purposes of enhancing penalties to a more reasonable standard, limiting "creative" uses of the statute. (When I asked Chairman Madden about this bill he said he hoped it'd be voted out of committee today, so supporters should keep your fingers crossed.)

Legislation to improve representation for capital defendants cleared the Senate and now the ball is in the Criminal Jurisprudence Committee's court, so we'll soon see what they'll do with it. SB 528 by Seliger was approved by the Senate on April 12 and is presently awaiting a House committee hearing. It's a companion to HB 1266 by Peña, which has been pending in committee since February. Again, since the committee's already heard the bill once, I hope the committee doesn't dilly dally around too long before taking this up.

Rep. Escobar proposed a good bill, HB 1773 (discussed here), to compel more thorough notice when prosecutors intend to introduce extraneous or "prior bad acts" into evidence - current law requires notice, and Escobar would add "written" notice 30 days before trial. Some DAs may give the information verbally in an informal setting and claim they've complied with the current law, but Escobar's bill creates a needed paper trail to avoid he-said she-said disputes among opposing counsel. It was heard in late March and remains pending.

A bill disallowing introduction of hearsay evidence at bail revocation hearings by Rep. Alonzo (HB 2674) also received a hearing in March but hasn't been voted out.

In addition, the committee could salvage some good out of the session by passing good Senate bills - Rodney Ellis' three "innocence" bills were just approved by the Senate, e.g. - and killing bad ones like SB 244 which the committee heard last week that would let prosecutors petition to temporarily close off access to search warrant affidavits.

With 35 days left in the session and counting, there's really just a short time left for this committee (and the rest of the Lege) to accomplish whatever they're going to this session. I said at the beginning of the session that the Democratic majority on Criminal Jurisprudence made it one of the D's best opportunities to show they're able to govern - by that measure, they've not acquitted themselves as well as one would hope, but perhaps there's time in the home stretch to make amends.

Nuther TYC Reform Bill Clears House Corrections

The House Corrections Committee passed HB 2807 by Madden, which is a major Texas Youth Commission reform bill, out of committee last night. The chair issued a press release this morning which I reprint here for interested readers:

TYC REFORM BILL PASSED OUT OF COMMITTEE
~Omnibus legislation addresses major concerns and improves quality and oversight~

Austin, TX - Late yesterday evening, the House Corrections Committee unanimously adopted House Bill 2807 by Rep. Jerry Madden (R-Richardson). The legislation improves and strengthens the quality and oversight of the Texas Youth Commission (TYC).

"Over the past few months, we have thoughtfully reviewed the shortcomings that led to the deplorable incidences at the Texas Youth Commission," Rep. Madden said. "House Bill 2807 thoroughly addresses these problems at many different levels and brings this agency back into the trust of the public, parents, and most importantly, the troubled teens of Texas. I would like to thank Vice Chairman Scott Hochberg and the rest of the Corrections Committee for their patience and contributions in solving this difficult issue."

House Bill 2807 significantly reforms the internal structure of the TYC. It establishes an Office of Inspector General giving certified peace officers the power to investigate fraud by TYC employees. An independent Office of the Ombudsman will be established to investigate, evaluate and secure the rights of children committed to the TYC. Additionally, the state will require quarterly reports on internal audits of the TYC.

Juvenile Correctional Officers shall receive 300 hours of training before they undertake guarding duties and will face more rigorous criminal background checks before employment. The TYC will have one guard supervising every 12 youths, and age will be a significant factor when assigning officers to supervise youths.

From now on, courts will not longer send kids to the TYC for misdemeanors. A minimum length of stay shall be given to each youth admitted to the TYC with an indeterminate sentence. Long-term rehabilitation plans, reviewed at least every six months, will be created for each youth and a quarterly report will be sent to the youths' parents or guardians. For the first time, the TYC will be required to create a Parent's Bill of Rights.

An independent Special Prosecution Unit will be created to support local prosecutors when taking the TYC crimes to court and the state shall reimburse them for costs incurred during the prosecution. Independent of this legislation, the TYC is scheduled to be under review by the Sunset Commission in 2009.

The Case of the Missing Data

The Governor put his Homeland Security Director Steve McCraw in charge of gathering nearly 40 million law enforcement records about Texans into a vast, heretofore secret databse, the Texas Observer reported earlier this month, including information about open criminal investigations. So what do you think McCraw did with it?

He gave it to a private defense contractor, Northrop Grunman, who apparently lost it but has supposedly now located it again, the Texas Observer blog reported today. Editor Jake Bernstein has posted this letter from McCraw online offering a convoluted explanation as to why his office didn't know what was going on with the Governor's TDEX database when he testified ten days ago. (See Grits prior discussion of the database.)

McCraw thought the data had been returned to DPS, as Grits reported here, but DPS said it never received the data back nor any evidence it was destroyed. That turned out to be true. McCraw insists that DPS was in charge of the project from start to finish, but Jake points out that also contradicts testimony from DPS that the Governor's political people managed the project. Given that McCraw just got caught in a fib - or at least a mistake that calls into question his competence - not to mention his past record of making demonstrably false public statements about homeland security threats, my money is on DPS as to who's telling the truth here.

Jake lists several unanswered questions that definitely deserve to be addressed before the Lege approves HB 13 - honestly I wouldn't lose any sleep if the bill went down completely.

SEE ALSO: Rep. Jessica Farrar's concerns with HB 13 and the TDEX database.

