More waiting on TYC pepper spray lawsuit outcome; Austin Chronicle piles on TYC media disapprobation

The Texas Youth Commission was back in court today over pepper spray, but hadn't yet come to an agreement with Advocacy Inc. and Texas Appleseed. Austin District Judge Gisela Triana gave the parties until Monday to come to an agreement, reported the Statesman on its blog.

Meanwhile, the Austin Chronicle has a new story out on TYC declaring there is "Little evidence of reform at state schools." The Chronicle's Richard Whittaker reports that:

While Senate Bill 103, the TYC reform bill, was crafted to protect youth inmates, it was also supposed to create a safer working environment for staff. But the changes only provided the tools for reform. Five months later, TYC is massively understaffed, with almost a third of all posts empty. "We're trying to get as many qualified people as possible into training," said TYC's director of public affairs, Jim Hurley. "We're down in numbers considerably from where we want to be, and I can't give you a hard and fast deadline. It's going to take time."

The Legislature ordered TYC to hire an additional 516 juvenile correctional officers, one for every 12 inmates, plus teaching and administrative staff. However, the money to hire them did not become available until Sept. 1, meaning TYC hadn't even hired its four new recruiting officers until Nov. 1. As of Oct. 23, TYC had 3,984 employees but 2,024 unfilled positions, including 382 of those new juvenile correctional officers. Even when those positions are filled, there may not be enough staff. The Ameri­can Correctional Association, a prison accreditation body, sets no standards for juvenile inmate-officer ratios but works facility by facility and has yet to assess the reformed centers.

The shortfall means facilities are working staff longer and harder. "You have frustrated staff, tired staff. They dread coming out there," said Love. Some, afraid of being fired if they complained, would call in sick. "You have people out there for whom this is their sole income, so they don't make waves. The call-ins are their only way of striking back." According to Love, this means some shifts at Crockett struggle on five or six corrections officers, less than half the number recommended. The new hires may not solve the problem, since they are just replacing staff who are on medical leave or quit. "It's a revolving door," Love said.

TYC employees are supposed to work a 40-hour week, with eight-hour shifts and five days on, two days off. But with staff levels so low, Love said, it's not uncommon for officers to work five 12-hour shifts and only get one day off. Staff pulled a combined 116,890 hours of overtime in February, a figure that shrank to 30,487 for September, but there's a catch. They weren't being paid for all of it. In Septem­ber alone, TYC paid out $735,933 in overtime, equal to 55% of the normal annual sum.

TYC spokesman Hurley said the cash wasn't the issue, just further reform of the system. "This wasn't about budget," he said, "but the fact that they didn't have any institutional controls in place to ensure that all the overtime being worked was necessary. Since we couldn't ensure that, we suspended paying overtime, but this is almost surely a temporary measure." He said that hours worked were still being tracked, but for Love, that's not enough. "That's my money they're earning interest on," he said.

Privatize the death penalty? Victims who "need killin'," or why probation for murder may not always be such a bad idea

Last week's Dallas News series on murderers sentenced to probation left me at a bit of a loss concerning what message to take from the story overall. An impressive piece of paper-trail journalism, Dallas News reporters Brooks Egerton and Reese Dunklin identified 120 people who'd received sentences of probation for murder - either from a plea deal or a jury verdict - between 2000 and 2006.

Unfortunately, the series suffered from a bit of a breathless tone that invited readers to conclude, "Can you believe Texas is soft on crime? We should get tuffer!" To me, that's decidedly not the conclusion I draw from the evidence they've presented, but what if any larger lessons may be drawn from their work? Houston defense attorney Mark Bennett's observation on the subject IMO hits closer to the mark:

The truth is that Texas's propensity for killing its citizens, and its leniency with some murderers, are both expressions of the a single principle. Texas doesn't execute murderers to show its regard for the value of life; it does so because some people (as the parable says) need killing. Sometimes the guy who -- in the eyes of Texas -- needs killing is the accused, and sometimes he's the complainant.

"He needed killin', and my guy was the guy to do it" has long been a viable defense in some Texas murder cases. These are cases in which the State often couldn't secure convictions despite being technically murder; it'll be even less able to secure convictions in the future from juries that know that, if they convict, prison will be the only option.

That strikes me as an accurate assessment of the general public's attitude toward intentional killing in Texas, whether by the state or by individuals. Looking at specific cases analyzed by the News, that analysis explains quite a few of them. As I wrote in a "first impression" about the series, it's possible to:

identify several recurring situations where murderers frequently received probation: a) Prosecutors had weak or circumstantial cases and the defendant may not have done it, b) the defendant was guilty via the "law of parties" but didn't actually kill anyone themselves, c) the defendant was elderly, sick or incapacitated to the point where they were no longer a threat, and d) the victim was a worse person than the murderer and basically "needed killin'," so juries sympathized and gave the defendant another chance.

While Dallas News columnist Gromer Jeffers identifies what's wrong with reason A for granting probation in murder cases, who thinks reasons B, C, or D are not sometimes justified? Following Bennett's lead, let's think more closely about category D, in particular, the ones whose victims "needed killin'." Consider the case of Synnissa Gabriel who murdered Hosia Abdallah, her estranged boyfriend:

She told police in 2005 that Mr. Abdallah had stalked her and vandalized her home, in violation of a protective order. Then she tracked him down and shot him several times.

Heath Hyde, who prosecuted the case, said he offered a deal because the victim had a long history of violence against women. That made it unlikely jurors would sentence his killer to prison, he said. Defense attorney Nancy Ohan described her client as "the classic case of the battered woman ... there was a definite mental break."

So a battered woman who continued to be stalked and harassed in violation of a protective order finally took matters into her own hands and gunned down her assailant. Why'd she get probation? Because prosecutors believed jurors would conclude the victim "needed killin'" - in other words, that justice had been served by the defendants' actions. It may not be true under the law, but in the gray-area balancing act jurors do in their own minds while making life or death decisions, it's true in point of fact.

In some other cases, defendants had possibly viable self-defense claims or otherwise could credibly portray themselves to a jury as protecting themselves. Not all the cases find a sympathetic killer and a much-scarier victim, but when they do, is it wrong for a jury to sympathize with the defendant?

Isn't that what juries are about, letting members of the public come to their own conclusions about what constitutes justice?

I've described before my own mixed feelings on the death penalty: It's not that I don't think there are bad folks out there who "need killin'," I just don't trust the government's ability to distinguish between them and the rest of us. (If Texas hasn't already executed an innocent person, at the rate we're going it's only a matter of time.) Bureaucratic mistakes that we tolerate at the drivers license bureau are unacceptable in deciding whether someone should live or die, so I'm troubled by placing such an irreversible decision in the hands of government bureaucrats, even ones with "J.D." after their names.

The "needed killin'" defense and the possibility for receiving probation for murder (after Sept. 1, prosecutors can still plead to deferred adjudication, though juries may no longer grant probation) basically recognize, pragmatically, that many Texans hold similar sentiments, that some murders occur amidst shades of gray, and that the prosecutor may not always be right just because they work for the gub'mint.

From a public interest perspective in these cases, at least in a pro-death penalty Texas jury's mind, the existence of the death penalty assumes it is possible for intentional killing to promote justice. If you believe that (and capital juries must be "death penalty qualified," so sometimes they are REQUIRED to believe it even to serve), you might well believe, upon hearing the facts, that the victim had it coming, as prosecutors feared they would in Ms. Gabriel's case.

In that sense, the punitive mentality that supports the death penalty may also be a two-edged sword for prosecutors in ways that aren't very often discussed. Texas juries may well decide it's just fine to essentially privatize the death penalty, to decide that the killer's vigilante justice was the right justice and give the defendant a pass. (The mentality perhaps harks back to Texas' frontier days, when Mexican alcaldes assessed penalties for theft at four times the amount stolen, but left justice for murder to the friends and family of the deceased.)

The more I think about it, the idea of defendants getting probation for murder on a case by case basis for the reasons described in the series really doesn't bother me save that, upon reflection, I think the Legislature should revisit the question to reinstate juries' authority to give that punishment.

The missus thinks I'm going to "get in trouble" for writing this, but I think, as a practical matter, I'd prefer a death penalty privatized on a case by case basis at the discretion of 12 jurors than operated by the government itself. What do you think?

More from the Dallas News:

• Probation for Murder: The Series
  
• Reporters discuss the story
• Gromer Jeffers: Probation tactic renders Watkins less a crusader
• Dallas News Reader Forum on the series
  

BLOGVERSATION:

• Defending People: Here and here
• The Defense Perspective
• Simple Justice
• Greg's Opinion
• Concurring Opinions, and a response
• Over the Cliff, Under the Rocks
  

NY Times: Stop the "Rush to Criminalize Children"

Thanks to UNLV Prof. Bill Bush for pointing me to this editorial in The New York Times, "Raising Children Behind Bars," depicting a national trend that accurately describes what's happened here in Texas. The efforts:

to remake often barbaric juvenile justice systems, ... [u]nfortunately, ... have been steadily rolled back since the 1990s when states began sending ever larger numbers of juveniles to adult jails — where they face a high risk of being battered, raped or pushed to suicide.

The Times called it "incredible" that kids as young as ten were sent to youth prisons, and that's legally possible in Texas, but not common - the number of ten year olds in TYC is usually in the low-single digits or sometimes zero, depending on when you check.

Twenty-five years ago all youth offenders in Texas were handled through county jails, just like anyone else who's arrested. However on this Texas deserves credit. Now, all 254 counties have somewhere to take juvenile offenders (though for the most remote rural counties that means a contract bed in a county more than 100 miles away). It sounds like from the Times editorial that's not the case in many other places.

If we are to believe the Times' estimate that "as many as 150,000 young people under the age of 18 are incarcerated in adult jails in any given year," I'll bet relatively few of those (except perhaps some 17 year olds) are in Texas.

As the national paper of record, the Times lays the blame for expanding juvenile prisons at Congress' feet:

The rush to criminalize children has set the country on a dangerous path. Congress must now reshape the Juvenile Justice and Delinquency Prevention Act so that it provides the states with the money and the expertise they need to develop more enlightened juvenile justice policies. For starters, it should rewrite the law to prohibit the confinement of children in adult jails.

Perhaps the JJDPA played a role, but in Texas our own pols bear most responsibility for the biennial expansion of newly criminalized or more harshly punished juvenile and adult conduct. After all, this is a state where some officials think a sixth grade girl writing "I Love Alex" on a bathroom wall deserves felony charges.

Changing federal law will help, but Texas' own state law is the main source of TYC's growth in the past 15 years, just like the ongoing decline in Texas' youth inmate population similarly results from recent changes in state law and agency policy.

"DNA Blues Ball" in Dallas Raises Money to Identify, Exonerate Innocent People in Prison

Since Kathy will be out of town over the holiday, I'm thinking I'll head up to Dallas Saturday night to attend the 2007 DNA Blues Ball, a benefit for the Innocence Project of Texas described thusly:

The Innocence Project of Texas invites you to attend the 2007 DNA Blues Ball, an evening of music and enlightenment to benefit the wrongfully convicted.

Since 2001, 13 men have been exonerated in Dallas County after DNA testing conclusively proved their innocence. The proceeds of DNA Blues Ball ticket and merchandise sales will directly support the efforts of the Innocence Project of Texas in our mission to seek justice for those who have lost their freedom at the hands of wrongful convictions.

It looks like a great musical lineup. And you probably won't find that many DNA-exonerated men in the same room in many other settings; that alone deserves commemoration. Consider attending if you're in the Dallas area or donate online as part of their Justice Delayed fundraising campaign.

Chief Counsel for the Innocence Project of Texas is a long-time friend of the blog and crackerjack Amarillo-based attorney, Jeff Blackburn, who also was the lead barrister representing the ultimately freed and pardoned clients in the notorious "Tulia" drug stings.

More waiting for TYC pepper spray lawsuit resolution

TYC's day in court Monday over its moving-target pepper spray policy sounds somewhat anticlimactic. Instead of ruling herself, Austin District Judge Judge Gisela Triana ordered the parties to come to an agreement by Wednesday, when supposedly push will finally come to shove. (In the interest of full disclosure, Triana is a former campaign client of mine from back in the day, though I've never communicated with her about this case.) Here are a few excerpts from the MSM coverage:

"Pepper spray used more liberally on kids," Mike Ward, Austin Statesman, Nov. 20

"Incarcerated teenagers in the Texas Youth Commission system are getting pepper-sprayed by guards when they refuse to follow routine orders and while on suicide watch, not just when they pose a threat, a Travis County court was told Monday."