Farrar: HB 13 won't secure border, risks letting political concerns interfere with law enforcement

Legislation passed out of the House State Affairs Committee last week puts too much power in the Governor's hands and improperly orders local law enforcement to enforce federal immigration laws, said Rep. Jessica Farrar today in a press release. Shevoted against HB 13 when it came out of committee and today called on Chairman David Swinford, the House sponsor, to amend the bill on the floor. Said the release:

Chief among Rep. Farrar’s concerns is that HB 13 creates a State Office of Homeland Security that is placed under the Office of the Governor. "This means that the State Office of Homeland Security is neither a law enforcement agency, nor is it overseen by a law enforcement agency. It is overseen by a political office despite the fact that HB 13 tasks the State Office of Homeland Security with activities that have traditionally been developed, administered, and executed by law enforcement agencies," she stated.

One of the most pressing aspects of this overall concern for Rep. Farrar involves the Texas Data Exchange (TDEx). While HB 13 places TDEx under the Texas Rangers, the Governor's Office of Emergency Management is charged with project management of TDEx. "This means that the Governor’s State Office of Homeland Security continues to have access to and control over the administration of TDEx," she said. In addition, Rep. Farrar noted that the Texas Rangers are already charged with investigating capital murder, helping local law enforcement, investigating official wrongdoing, and overseeing the current Texas Youth Commission investigation with the 112 officers they currently have, and this is where their focus should remain.

Since the Texas Rangers have no experience in administering, developing, or implementing any kind of database, she believes adding this to their list of things to do puts an unfair burden on them. "We have to ask if this is this in the best interest of both TDEx and the Texas Rangers, and I believe the answer is no. The Criminal Law Enforcement Division of the Department of Public Safety (DPS) is charged with maintaining and administering DPS databases. Therefore, TDEx would most naturally be accommodated there, " said Rep. Farrar.

Language in HB 13 requires that local and state law enforcement officers enforce the Federal Immigration and Nationality Act even though Chairman Swinford has repeatedly stated that he did not intend this legislation to force local and state law enforcement officers to enforce federal immigration laws. The language on immigration laws in HB 13 contradicts his statements and supposed intent.

Along with the concern regarding the enforcement of federal immigration law, Rep. Farrar points out that the bill creates a Border Security Council that is charged with deciding how to disburse funds for border security activities. It consists of the director of the State Office of Homeland Security, the public safety director of DPS, and the executive director of the Texas Border Sheriffs' Coalition, which means that the director of the State Office of Homeland Security and the executive director of the Texas Border Sheriffs' Coalition could easily outvote the public safety director of DPS despite the fact that DPS is the state law enforcement arm of the council. In addition, the Border Security Council is charged with implementing performance measures and auditing the programs administered by the State Office of Homeland Security.

The result is that the Governor’s State Office of Homeland Security, which is the entity that administers the border security programs, and the border sheriffs, which are the entities that receive and use the funds for border security programs, decide where the money goes as well as what are and are not adequate results. In other words, says Rep. Farrar, "the same entities receiving the funds for border security are responsible for monitoring and auditing themselves. This is an obvious conflict of interest, and it does not compensate for the fact that a political office will have control over where the money goes and how it is used. I know of no other state-funded agency or body that does not have a second or third party checking in to make sure they are operating appropriately."

Rep. Farrar has repeatedly voiced her concerns regarding the border security programs that the Governor's Office of Homeland Security has already been in charge of. She has called into question their methods of measuring the success of their own operations. "I have seen the reports they use, and they leave a great deal to be desired. No one has been able to fully explain to me how they calculate their statistics, and other law enforcement officials have shared with me that they also question the validity of their so-called success rates. That makes me worry that we are spending a great deal of money on programs that are not going to have a significant and sustained effect on border crime" she said.

Along with the creation of the Border Security Council, HB 13 focuses solely on providing assistance to border sheriffs. "Municipal police forces have been virtually shut out of the programs that so far have been administered by the Governor’s Office of Homeland Security, even though they are charged with the protection of the majority of residents on the Texas border. Municipal police chiefs have voiced their concern to me that they are not included in either the decision-making process involved with these programs in HB 13, nor have they been included in the border security projects that have so far been executed," stated Rep. Farrar.

See prior Grits coverage:

• Don't do it! Perry moves to consolidate intelligence gathering in the Governor's office
• DPS: Open criminal case data given to Northrop Grunman, never received back

Antipathy toward snitching part of American culture, not just hip hop

Reacting to Anderson Cooper's story about snitching on 60 Minutes, Davey D's Hip Hop blog poses an important question:

This writer puts in very harsh words the hypocrisy inherent in law enforcement criticisms of the "stop snitching" meme:

Cooper and the 60 Minutes crew interviewed NY Police Commissioner Ray Kelly and somehow forgot to ask him about the 'No Snitching' ethos that exists within the police department. We didn't hear about the infamous Blue Wall of silence. Nor did we hear about the unsavory practices used by police to get confessions and flip informants. Torture, Blackmail and other manipulations are commonplace. Also we didn't hear about the No Snitching ethos that seems to be practiced by our very secretive Vice President Dick Cheney and Presidential aid Karl Rove.

Though parts of Davey D's polemic reach the level of hyperbole, this is to me a quite-valid point. The "blue wall of silence" among police is a very real thing. What's more, it's unbelievably ironic to see 60 Minutes grilling a rapper about not snitching the same week Alberto Gonzales said he didn't remember or doesn't know in response to questions from senators nearly a hundred times! Do you really think he got that from Cam'ron?