"pepper spray is being used a lot more than just a few months ago. So far this year, just over 1,200 reports of spraying have been logged, compared with only 196 last year. In June, a month before Youth Commission officials allowed broader use of pepper spray to control misbehaving or noncompliant youths, 66 cases were reported. In October, 207 spray reports were logged."

"Suit says TYC breaking pepper spray rules," Lisa Sandberg, Houston Chronicle, Nov. 20

"'Pepper spray is the high-tech equivalent of old-fashioned corporal punishment,' Steve Martin, a longtime expert on corrections who has been hired by the advocacy groups, said outside the Travis County courtroom. He said it was ludicrous for the agency to suggest that pepper spray did not cause injuries. 'It causes intense burning and pain and panic,' he said.

Regrettably, it doesn't sound like the court discussion got too deep into the who, what, when and why of TYC's non-compliance with the agreed order. That's too bad, but advocates may still get their chance to go back to court if TYC won't agree to a reasonable policy that they'll stick to, and by reasonable I don't mean the "Spray First" policy they recently proposed in the Texas Register.

"After Care" Key to Overcoming Addiction, Say Winners Circle Conference-goers

New treatment beds for addicts aren't enough, say members of "Winners' Circle," a non-denominational religious ex-offenders' self-help group based in Houston, without additional help with re-entry when they leave confinement. In the clip below, ex-offenders at a recent Winners Circle conference talk about the need for expanded treatment beds and especially expanded "after care" services. Take a look at the short video, posted by Texas Criminal Justice Coalition:

When will the Governor replace TYC management?

A consensus appears to be developing among MSM observers that it's time for the current management at the Texas Youth Commission to pack their bags and hit the trail.

Not long ago, the New York Times urged the state of Texas to "raze" TYC and "start over." Now, declaring "TYC Adrift," the Houston Chronicle editorial board yesterday called on the governor to replace the agency's current management with juvenile justice experts:

Instead of automatically drawing executives from within the state prison system, the governor should push a nationwide search for the best-qualified commissioner and permanent executive director. Every effort should be made to get an experienced and expert governing board in place as soon as possible.

State officials claimed to be caught by surprise by the TYC scandal last winter. If the delays in reforming the agency lead to more problems, they will have no one to blame but themselves.

From your mouth to God's ear, Houston Chronicle, that's exactly the right suggestion. I hope somebody in the Governor's office is paying attention. How much longer will Rick Perry allow this to continue?

RELATED: Here's an overview of lowlights from the litany of self-inflicted wounds bedeviling Texas' youth prison system that corroborate the Chronicle's assessment of the agency as "adrift":

• Violating Court Order on Pepper Spray
• Ignoring Expert Advice
• Importing Adult Prison Managers with No Juvie Experience
• Kids' Healthcare Worse at TYC than Before Scandal
• Alleged Cronyism, Possible Corruption in Vendor Choices
• Retaliation by Management Alleged Against Field Staff
• Management Blames Staff For Their Own Failures
• Understaffing Plagues TYC Facilities
• Education Sub-Par for TYC Kids
• TYC Expects New Policies to Increase Recidivism
• JCOs Still Receive 1/2 Amount of Training as Adult Prison Guards
• Overtime Pay Halted, Worsening Understaffing
• Agency Fired Dozens of Experienced Employees Uninvolved with Misconduct
• Management Consultants Called New TYC Chiefs Poor Leaders
• Agency Shifting to Private Prisons for 10-13 Year Olds Despite Bad Problems

Reader Poll: Are Mexican cartels a serious threat?

In last week's reader survey Grits asked the following question, with the percentages who chose each answer in parentheses:

Which is the biggest public safety threat related to illegal drugs in America?

• Detrimental effects on users' health and lifestyle (8%)
  
• Crimes by drug users (14%)
  
• Organized crime gangs transporting and distributing drugs (18%)
  
• Mexican drug cartels (3%)
  
• Damage done by overincarceration and reduced civil liberties related to the Drug War (55%)
  

Though one commenter thought I'd worded the question in a way that biased answers toward the final one, I was actually testing a different theory with that particular query. I'm increasingly coming to believe that Mexican drug cartels, their US-side organizations and the potential, Mexico and Colombia-style corruption and violence they bring with them represent the most important, if not the most immediate negative effect of illegal drugs.

It turns out almost none of you agree with me. That's okay - all of us are guessing. However, my own best guess is that it's primarily the US-side infrastructure of Mexican cartels - not necessarily "Big American Drug Bosses" - who already supply regional US distribution systems to get most illegal drugs to retail markets (though I do not discount the possibility that US interests may siphon off some of the proceeds occasionally for their own side projects). Given the level of violence and corruption those groups create south of the border, it seems only a matter of time before such tactics escalate in the United States, and Texas is the front line.

To me, that's the biggest public safety threat facing this state in the 21st century.

As for detrimental effects on users, alcohol as a societal problem ranks as a much bigger concern to me, and without delving into the research pro and con in this post, the effects of marijuana use in particular IMO are often overstated. A larger number of readers (14%) were concerned with crimes committed by drug users, presumably to obtain money to buy more drugs. I agree this is a problem, and it's probably the one that receives the most media attention (oddly enough). Similarly, sometimes drunken homeless folks will steal copper from construction sites to sell to buy booze. But there's a reason more people commit crimes to buy illegal drugs than to purchase alcohol, and IMO the main reason is that black markets keep the price of drugs artificially high, while the price of legal booze, even when heavily taxed, remains relatively cheap.

A few more readers - 18% - thought the main public safety threat came from street level dealers and regional criminal networks, while the majority believe that collateral consequences of the Drug War are a bigger public safety threat than any of these others.

Keep in mind, I think all of these things are public safety threats - my only question was which is the biggest, and perhaps readers are correct that the collateral consequences of the drug war, of the choices on the list, currently causes the most harm. But for my money, the alarming growth of Mexican "mega-cartels" and their mass infiltration into the United States represents a threat not just to public safety but to the overall integrity of US political institutions and the justice system.

I believe we're at a crossroads, that if we continue on the current path for much longer these massive criminal organizations will become so powerful on both sides of the border that only a political, not only a martial solution can reverse the tide (if we're not already at that point). Sadly, if America is unwilling to seek meaningful political solutions in its real war in Iraq, it's hard to see the government being that clever in the (increasingly non-symbolic) Drug War.

Humor is the best medicine - okay, not for children with lead poisoning, but I'm sure it's helpful for other stuff

If readers will forgive a humorous but important off-topic post here entering the holiday season, I wanted to share with y'all a really cool web video and political action project on toxic imported toys, produced by the lovely and talented Kathy Mitchell (a.k.a., Mrs. Grits), who happens to run the national internet advocacy campaigns for Consumers Union, the nonprofit publisher of Consumer Reports magazine.

Click here to see their Christmas song and video about the lonely toy inspector and his befuddled staff awash in a sea of Asian imports. The song was written and performed by the Austin Lounge Lizards, while the hysterical animation was created by Austin-based PowerHouse Animation. Enjoy, and share. The video parody is part of a Consumers Union netroots campaign to help convince Congress to improve health and safety regulations for imported toys.

I think the video is hilarious and I'm real proud of Kathy for putting together such a creative way to get people's attention in the all-too-distracting holiday season. You'll want to listen to this one a couple or three times, or at least I did, to catch all the jokes.

Marc Levin: What should Harris County do now that jail bonds have failed?

Kuff points to an article by Marc Levin of th Texas Public Policy Foundation in the Houston Chronicle ("How to survive without new jails," Nov. 17) suggesting alternatives for Harris County officials after their recent jail bonds failed at the ballot box by a narrow 51-49 margin. Marc's article details many of the most most obvious solutions to Harris County's jail overcrowding problem:

A new Texas law allows law enforcement officers the discretion to issue citations, instead of making an arrest, for some of the lowest-level misdemeanors.

Issuing citations with notices to appear does not reduce the ultimate punishment for these offenses, which include driving without a license and possession of an ounce of marijuana, but it could divert tens of thousands of these pretrial detainees from the Harris County Jail every year. This also keeps more police on the beat when officers are spared the three- to four-hour process of booking a suspect into jail.

The Sheriffs' Association of Texas and the Combined Law Enforcement Association of Texas both supported this law. While other counties are successfully implementing it, Harris County District Attorney Chuck Rosenthal has said he will not prosecute cases in which police issued citations for such offenses. Law enforcement agencies and officers in Harris County should be able to exercise the discretion given to them by the Texas Legislature with confidence that the citations they issue will be fully prosecuted.

As of Oct. 1, the Harris County Jail's inmate population included about 1,000 first-time offenders — more than four times any other county — serving sentences for possessing less than a gram of a controlled substance. A 2003 state law mandates probation for these state jail felony offenders, but Harris County prosecutors have instead invoked another law that allows them to reduce the felony charge to a Class A misdemeanor, which still allows up to one year of county jail time on local taxpayers' dime.

As of Sept. 20, another 411 inmates in the Harris County Jail awaited trial on misdemeanors. Many have no prior offenses but cannot afford to post bail. If the person is not a flight risk, they should be offered a less costly personal bond. Public safety, not an offender's financial means, should guide public policy.

Jail overcrowding can also be reduced by offering victim-offender mediation for first-time, nonviolent property offenders. A survey of burglary victims found that 81 percent wanted restitution, but only 41 percent wanted the offender jailed. The victim and the offender can voluntarily choose to enter an agreement for the offender to make restitution and perform community service in lieu of jail time.

It's certainly not for every offender or type of offense, but it makes sense in cases like graffiti and stealing a compact disc from a car.

Probation reform can also reduce jail overcrowding. Currently, 43 percent of offenders charged with misdemeanors for first- or second-time drunk driving choose the Harris County Jail over probation. As odd as that seems, it allows them to avoid probation fees and end their case in a month or two instead of two years. One way to encourage more offenders to choose probation would be to increase the availability of early termination for probationers who have fulfilled all their terms and whose conduct has been exemplary.

Be sure to read the rest because Marc's discussion is exactly the type of policy debate that should have occurred BEFORE Houston voters were asked to decide the question. Proposing expensive jail building projects that require new tax increases, as in Harris and Smith Counties in earlier this month, should be a last resort, suggested only after counties, including elected judges and DAs, have used other tools at their disposal to reduce local overincarceration.

Charles Kuffner summed up the overall message to take from Levin's column, so rather than seek to come up with a more clever denouement, I'll end quoting Kuff's observation: "We are not in this situation by fate. We are in this situation by choice. We can choose to do things differently, and in doing so we can allocate our scarce resources more efficiently. It really is that simple."

Let's hope Harris County officials accept that simple message from the voters as the '08 election season looms before us.

RELATED:

Exploring alternatives to local jail building

• Grits' best practices to reduce county jail overcrowding, Part One
• Grits' best practices to reduce county jail overcrowding, Part Two
• Texans' taxation revulsion vs. their Incarceration Addiction: Which will prevail on county jail building?

Harris County Jail Overcrowding

• Voters who rejected county jails looking for better justice policies
• Counties that rejected new jails now must get serious about diversion
• What they're reading at the Harris County probation department (series)
• State to Harris County: Pay the piper on overincarceration
• Whitmire: Houston doesn't need more jail beds
• Jailing drug offenders and the interests of justice
• Houston should fix current jails before building more
• Chuck Rosenthal looks vulnerable in '08 Harris County DA's race

HB 2391 - Cite and Summons for Low-level Misdemeanors

• Tuff on crime meet reality at the Nacogdoches County Jail
  
• Sheriffs more likely than PDs to welcome new arrest discretion
  
• Jefferson County works out kinks with new cite and summons authority
  
• How one Texas county will take advantage of new law to reduce jail overcrowding
• HB 2391 could save Bexar taxpayers $10,000 per day
• Bexar jail administrator: Stop arrests for nonviolent misdemeanors
• DA Susan Reed blocking key Bexar jail overcrowding solution
• Midland Sheriff's Captain: Cite and summons for low-level offenses would reduce jail overcrowding
• Cite and summons for low-level offenses could free up jail space
• Texas Lege approved new tools to reduce jail overcrowding, if police can change their thinking
• DAs thwarting jail overcrowding solutions

Are You Embarrassed Yet? Keller and CCA create new, absurdist rule on when cops can tamper with evidence

So after the recent Texas Court of Criminal Appeals ruling, when can police officers hand out drugs to encourage people to become snitches?