OTOH, a writer at the Economists' blog, Democracy in America, astonishingly found a way to blame the stop snitching meme on the civil rights movement! I wanted to mention it here because it's an original argument I haven't seen articulated so fully:

But the reason people like Cam’ron have elevated this attitude into an entire sense of place in the world is because the Civil Rights movement freed blacks into an America that had just made the upturned middle finger into an icon of higher awareness.

The Great Society sowed the seeds for a black identity based on Being Bad, in treating it as enlightened to pull poor black women out of the job market and pay them to have children instead. Generations of young people grew up in fatherless communities in which full-time employment—i.e. conformity to a long-established American norm—was rare.

Meanwhile, America continues enshrining acrid derision of The Suits as wisdom. It increasingly gets its news from the likes of the Daily Show. T-shirts read “F—k Milk – Got Pot?” “Edge", even of an unfocused, gestural variety, sells in a way that would have made no sense to even enlightened Americans in, say, 1947.

Few things are more American today than maintaining a bone-deep, reflexive cynicism about authority of any kind and cherishing oppositional sentiment as "authentic". The audience for rap music like Cam’ron’s is after all, mostly white. And that means we shouldn’t be surprised when he treats an upturned middle finger as a gesture of prayer—we should look in a mirror.

On the whole I tend to agree with this writer that antipathy toward snitching is not just part of hip hop culture but part of American culture - a tenet that both Davey D and the Economist also agree on, interestingly enough, although from polar opposite political perspectives. See Grits' item on Cooper's story and a roundup of blog reactions that I'll continue to update over the next couple of days.

Dewhurst twisting arms for Jessica's Law, risks fouling his own political nest

At Burkablog, Patricia Kilday Hart has the behind the scenes story of Lt. Governor Dewhurst's arm twisting to get senators to approve "Jessica's Law," HB 8, which as mentioned last week is pending on the Senate intent calendar and may be voted on this week. Writes Hart:

According to several senators, Dewhurst promised to generate thousands of phone calls to senators from supporters of the bill from their districts. And as negotiations continued this afternoon, some speculated that Dewhurst decided against naming his budget conferees until he had secured enough votes for Jessica's Law.

Dewhurst denied he was using the budget conferees as leverage to get votes for Jessica's Law, but if it's true that's definitely playing rough. As for the "thousands of phone calls," I think that support's soft. He may have people on a list because they support legislation against child molestation, but if they're told that prosecutors and victim advocates oppose the bill because it would make victims less likely to report crimes or potentially cause molesters to kill victims, in my experience the debate changes pretty quickly. People want what's best for kids and count on legislators to avoid obvious, unintended consequences.

Many have commented that Dewhurst's 2007 Lege agenda appears aimed at preparing his record for a statewide run, but in the criminal justice arena he's tripping over his own feet. He wanted new prisons so badly the Senate had to take the money from blind children to satisfy his demands. Now he's pushing for a version of Jessica's Law so harsh even Texas prosecutors oppose it.

In both these cases the Lt. Guv is taking issues he pursued for political reasons and turning them into a political albatross. Instead of looking tuff for building prisons he's set himself up to be the guy that takes money from blind kids. Instead of appearing as the defender of children from predators and molesters, his inexplicably harsh stance would risk child victims lives at the expense of his own bloodlust because of an irrational desire to expand the death penalty.

Personally I thought Lt. Gov. Dewhurst looked better as a gubernatorial or senate candidate when the former CIA spook turned millionaire politician assumed a more statesmanlike, centrist stance after 9/11. Somehow the tuffer-than-thou pose doesn't suit him - even if in theory it appeals to GOP primary voters, he isn't carrying it off well.

Corrections Committee considers progressive sanctions

The House Corrections Committee is meeting this morning to consider pending House bills, of which there are many, and also a sole Senate bill on the agenda (SB 166, discussed earlier here) that's an important component of the progressive sanctions regimen designed to avoid new prison building. The Texas Criminal Justice Coalition sent out an email alert with this summary of the bill:

SB 166 by Senator West- relating to progressive sanctions: a safe, cost-effective way to reduce the number of probation revocations to prison -is scheduled to be heard on the House Committee on Corrections.

Technical violations of probation (e.g., missing a probation fee payment or failing to attend a meeting with a probation officer) are a major cause of revocation. These revocations effectively create prisoners out of individuals who commit regulatory infractions, wasting scarce prison beds needed for dangerous criminals.

What does SB 166 do?

• Saves the state millions in incarceration costs by reducing the number of technical revocations and keeping individuals on probation.
• Uses drug tests as indicators of substance abuse and sends individuals to appropriate counseling or treatment facilities
  
• Encourages probation departments to implement progressive sanctions.

This time of year Senate bills in the House have a great chance of passage. You can watch live video of the hearing here.

UPDATE: Bonita White from TDCJ told the committee that about 1/3 of Texas probation departments have already adopted progressive sanctions models - 26 departments created programs to get funding made available under Texas' 2005 budget, and another dozen counties have done so on their own. (See Grits coverage of the 2005 probation riders and an evaluation of the funding showing it reduced probation revocations.) All of the larger probation departments, she said, have already created programs. One quarter of Texas 122 probation departments, said Ms. White said, supervise 75% of Texas' probationers. The bill was heard and left pending. MORE from the Texas Observer blog.