A commenter complained yesterday that I'd written about the Clinton Stewart case - a police officer who gave a portion of confiscated marijuana back to a suspect to convince her to become a snitch - merely from news and blog accounts, which was true. So this morning I took a look at the opinions myself, only to find the ruling more insidious, even, than I'd previously believed. Certainly the case may offer significant, bad precedential value when similar, future cases of evidence tampering arise. Naturally, Presiding Judge Sharon Keller wrote for the majority:

the evidence appears to be legally insufficient to show that appellant had the conscious objective or desire to impair the availability of the marihuana as evidence. The missing marihuana bud would not have changed the category of the offense, and the remaining marihuana was certainly enough to convict Lavender, if the State was interested in pursuing a prosecution. Indeed, appellant's conduct appears to have been motivated by the belief that Lavender would escape prosecution by becoming an informant, and as a result, the entire quantity of marihuana would be destroyed anyway. (emphasis added)

So here's the new rule in Texas, as I understand it: Officers who confiscate drugs from a suspect may return a portion of the drugs to them - for whatever reason, in this case to convince them to act as an informant - without being guilty of evidence tampering, so long as the weight of the drugs left in police custody would not change the level of offense the person is charged with.

For example, possessing between 4-200 grams of cocaine is a second degree felony offense, garnering a potential 2-20 years. So if an officer confiscated 150 grams of cocaine, the COCA majority wouldn't consider it evidence tampering unless the officer gave away MORE than 145.99 grams.

The court raised the possibility that the officer might have been charged with Class B delivery of marijuana, instead. But that charge, to me, doesn't seem to convey the same gravity toward official misconduct as evidence tampering. He didn't just deliver marijuana to entice an informant, in the bigger picture he delivered evidence.

I agree with the four judges in the minority that this new standard enjoys literally zero basis in Texas statutes. The minority opinion authored by Judge Paul Womack shows why this new standard amounts to judicial activism:

The Court's grafting onto the required culpability a requirement that the tampering change the punishment category is not anything that the statute requires. The statute could have said that a person commits no offense if he destroys a portion of evidence that falls between the limits of a punishment category. But it doesn't, and this Court has no authority to amend it.

This amounts to judicial activism at it's very worst, pre-selecting an outcome based on judges' affinity for the defendant then concocting a new legal standard to erase his conviction.

Think about it - what if it were cash instead of drugs? Under this ruling, an officer would not be tampering with evidence to return ill-gotten gains to a suspect if the amount returned didn't affect the penalty category of the offense. Who believes that's right (I mean, besides five Court of Criminal Appeals members)?

We've been seeing more and more 6-3 and 5-4 CCA split decisions in the past year. I believe that's largely because quite a few members of the court are beginning to realize Judge Keller has led them into a jurisprudential snakepit of judicial activism, setting precedents conservatives will regret if courts ever change hands to liberals or moderates. In the comments yesterday, Doran Williams predicted just such an outcome from the Clinton Stewart case:

There is a long standing rule applied by both civil and criminal appellate courts that the jury is the final decider/arbiter of facts. They can believe a witness or they can refuse to believe him. In this case, the jury clearly did not believe the defendant witness' excuse or explanation. So they found him guilty as charged.

Generally, courts will not disturb a verdict which is clearly based upon the jury's [assessment of the] lack of credibility of a witness. Courts have discussed that rule in terms of the jury being right there, sometimes only 20 feet or so from the testifying witness, watching his expressions and listening to his voice. Demeanor "testimony" is what courts have called this, and they have ALWAYS deferred to a jury's decision against the credibility of a witness.

Until now, as this all Republican, 'lawn order,' pro-law enforcement biased CCA tosses those rules -- and the unimpeachable reasoning which underlie those rules -- into the toilet.

This all-knowing, all-seeing Court, without the benefit of having seen or heard the witness, just takes it upon their omniscient selves to decide that cop told the truth. What did they base this on? Not facts. They were not present at trial. They based it upon a bias in favor of law enforcement and against people who use drugs.

In short, the CCA cheated. ...

Here is the ironic kicker to come. When the tide turns, and there are again liberals and moderates on the CCA, they will have this opinion by some authoritarian, right wing Republicans to cite as authority for reversing jury verdicts. I hope to live to see it.

Yes, judicial chickens have a way of coming home to roost. I hear a lot of foment by GOP judicial candidates about their dislike for judicial activism, but this amounts to judicial activism of the worst sort, and the worst part it is, at "Texas' Worst Court," it's common as dirt. This is a horrible ruling that essentially approves low-level corruption and evidence tampering by officers.

Media criticisms unfair about Dallas jail good time policy

Because criminals and jail inmates aren't very popular with average folks, it's easy to spin stories in the MSM to imply to the public that the government is being too soft on criminals, and I'm afraid that's what happened with a story Kevin Krause reported in the Dallas News, mentioned earlier on Grits in this roundup.

An unsigned Dallas News editorial followed up Krause's story chastising the Sheriff's Department for an 11 year old policy on good time that gives offenders three days "good time" credit for every one served in the Dallas county jail, whether or not they participate in work programs. Tarrant and some other counties give two for one credit, Krause reports, and allow offenders to earn the third day by performing volunteer work, including on crews picking up trash and performing other work outside the jail.

Really, it's as though the Dallas News editorialists don't read their own newspaper. "If you plan to get arrested and/or sentenced to jail time for a misdemeanor offense," they write, "and you could choose where – wouldn't you pick Dallas County?"

Hmmm ... Duh ... I don't know, why wouldn't you pick Dallas County?

Maybe because for every month you spend in jail there you're more likely to acquire a staph infection than you would be to roll "snake eyes" shooting dice? After a scathing report last year, the feds finally sued Dallas County over poor healtchare for inmates last month.

Or perhaps because, once you go in, they might just lose your ass for a year or so?

Possibly because many jailers are young and untrained, making it among the more dangerous and overcrowded urban jails?

So why do Dallas News editorial writers think the Dallas jail is such a great place to be? Because offenders don't participate in work crews. But they've reported the reasons why before--not enough work-crew eligible inmates due to initiatives that reduce overcrowding by diverting low level offenders. State regulators ordered them to release low-level offenders by the hundreds earlier this year - precisely the category of offenders who might be eligible to work outside the jailhouse - and yet, the jail is still overcrowded.

Even so, you know what? Labor from jail inmates on road and bridge crews is nice to have, but it's not the purpose of the jail to provide the county free labor. Reported Krause:

Sheriff's spokesman Michael Ortiz said the department has always had trouble filling the trusty positions.

Each of the five jails has its own assignments and labor pool, he said. Some days, there are plenty of trusties. But because the jail population is always in flux, there are shortages, he said.

"Sometimes we'll have a good number, and the next day we'll be short," Deputy Ortiz said.

Some inmates realize it's too much work and would rather watch TV, he said.

"They apply for trusty status and get it and then realize they don't want to do it anymore," he said. "There's a high turnover rate."

Terry Grisham, a Tarrant sheriff's spokesman, said his agency has not had difficulty finding work volunteers. Those who work receive three days credit while everyone else gets 2-for-1, he said.

"It's the pre-eminent factor," he said. "They want to make that time as short as possible."

If that's the case, I've got a suggestion: Let them keep their 3-1, since changing it would worsen overcrowding and risk a federal court's wrath, and give jail inmates an extra day off their time if they participate in work crews. If they inmates used the new program, it would solve Mr. Mayfield's problem and help cycle more low-level offenders out of the jail more quickly. For that matter, I think participating in work crews probably contributes more to rehabilitation than sitting around the jail doing nothing, so it's really a win-win all around.

The Dallas jail is woefully overcrowded, with private and federal lawyers, not to mention state regulators, already breathing down their necks. Even if they build more jail beds the county can't find enough guards to staff them. So to cavalierly claim they're giving inmates living in squalor such a great deal ignores the obvious question: What would you do instead, Dallas News? On that difficult question, I guarantee, they'll have no snarky reply like their mocking editorial on the work program.

The Dallas jail doesn't have very many options at this point, and none of them include keeping low-level offenders in the jail longer so they can clean up roads in Commissioner Mayfield's precinct.

(Image via Proximo)

Texas Worst Court: Cops can hand out dope to create snitches

UPDATE: See more detail on the new rule established by the CCA here.

If court watchers didn't already have enough reasons to disdain the Texas Court of Criminal Appeals, which Texas Monthly famously called "Texas' Worst Court," now they've ruled that it's okay for police officers to distribute drugs to informants in order to convince them to become snitches.

Really? It's come to this? Cops can distribute illegal dope so they can recruit informants to catch people distributing illegal dope? What, exactly, is the point of that?

In what I hope she will make a regular feature, Anjuli Verma lists a bad Texas court decision among "This Week's Top Snitch Scandals" on the new national ACLU's blog about informant abuses:

The San Antonio Express News reported that Texas' highest criminal appeals court issued a decision that, in effect, allows police officers to give illegal drugs — even when the drugs are evidence in a case — to informants for their personal use! In this case, a police officer caught the potential informant with drugs, but before booking the evidence in her case he gave some of the drugs back to her so she could get high. The officer's defense to the tampering-with-evidence charge? "I was trying to create a snitch."

I'd written about this case on Grits when it was at the appellate court level, and I cannot believe the CCA overruled the Fourth Court of Appeals (by a narrow 5-4 margin) to declare that "creating a snitch" is a defense to police evidence tampering. The officer actually thought giving drugs to a snitch was okay, he said, because he'd seen it done on television cop shows. (No, really!)

Here's the problem: Not one Democrat has signed up to run for any of the three Court of Criminal Appeals seats up in 2008, and none of the potential candidates I've heard of panned out. This ignominious court, it appears, will remain entirely uncontested, so the same nine judges will be there after the next election, even if predicted Democratic presidential coattails secure other statewide seats. That would be an enormous waste of an opportunity.

Somebody needs to step up. Three somebodies, actually, with "J.D." after their names. Or this disgraceful bunch will just run the Texas criminal justice system without interruption with the same crappy outcomes for years to come.

* * *

In other CCA-disgrace-related news, the public complaint against Presiding Judge Sharon Keller was ultimately signed by more than 1,600 Texans, and was distributed Friday afternoon to the court and filed with the Judicial Conduct Commission. See:

• Video story of Friday's protest from FOX 7 News
• TMN: Court will stay open to accept demands for Keller's resignation.
• Complaint has more than 1600 signers.

Barry Bonds Perjury Indictment Is Pure USDoJ Media Ploy

Since Grits has discussed steroid testing quite a bit recently and did a reader poll on the topic, I wanted to comment briefly on the Barry Bonds' perjury indictment related to alleged (but extremely likely) steroid use. To be clear, from everything I've seen, Bonds is a big jerk. I don't like him much, and I wish Hank Aaron still held the home run record. But the much-hyped federal indictments seem unmerited, and if I were a betting man, I'd wager Bonds and his high-priced legal talent will win out at the end of the day.

Leaving aside the personalities and issues in the specific case, though, Bonds' indictments raise a number of other issues for me that deserve wider discussion.

First, why are my tax dollars even investigating steroids in professional baseball? It seems to me Congress and the DoJ got involved only because of the media hype. Isn't this taking the Interstate Commerce Clause a little far?

Second, I remain unconvinced that there's a serious health threat to steroid use that isn't taken on knowingly and with full consent from those taking them. Indeed, some of the admitted steroid users, like Marion Jones and some of the European cyclists, are among the best-conditioned athletes on the planet. It's one thing for Major League Baseball to ban steroids to protect the purity of competition (though if that's the case, they've failed, since hundreds of players besides Bonds have allegedly also used steroids in the current generation of athletes). But it's quite another for the long arm of the federal government to intervene when there's little health or safety threat. I mean, don't they have a war to run, or something?

Third, can we please stop pursuing pointless politicized prosecutions against high profile figures for "perjury" when no one was charged with any underlying crime? Bill Clinton, Martha Stewart, Scooter Libby, how many times have we seen this, now? Stop, please.

Fourth, media hype surrounding Bonds shows race still matters. The underlying issues are not racial, but the public's reaction has contained extra vitriol that you don't see when we're talking about Mark McGwire.

Fifth, as Kuff said, the statistics are simply a record of history. Talk of wiping Bonds' stats off the books makes no more sense than pretending games played by "Shoeless" Joe Jackson never happened. The advantage gained by Bonds using steroids wasn't nearly as great, IMO, as the advantage Babe Ruth enjoyed not having to face pitchers from the Negro League. But we see no asterisk on Ruth's stats, or other MLB greats from before league integration.