TYC Reform Legislation: The committee kicked out several smaller bills and is now considering amendments to HB 2807, one of Rep. Madden's big TYC reform bills discussed earlier here.

Texas COs to Lege: Don't Build New Prisons

The Corrections Association of Texas which represents prison workers will rally tomorrow morning at 10 a.m. to tell the Legislature, "Don't Build New Prisons," reports The Back Gate, which has details of the event here. Here's a short clip of Sgt. Samuel Davis, head of the Corrections Association of Texas, telling why the Senate and TDCJ should spend more money to staff current prisons instead of building new ones:

Regular readers know the money for prisons in the Senate's proposed budget was taken from the Texas School for the Blind - see another short video posted on YouTube by an ex-offender/activist satirizing the idea that new prisons take money from blind kids.

'Not guilty,' said the jury; 'go to prison,' said the parole board - examining the limits of eyewitness testimony

I'd missed a fascinating investigative story on parole revocations by Chuck Lindell in the Austin Statesman last week ("For prison inmate, Jimmy Page, a 'not guilty' verdict did not mean freedom," April 15), who found that:

Last year, 91 Texas parolees were returned to prison after being charged with a new crime, even though the charges against them were later dropped or they were acquitted in court.

That's a relatively small number, but the idea that anyone goes to prison because of conduct for which a jury found them not guilty, to me, cannot be justified. It happens because juries must find guilt "beyond a reasonable doubt," while at parole revocation hearings only a "preponderance of the evidence" standard (50.1%) must be met.

Juries were America's Founding Fathers' attempt to inject an element of democracy into the criminal justice process - the idea that their decision might be trumped by the myopic bureaucrats at the parole board frankly makes my skin crawl.

In the case profiled by Lindell, a jury acquitted the fellow of murder, but his parole for a previous murder was revoked on the sole word of the investigating officer. A child victim had identified multiple people during different lineup procedures, but the investigator told the parole board the man was "guilty as homemade sin." That was 20 years ago.

The shortcomings of eyewitness testimony in this case point to the need for significant reforms to ensure fairness and accuracy. Too often, it turns out, victims and witnesses simply identify the wrong person. Wrote Lindell ("Who's the real bad guy? Eyewitness testimony makes it hard to tell," April 15):

A growing body of research has improved the scientific understanding of witness testimony, shattering long-held beliefs about the reliability of first-hand observation.

The results have gained credibility as DNA testing has exonerated 198 inmates nationally, 152 of whom were wrongly convicted based on witness testimony, according to the Innocence Project, which pursues DNA exonerations.

Today, it's known that fear plays a key role in impeding the ability to form and process memories, Wells said.

"The natural tendency for all humans is fight or flight from fear. All of one's mental resources get devoted to survival, and forming a detailed memory of things around you does not help you survive," Wells said.

Though conventional wisdom would suggest being stabbed would produce an indelible memory of the attacker's face, "in fact, it's the other way around," Wells said. "Fear provides very, very unfavorable conditions for forming any kind of reliable memory."

Youth is another factor: "Kids do better if they are trying to ID another kid than an adult," Wells said.

Studies show that young children do relatively well in recognizing a culprit in a photo or physical lineup.

But in lineups that contain no culprit, they also are much more likely than adults to choose a suspect anyway.

Such flaws in eyewitness testimony, especially by kids, are one of the main reasons I oppose bills that would allow in children's hearsay testimony and give the death penalty on child molestation charges. There have simply been too many cases where such testimony turned out to be mistaken; more checks and balances are needed to ensure innocent people don't receive society's harshest punishments.

Via Tom Kirkendall, who thinks the parole "process is ripe for a constitutional challenge."

Mentally ill kids warehoused at TYC

Just like in the adult prison system which warehouses tens of thousands of mentally ill offenders, the Texas Youth Commission has struggled for years with how to manage mentally ill youth, who make up between 38-50% of incarcerated kids according to an article by Lisa Sandberg in this morning's Houston Chronicle ("Mentally ill posing challenge for TYC," April 22).

Reports Sandberg, of those identified as mentally impaired, only 17% were committed to TYC for violent felonies, and another 3% for violent misdemeanors. Others more closely fit the profile of a young man who has been on suicide watch at TYC since the day he arrived there, who

had two brushes with the law, including taking his father's car without permission, before being sentenced to TYC last year for driving without a license and violating curfew.

It's almost unfathomable to me that those offenses would earn incarceration in a youth prison - all of them, if truth be told, I committed myself as a teenager. But it's likely the judge chose that option because the locals couldn't handle the kid's real problems. The Chronicle reported that "Psychiatrists hired by TYC diagnosed him with major depression, bipolar and schizoaffective disorders and drug dependence."

For many such kids, incarceration makes their condition worse and therefore makes the public less safe when they're finally, inevitably released, say those in the know:

Until she resigned under pressure last week, Corrine Alvarez-Sanders, TYC's assistant deputy executive director for rehabilitative services, had worked with young inmates for 15 years and said too many who are mentally ill don't get appropriate treatment and leave in worse condition than when they arrived.

Secured lockups are appropriate for some mentally ill offenders with violent tendencies, but every one of those would be better served in smaller residential treatment centers, she said.

"I don't want to say that all of our facilities are producing outcomes that are worse. But what's clear to us is the interventions don't match the specialized needs that are present," Alvarez-Sanders said.