Finally, if we're going to prioritize law enforcement resources based on where they get the most bang for the buck, as I've argued before, the feds should be focusing on steroid abuse in law enforcement, not in professional or amateur sports. When police officers engage in black market activities it exposes them to blackmail and corruption opportunities that create a real public safety dilemma. There is simply no such public interest benefit from the government investigating athletes.

The New York Times quoted a law prof saying a "message has to be sent to the public” when a high profile person appears to get away with defying federal prosecutors and the grand jury. But in my experience, nearly every time someone tells you a lawsuit or a proposed law is intended to "send a message," the result is bad public policy because public relations goals inevitably override the pursuit of justice.

That's what's happened here, and it's why I hope federal prosecutors pursuing this wind up with mud in their eye.

Send Bonds to the Hall of Fame, forget all the talk of an asterisk, and let's start to have a more serious discussion about whether steroids do any demonstrable harm that justifies federal intervention, and whether there might be more serious problems out there to worry about.

MORE: Big Tom over at Houston's Clear Thinkers rounds up more Bonds-related editorializing in the blogosphere.

TYC Heads to Court: Like Sand In a Carburetor, These are the Days of Their Lives

I've heard nothing about how the depositions went this week of the Youth Commission's "Bronco" Billy Humphrey and others involved in the agency's decision to ignore an agreed court order restricting pepper spray use, but the Statesman has a short preview of Monday's court hearing:

Agency officials have been ordered into a Travis County District Court Monday morning to explain why they have not complied with an October court settlement in which they agreed to limit the use of pepper spray in juvenile lockups.

Under the settlement, Dimitria Pope, the Youth Commission's acting executive director, agreed to rescind her Aug. 2 directive allowing guards to use pepper spray more frequently before they try to physically restrain youths.

Attorneys for Texas Appleseed and Advocacy Inc. had sued the Youth Commission to block the expanded pepper-spray use, arguing the change violated state law. Then, two weeks ago, they asked a judge to force the Youth Commission to comply with the settlement — which it quickly promised it would.

It didn't, advocates say.

Each of the plaintiffs has a mental illness or serious emotional disability, and one suffered skin burns after being pepper sprayed three times to prevent him from harming himself, Texas Appleseed board Chairman Jim George said.

The agency has re-submitted the disputed pepper spray policy through the Texas Register process, and is currently in the process of accepting public comments. But as Grits has described before, ignoring the advice of experts, Pope, Humphrey and Co. have bypassed that process twice - both when they originally instituted the policy Aug. 2, and then in defiance of the agreed court order immediately after it was handed down. That's why the court has intervened.

This is really turning into quite a soap opera. Indeed, in asking the obvious questions I feel like I'm writing promo script for Days of Our Lives: What do you think will happen on Monday? Who will Humphrey and Co. try to scapegoat, and will they succeed? What do TYC'ers think will happen to "Bronco" Billy (or "The Humpster," as a number of commenters hilariously call him)? And in the bigger picture, will the Governor appoint a new conservator anytime soon, and with new scandals arising every week, will Dimitria Pope and the TDCJ transplants running the agency make it through the end of the year without being replaced?

Stay tuned to find out, or leave your predictions in the comments.

Seek Overincarceration Solutions

"If all the people in the Texas criminal justice system lived in a single community, it would be the fourth largest city in Texas," reported The Texas Observer in one of several related items regarding overincarceration that deserve Grits readers attention:

• Break the Chain, The Texas Observer (editorial)
• Education = Less recidivism, Corrections Sentencing
• Fewer $$$ for treatment = more recidivism, Corrections Sentencing

Briefings on Bush's Mexico Drug Plan Raise More Questions than Answers

I was hoping we'd learn more this week from Congressional hearings about the President's "Merida Initiative" to funel $1.5 billion to Mexico over three years to support Mexican drug interdiction, but from the official testimony posted on the House Foreign Affairs Committee website, I find more questions than answers. For now, then, let's run through some of the questions:

Helicopters for what?
A big chunk of them money will go to purchase helicopters and other equipment for Mexico, but as Chairman Tom Lantos in his opening statement questioned:

$208 million of the proposed $500 million package for Mexico is for helicopters. The question remains, what are the mission requirements of these helicopters? How will Mexico use the aircraft? What restrictions do we contemplate putting on the use of the aircraft? How will we monitor the use of the aircraft?

Indeed, Lantos pointed out, we've done this before:

This is not the first attempt to provide helicopters for counter-drug use. Twelve years ago, 73 helicopters were given to Mexico. They were used, and did not work well, and we ended up with the Mexicans giving them back to us. The Mexican military also singularly dislikes end-use monitoring requirements, without which Congress will not approve the measure.

I guess it's true that history repeats itself, the first time as tragedy, the second time as farce. Besides helicopters, the Bush administration proposes giving the Mexican government all sorts of additional high-tech equipment and assist creating national criminal databases comparable to in the United States. It seems highly unlikely such grand goals can be completed within budget.

Is there an exit strategy?
Lantos also questioned whether the initiative represents an open ended commitment or a finite one:

The reports in the media are that this is a three-year plan. We are currently in the seventh year of Plan Colombia with no end in sight. Is the Mexico plan equally open-ended? How will we define and how will we measure success? From where will subsequent money come for this plan? Latin American assistance budgets have been steadily declining and a very large portion of the amounts Latin America does get are taken up by Plan Colombia. Will ’09 money for this plan also be taken from existing Latin American funds?

I don't think anyone can credibly say drug importation will have ceased in three years since we've not accomplished that task in the last 82. The $1.5 billion shouldn't be considered the cost of the initiative, IMO - it's more like an ante required to get into a no-limit game.

Will we just be training more Zetas?
Finally, the chairman made a veiled reference to Los Zetas, Mexican paramilitary commandos trained by the US at Fort Benning, GA, who went on to work for the drug cartels, suggesting that the plan does not include sufficient safeguards to prevent that from happening again, declaring:

Training is an important part of this program, and training is a very important element in stemming the flow of drugs. But it is reported that prior counter-drug training resulted in a significant number of individuals, well-trained, becoming members of drug traffickers’ military units – and as a result of our training, using sophisticated military tactics, intelligence-gathering and operational training. Training can be dangerous because it can make corrupt forces more effective.

I'm glad Lantos raised this: How can America be sure we're not training and arming corrupt Mexican police and military personnel? Not only is it precisely the right question to ask, it should be asked first before we start training and arming Mexican police and military who we don't know and can't thoroughly trust.