All too often, poorly trained staff extend the TYC terms of mentally ill inmates, confusing a mental health issue with a bad attitude or anti-social behavior, she said.

The adult system faces same issue of warehousing the mentally ill, not just TYC. This is how society has chosen to handle mental illness across the board - through the criminal justice system. To my mind it's an awful disgrace.

Wiretapping de-regulation a big waste: Texas judges approve few warrants for phone surveillance

I've written that Texas' proposed expansion of wiretapping authority is a solution looking for a problem, and here are the stats to prove it. SB 823 by Whitmire/Riddle would give the state's six largest police departments - Houston, Dallas, Fort Worth, San Antonio, Austin, and El Paso - authority to operate pen registers and cell-phone wiretapping equipment. Each department under the bill would be authorized to purchase their own wiretapping equipment and train their own officers to use it.

But according to wiretapping statistics reported annually to the Department of Justice, four of these six departments did not engage in a single wiretap between 1998 and 2005, the last year for which statistics are available. In no year did Texas judges approve more than five wiretaps, and a couple of years none were authorized in the entire state!

So why should local taxpayers in these six cities pay for training and equipment when wiretapping is so rarely used in Texas? Right now the Department of Public Safety manages all wiretaps statewide, and given the low volume involved - and the fact that most big city PDs aren't using wiretaps - it doesn't make a lot of sense to create redundant capacity at these six agencies.

Here are the last several years' statistics reported to the Department of Justice about Texas wiretapping:

Wiretapping in Texas
(1998 - 2005)

Year	No. of Wiretaps	Counties
2005	4	Burleston (2), Starr, Fort Bend
2004	0
2003	4	Harris (3), Bowie
2002	2	Bexar, Lamar
2001	1	Lubbock
2000	0
1999	4	Tom Green (3), Shelby
1998	5	Nacogdoches (3), Potter (2)

Source: See Table 2 under these annual USDOJ wiretapping reports for Texas stats:

• 2005 Report
  
• 2004 Report
• 2003 Report
• 2002 Report
• 2001 Report
• 2000 Report
• 1999 Report
• 1998 Report

Want new prisons? Why not just take the money from blind children?

Taking a cue from reports at the Texas Observer blog and Grits, this 90-second YouTube submission from a former offender turned activist offers a safe-for-work satirical look at the Texas Senate's plan for taking money from the Texas School for the Blind to build new prisons:

Sins of Commission

Two TYC-related updates:

Reporter Nate Blakeslee, who first broke the story of the alleged sex scandal at the Texas Youth Commission in the Texas Observer, has a feature on the topic in the May issue of Texas Monthly titled "Sins of Commission" - a free media preview of the story is available here. Good job, Nate!

And speaking of "sins of commission," state Rep. Harold Dutton, the Chairman of the House Committee on Juvenile Justice and Family Issues, was arrested and charged with a DWI in Austin on Wednesday night. See the Houston Chronicle's coverage. Ironically, TYC has yet to determine whether employees who've committed similar offenses may continue to work there. Even before news of Dutton's arrest was made public, a Grits commenter sagely suggested:

I wonder how many of the legislators would be able to work in TYC with this new policy in place? They can run our government and our lives but may not even be able to work a picket in TYC?

Perhaps Dutton's legal dilemma will help convince legislators there are dangers in going further down this path.

Lots of criminal justice legislation moving at the Lege

Having begun a review of the week's criminal justice action at the Texas Legislature here and here, let's wind up the analysis with summaries of legislation moving through the process this week:

Not so enhancing
A whole slew of criminal penalty increases, known euphemistically as "enhancements," have passed in various House and Senate committees - particularly House Criminal Jurisprudence and Senate Criminal Justice. I hope someone in the leadership turns off the spigot before all these pass and potentially ruin the already sysiphian efforts to avoid new prison building. More this weekend on the subject of enhancements.

The Governor's database gets committee nod
Kuff has links and updates on HB 13's passage from committee - that's another big homeland security bill from the Governor that includes the TDEX database exposed by the Texas Observer. See prior Grits coverage here and here.

Senate to decide sex offender statutes
HB 8 ("Jessica's Law") and several other sex-offender-related bills (SB 5, which was the Senate version of Jessica's Law, and also SB 78 and SB 1740, see StandDown's coverage) are up on the Senate intent calendar for next week, meaning they can be heard at any time the bill sponsor tells the chair he has the votes. Sen. Bob Deuell is carrying HB 8 in the Senate.

Needle exchange to get Senate floor debate
With Sen. Deuell carrying perhaps THE feel-good penalty enhancement of the session in Jessica's Law, perhaps his fellow senators will find themselves in a mood to support his SB 308, which is also on Monday's intent calendar, allowing local governments and nonprofits to operate needle exchange programs. Texas Monthly messengered around an influential article on the subject last month. This legislation garnered 17 votes on the Senate floor in 2005, three short of the 20 needed at the time. But this year Sen. Deuell, who is a medical doctor, secured the backing of Health and Human Services Chair Jane Nelson and also Kyle Janek, a Galveston surgeon, neither of whom had supported the bill when Sen. Jon Lindsay carried it in previous sessions. With their support and Dr. Deuell's enthusiastic advocacy on both medical and religious grounds, this bill could pass the Texas Senate next week for the first time ever.

Finally, some actual innocence legislation
After watching the Lege jacking up penalties for the most severe crimes to the most banal, then seeing efforts in the House to remove restrictions on unreliable evidence, I'm glad to see some legislation responding to the rash of DNA based exonerations in Dallas and elsewhere in the state. As Lisa Falkenberg noted recently in the Houston Chronicle, there are almost certainly more cases elsewhere in the state that simply were never discovered. Three bills on the Senate intent calendar would take first steps toward addressing the problem, though wouldn't go as far as I'd like. I described the bills here and their hearing here. Bottom line, SB 263 creates an new Innocence Commission, SB 262 increases restitution to people who are wrongfully convicted, and SB 799 creates an interim study commission to develop best practices for eyewitness identification procedures.

House hears drug courts and stronger probation
Finally looking forward to next week in the House, on Monday HB 530 by Chairman Madden expanding the use of drug courts (discussed here and here) will be heard on the House floor, and Madden's main probation bill HB 1678 (described here) will be heard on Tuesday. Much of HB 1678 was part of legislation vetoed in 2005 by Gov. Perry, but this year a compromise has been reached that will supposedly earn the Governor's support.

Anderson Cooper's 60 Minutes 'snitching' segment looks pretty lightweight

UPDATE HERE

Via Rush Limbaugh and Drudge, I discover that CBS News will tackle the complex subject of informants this weekend on 60 Minutes, but reporter Anderson Cooper appears to be taking the most facile possible tack. Commenter dadpon at the 60 Minutes website sums up my opinion of what's been previewed so far of Anderson Coopers feature this Sunday on the so-called "Stop Snitching" movement:

the best way to win an argument is to find the dumbest person to represent the opponent, to make yourself sound superior

That, Mr. Cooper has certainly done, in this case by interviewing a rapper named Cam'ron with more gold than sense who announces that he would not snitch on a serial killer if he knew one were living next door! (You can watch a snippet of Cam'ron's interview and see Cooper's "reporter's notebook" in the right hand column of this page.) CBS' website describes Cooper's story as a "report on how the hip-hop culture's message to shun the police has undermined efforts to solve murders across the country."

Well, that's part of the story, but as regular readers of this blog know, certainly not all of it. If Cooper ever Googled the word snitching, then he found two Grits posts on his first screen:

• Snitching Undermines Justice Institutions, and
• A Snitch In Time

Just reading these two items alone would provide a broader perspective than presented in the overview. The first of the two bullets above links to and quotes from an academic article by Loyola Law School Prof. Alexandra "Sasha" Natapoff, who in my opinion is perhaps the nation's premier thinker on the subject of confidential informants. (See her Slate article, "Bait and Snitch.") If Cooper didn't interview Natapoff, to me this isn't a serious report but is the national news equivalent of local "if it bleeds it leads" coverage.

Clicking around just a little further on Grits from those stories, Cooper would have discovered a recent gathering of experts in Atlanta where he could have drawn more able spokespersons than Cam'ron, including from among the hip hop set. There are many more articulate critics available than this guy to describe the implications of the stop snitching phenomenon. We'll see what the full story looks like, but it'll be disappointing if it contains no more depth than the previews lead one to believe.

BLOGVERSATION:

• The Smoking Gun: Cam'ron talked to cops after playground brawl in 1999
• A Public Defender: Two polls for attorneys about snitching
  
• Too Sense: Cam'ron is a fool who can't rhyme, but does he have a point about the police?
• KO: "One of the dumbest, most asinine quotes I've ever heard in my life"
• Tomsdisch: Cam'ron is "following the example of Bush and Gonzales themselves. Gangland ethics have now officially replaced morality as we once knew it. Honesty is not the best policy; it's not even a needful imposture."
• The McCarville Report Online: Hip Hop Culture Shuns Police Help
• Celebrity News and Gossip: Cam'ron's 'Code of Ethics'
• Gothamist: Cam'ron believes in Omerta
  
• Nick DiPaolo: "First of all, the serial killer would move out"
• My Rose Colored Glasses are Cracked: Snitch or Whistleblower?
  
• The House of Xanadu: Cam'ron & Snitching
  
• Great Googily Moogily: Cam'ron earns his useful idiot badge
• Freedom Eden: Cooper interviewed wrong person
• Ethan Brown: 60 Minutes Puts Hip Hop on Death Row
• Ordinary Childhood: Not snitching part of American culture, not hip hop
• Tell 'Em Why You're Mad, Son: That's not sntichin, that's being a witness
• Psyked: These niggas piss me off
• The Legendary Mastermind: Rappers address media backlash
  
• The Hutchison Report: A rapper who might not snitch on Cho
  
• Democracy in America (The Economist): The Great Society sowed the seeds for a black identity based on Being Bad
• Awakened: Cam'ron didn't invent the code of silence
  
• the 'd' spot: "Don't Snitch" street code is killing black kids
• Cigars, Donuts & Coffee: Don't snitch, live in the hood - it's their choice
• Mirror on America: The Black Minstrel Show Continues
• XXL Mag: Most of Your Favorite Rappers are Snitches
• RBG Street Scholars: How Hip Hop Destroyed Black Power
• The Mo'Kelly Report: Prison culture poisoning kids minds
• Crazy Pellas: 21 Questions for Cam'ron
• The Roaring Twenties: I wanted to be on Anderson Cooper's side
  

See prior, related Grits posts:

• Don't Snitch, Jack
• Snitching on Good Friday: Rethinking Judas
• Is Grits 'Pro-Snitch'?
• Hip Hop, Snitches and Witnesses
• A prison guard's aversion to snitches
  