Dallas News: Inexperienced TYC Vendor Got No-Bid Contract

Former state Rep. Arlene Wohlgemuth helped an inexperienced vendor with a troubled past get a no-bid contract with the Texas Youth Commission, reports Steve McGonigle at the Dallas News ("TYC hands contract to controversial ex-official," Nov. 16):

Top executives of the Texas Youth Commission awarded a no-bid contract to a former state official with a slim record in juvenile justice but a long history of controversial business dealings with public agencies.

Gregg Phillips, a former top deputy with the state Health and Human Services Commission, began working this spring to overhaul TYC's inmate classification system after his lobbyist contacted the agency's conservator, Jay Kimbrough.

Despite a lack of familiarity with Mr. Phillips, agency executives arranged a $275,000 contract for his company that bypassed standard procurement rules and the legislative funding process. Mr. Phillips said they did not ask for references or financials.

Read the whole story for details. The money quote came from former conservator Jay Kimbrough: "It doesn't matter to me if Gregg Phillips was on the grassy knoll in Dallas, Texas, if he has a solution that is good for the youth of TYC."

Really, sir? Because earlier this year you fired dozens of TYC employees for past criminal offenses that the agency knew about when they were hired. Said Kimbrough at the time, "If I have my way, and I bet I do, those people will not be employed by the TYC."

So why did those employees' past matter so much to you, Mr. Kimbrough, but when Arlene Wohlgemuth recommends a lobby client to you, you don't give a hoot if they assassinated JFK?!

UPDATE: This isn't the first contract Wohlgemuth has steered Mr. Phillips' way. See more background on Gregg Phillips' history in Texas and Mississippi state government from:

• Ramblings of an HHSC Employee
• Off the Kuff: Here and here
• The Red State
• Watch Your Assets
• Texans for Public Justice
• The Texas Observer
  

Valley papers axe Austin reporter who broke TYC stories

AAAAAAAaaaaarrrrggghhh!!!

South Texas Chisme brings the bad word: The Valley Freedom newspaper group, which runs the Brownsville Herald, the McAllen Monitor and the Valley Morning Star, has decided to shut down its capitol bureau which means adios for reporter Elizabeth Pierson Hernandez, who doggedly pursued and broke stories about problems at the Texas Youth Commission for a year before the rest of the state's media caught on.

Soon after the sex abuse scandal broke earlier this year, I called Pierson-Hernandez "the most astute reporter covering problems at the Texas Youth Commission." Long before the Texas Observer and the Dallas News were on the case, she was tracking TYC's troubles from a South Texas vantage point. Her work led to a still-ongoing federal inquiry at the Evins Unit in Edinburg.

Texans know a lot less about state government now than a couple of decades ago because there's hardly anybody left to cover it but part-timers and bloggers. The decline of the two newspaper town and the flight of broadcast media from Texas state political coverage both have contributed to the trend.

In a podcast earlier this year on the Texas Politics blog, Houston Chronicle political writer R.G. Ratcliffe reported about the decline in numbers at the capitol press corps. In 1991, he said, 26 news organizations had 66 credentialed capitol reporters in Austin. In 2006, 16 news organizations had 37 total reporters, and most of them were part time. Clearly those numbers have not completed their decline. The Valley Freedom group was the only media organization south of San Antonio with a reporter in Austin.

All that to say, Texas can't afford to lose many more talented, full-time pros like Elizabeth Pierson Hernandez from the capitol press corps. This is terrible news, and I wish the Valley Freedom group would reconsider its decision.

Federalism arguments favor border wall opponents

Yesterday I argued that the states rights baby shouldn't be tossed out with the bathwater of segregationism, and here's another example where the revitalized concept would come in handy. Reports Forrest Wilder at the Texas Observer blog:

With a stroke of his pen last month the Homeland Security chief suspended nineteen laws in Arizona that stood in the way of a two-mile section of border fence slated for the San Pedro Riparian National Conservation Area.

He’s threatening to do South Texas the same way, unless environmentalists win a recently filed lawsuit.

[Michael] Chertoff is using a tool granted to him by Congress in 2005 as part of the Real ID Act. In Section 102 of that act, Congress offered Homeland Security the power to waive laws conflicting with border militarization security. Congress also stripped the courts of judicial review except for Constitutional claims.

What an outrageous abuse! Here's a situation that, to me, cries out for strident claims of state sovereignty. I've said before a wall on the Texas-Mexico border amounts to the most imbecilic public policy I've ever heard seriously proposed. If it happens, we will be the first nation state in history of the planet to build a wall along a major river, and leave the river on the other side!

Overturning state and local laws with a stroke of a pen in Washington is an affront to federalism and the concept of local control, snubbing people on the front lines who have firsthand stakes in the border and border security. By all rights, opponents of a border wall should be waving banners with the Tenth Amendment to the Constitution stenciled on them. But since those arguments have been all but banished from polite society - after all, Bob Herbert might call you a racist - opponents find themselves falling back on weaker arguments. E.g., the Observer reports that:

residents on both sides of the border as well as environmentalists and birders are enraged over the fence.

The latest map released by the government shows segments of the wall slicing through critical habitat in Texas. The Sabal Palm Audubon Center in Brownsville will be completely walled off, leaving this rare, species-rich palm grove in a sort-of no-man’s-land. Many Texans probably do not know that the Lower Valley is the most biologically diverse region in the nation. Yet it has a global reputation. I’ve met people from as far away as South Africa who have never set foot in Texas but know about the Valley because of its fame as a birding and wildlife paradise.

Chertoff’s response to all this? “I have to say to myself, ‘Yes, I don’t want to disturb the habitat of a lizard, but am I prepared to pay human lives to do that?’,” he told the AP.

Chertoff's response is as clever as it is disingenuous (arguably building a wall will cost more lives by pushing migrants further out into the boondocks): If the debate is defense against Al Qaeda against bird habitat, I think the wall builders probably win. But if the debate is about federalist ideals laid out in nation's founding document, I think arguments against the wall gain more traction.

It's not that birds and lizards don't matter, it's that the environmental issues appeal to a fairly narrow and more liberal segment of the public, while even those without a personal or ideological stake in environmentalism can find reasons to dislike a fence that restricts Texans' access to a major river and was imposed by Washington against the wishes of the locals.

There are many good arguments for opposing a border wall, there's really no reason to limit yourself.