• Dallas fake drug case shows why many distrust informants
• Federal memo tells judges: Hide records on snitches
• Cop: Snitches keep escort services in business
• Feds tolerated bank robber snitch for decades
• 'Operation Trick or Treat' turned out to be snitch's trick
• Sample motion requesting informant reliability hearings

Texas Solicitor General: 'A great many people' suffer from mental illness in prison

Arguments at the US Supreme Court over capital punishment this week shed new and unflattering light on the status of the mentally ill in Texas prisons. Doc Berman links to the transcript from oral arguments in the Panetti case, and predicts the decision will have more symbolic than precedential value. However he highlights this telling quote from Texas Solicitor General Ted Cruz that merits Grits readers' attention:

In our prisons there are unfortunately a great many people suffering from some degree of mental illness.... [An extreme] sort of delusion unfortunately is not uncommon on death row and it is not uncommon in prisons for paranoia -- the testimony of one of Panetti's experts, Doctor Conroy said, quote, "The major portion of our population in our in-patient units are diagnosed with some form of schizophrenia."

Well at least the state's attorney isn't denying it! As mentioned previously, three in ten Texas inmates are past clients of the state's indigent mental health system. The April 2007 Harper's Index contains some telling statistics that let us know that condition isn't unique, but only manifests an extremist version of a national trend:

• Percentage of American adults held in either prisons or mental institutions in 1953 and today, respectively: 0.67, 0.68
• Percentage ofthese adults in 1953 who were in mental institutions: 75
• Percentage today who are in prisons: 97

So while the Supremes focus on whether we should execute the insane, it's becoming increasingly obvious to me that incarcerating the mentally ill is a major unaddressed civil rights dilemma, both in Texas and pretty much everywhere else in the country.

More on Panetti from the StandDown blog here and here, and from SCOTUSBlog here and here. CrimProf blog reports on the UT Austin Capital Punishment Clinic's participation in the case.

Expanding use of questionable evidence

Two bad bills aimed at allowing questionable evidence into court in sexual assault cases passed out of the House Criminal Jurisprudence Committee this week and are headed to the House floor. HB 1035 by Debbie Riddle (discussed here) would allow hearsay evidence in more cases with young victims, raising the age where hearsay evidence may be admitted to anyone under 14 (because we all know 13 year olds don't lie). And HB 1264 by Chairman Aaron Pena (discussed here) would allow evidence of prior bad acts to be admitted in sexual assault cases.

I don't get this - Texas has seen a rash of wrongful convictions uncovered, but rather than pass legislation that would reduce the number of innocent people convicted, these bills are essentially what I've called "anti-innocence" initiatives, proposals that make it more likely that flawed or biased testimony generates a wrongful conviction.

Meanwhile, the Senate has supposedly reached a deal on HB 8 (Jessica's Law) and it has been placed along with several other pieces of sex offender legislation on the Senate intent calendar, meaning they could be heard at any time starting next week. So assuming some version of Jessica's Law passes, these other bills coming out of Criminal Jurisprudence make it more likely that Texas' most severe sentences will be used against innocent people.

UPDATE: A Public Defender has written about the "tender years" exception to the hearsay rule, and considers the Texas bill "dangerous," see:

• Tender years exception to hearsay
• Tender years II
• Tender years III

Wiretapping, probation, TYC highlight busy Lege week

Man, the Texas Legislature is now moving through legislation fast and furious as members begin to realize there are only 40 days left in the regular 80th session. I'm not tracking every criminal justice bill, by a longshot, but even so it'll take two posts to highlight all this week's important legislative action, so let's get started:

Deregulating Wiretap Authority
This is a always sleeper issue - it's one that no particular group works on so it can easily slip through the cracks. But major changes are being proposed this year that could alter who oversees wiretapping in Texas for the first time since the 1930s. The Department of Public Safety historically manages every wiretap in the state, and only for a handful of clearly prescribed crimes. This year, though, everything is up for grabs.

After 9/11, the Texas Homeland Security Task Force considered whether Texas should expand wiretapping authority, but chose not to recommend it to the 78th Texas Legislature, declaring that Texas should not take steps that might infringe on civil liberties. I don't know what's changed, but now four years later, two bills are moving that amount to the same wishlist of items requested by law enforcement after the 9/11 attacks: Letting big departments operate wiretaps (right now only DPS can do so), allowing "roving wiretaps," and expanding the types of crimes where covert phone surveillance can be used.

SB 823 by Whitmire/Riddle is the bill that would allow cities over 500,000 (those are Austin, Dallas, El Paso, Fort Worth, Houston, and San Antonio) to operate their own pen register devices, which "capture real time outgoing telephone numbers dialed from a target telephone. Under current law, only specialized Department of Public Safety (DPS) investigators are authorized to own or operate these devices, and only under a court order." (See Grits' prior discussions here and here.) This bill has already passed out of the Senate and was given the thumbs up by the House Criminal Jurisprudence Committee this week.

Whitmire's staff says these largest departments are professional enough to handle the pen registers without incident, but that sure wasn't true, for example, at Houston PD's crime labs, or when the Dallas PD and their informants set up innocent people using pool chalk. I trust DPS a lot more than I do the local yokels, even in the bigger cities. This is a solution looking for a problem - there's just no good reason to deregulate this authority. Even so, the bill obviously has legs and could appear on the House floor very soon - time to contact your state representative on the matter if you oppose the bill.

Meanwhile, the Senate's version of the bad homeland security bill I mentioned over the weekend has passed and will soon receive a hearing in the House Defense Affairs Committee. (See MSM coverage of SB 11.) For reasons already mentioned, this one worries me even more than Whitmire and Riddle's bill, inviting a number of unintended consequences. See my previous discussion for details.

UPDATE: Not so much a "sleeper" issue after all - SB 11 gets coverage in Business Week.

Strengthening Probation
The House Corrections Committee passed HB 926 and HB 927, discussed previously here, and also HB 3200, see here, which adjusts funding schemes for probation departments to make them rely less on per-offender stipends and more on funding progressive sanctions and programs that help offenders succeed. Next stop for these bills is the Calendars Committee, then the House floor. Chairman Madden's big probation bill, HB 1678, discussed here, is already scheduled for a floor debate on Tuesday.

Meanwhile, the Senate approved SB 166 by West, discussed here, which complement's Maden's funding bill to authorize TDJC to issue grants to probation departments instead of only paying them per offender. I already mentioned SB 1909, another probation strengthening bill that cleared the Senate this week.

On the House floor, Madden's HB 1610, discussed here, received approval this week - that bill would plug a loophole that allows judges to get around legislative intent that low-level drug offenders get probation and treatment instead of jail time. This will particularly help with overcrowding problems at the Harris County jail.

Monitoring Jail Standards
Speaking of jails, a bill from Rep. Turner I failed to mention that the House Corrections Committee this week approved HB 2699, which would allow the Texas Commission on Jail Standards to charge counties a fee to pay for a "jail monitor" when their jail is out of compliance. This takes on added significance because recently a significant number of Texas jails have been consistently failing their annual inspections. In addition, the Corrections Committee approved Rep. Coleman's HB 2526, discussed here, that would create a research base at one of the state's academic health science centers to study topics related to corrections and public health in jails and prisons.

TYC May Get Inspector General, Ombudsman
A bill that will create an Inspector General at the Texas Youth Commission, HB 914 by Madden, discussed here, passed the full House this week, while freshman Boris Miles' HB 3701 creating an ombudsman's office for complainants won approval from the House Corrections Committee. Corrections also heard HB 2807 this week which would disallow counties fron sentencing youth to TYC for misdemeanors (see MSM coverage). The big TYC news, though is that Sen. Hinojosa's reform bill SB 103 (discussed here) passed the full Senate today and is headed over to the House. That bill looked ambitious before the big scandal broke - now most at the capitol view it as a partial solution. Things can change really quickly under the pink dome.

Religious youth ministries should reach out to kids with incarcerated parents

I thought this artwork was an interesting choice for a religious Texas youth camp:
The event isn't aimed at kids of incarcerated parents and really doesn't have anything to do with prison as far as I can tell (see their promo video on YouTube), but it got me thinking. I went to church camp as a kid, and for the most part remember the experiences fondly. A quick tour around the web shows quite a few churches sponsor them still, typically with parents paying $160 - $185 for a week of peace and quiet while their kids are gone out in the woods.

I wonder if many churches offer scholarships to such events for children of incarcerated parents? It seems like it'd be a good idea, both to reach out to kids who may not get such opportunities and also as a first step toward integrating youth ministries with prison ministries. I get the impression that a lot more churches focus on ministering to the ex-offender once they're out than they do their families while they're in - IMO both are important.

UPDATE: Longtime prison rights activist Joan Burnham lets us know in the comments:

There is a camp program that is specifically for children of incarcerated parents, sponsored by the Episcopal Dicoese of Texas, called Camp Good News at Camp Allen, Navasota, TX. (July 29-August 3,ages 10-15). It is an outstanding program and has been operating for several years. There is no charge to families. I worked with the program while the ED of TIFA and continue to do so in my current role (chair) of the Austin/Travis County Reentry Roundtable. Check out the TIFA website (www.tifa.org) for more info/application form and/or Dr.Ed Davi, Camp Coordinator at (936) 291-3153.

TYC to fire 66 employees with felonies; 400 with misdemeanors await news of fate

This just isn't right - now we're taking out the Texas Youth Commission's problems on people who had nothing to do with the scandals that first placed the agency under the microscope.

A saddened, long-time TYC employee who will apparently be fired under the new policy forwards me the news, as revealed in this morning's Austin Statesman ("Firing of felons from Youth Commission resumes," April 19), that the new administration will fire everyone at the agency with felony convictions, no matter what they are or how long ago they occured.

Original estimates of the number of ex-felons employed at TYC were over 100, but somehow that number has now declined to 66, says the Statesman. Another 400 or so have Class A or B misdemeanors, which employees were recently required to report - Kimbrough has said he's not yet made a decision whether they'll get to keep their jobs.

This is an example of pols desperate to appear as though they've done SOMETHING, regardless of whether it helps or has anything to do with the described problem. What happened out in West Texas was horrible, but these 66 had nothing to do with it. What's more, those who allegedly did something wrong didn't have felony convictions, so they wouldn't have been affected by this policy.

The Statesman reported that "employees will continue to get pay and benefits for 30 days and have a right to appeal the terminations to the State Office of Administrative Hearings."

This makes no sense except as a PR stunt. TYC already can't hire or retain employees - why fire dozens who didn't do anything wrong? All this does is worsen morale and exacerbate staffing problems, which are the root cause in the recent rise in abuse rates, making kids less safe.