Why might police need misconduct insurance?

Austin attorney Kiele Linroth Pace has a couple of thematically linked posts on the blog Austin Justice: The first one pointed to a Statesman story about Austin police officers buying misconduct insurance for $17 per month that pays their wages if they're suspended for cause (the police union is looking for a group rate). Another post gave an excellent example of why officers might need such insurance, describing an Austin-based example of apparent testilying by a police officer on a minor offense. Pace was:

taken aback by the blatant lying that I encountered last week.

The case involved a rarely used arm of the criminal trespass statute that I was familiar with only because of the time that I spent as a prosecutor in the piney woods of East Texas. Lumber companies typically use purple paint markings on trees in a way that's described by that statute to mark their territory and let other players in the lumber industry know that a piece of land (and especially the valuable stand of pines on it) is off limits. But such markings have no real relevance in an urban area.

Nonetheless, the probable cause affidavit that Officer Gerardo Cantu, APD#6111, swore to and filed in this case indicated that he arrested my client for trespassing on a "heavily forested" property at 8212 Sam Rayburn Drive, which contained trees "painted with a purple band" as well as posted "No Trespassing" signs that were "in plain view" on all sides of the property.

As you can see from the street view provided by Google Maps, this is not a heavily forested property. When I drove out there last week, I discovered that it is, in fact, a multi-unit property in a densely populated urban slum. There's a single tree with no purple paint in sight. The only signs posted anywhere on the property do not say "No Trespassing." Rather, they prohibit drinking and loud music in public areas, roaming around, soliciting, loitering, and so forth.

In fact, no element of Officer Cantu's criminal trespass allegation against my client turned out to be true. He just made the whole thing up. The really surprising thing is that he's willing to commit aggravated perjury when it's so easy to prove.

As for the case against my client, I printed out the whole stack of photos that I took at the scene, which included a shot with the address shown on the side of the building, and showed them to the prosecutor at our scheduled pretrial conference last week. She decided that it was in the "interest of justice" to dismiss. Imagine that.

I wonder if Officer Cantu has signed up for misconduct insurance yet?

The most frustrating part: Because Texas gutted our open records act on closed criminal cases that don't result in successful prosecution, records where police misconduct is outed by a diligent defense attorney and the case is dismissed become closed, at the department's discretion.

This example may also help explain why prosecutors in some counties don't want defense attorneys to make copies of police offense reports.

Ideas for good corrections bills

A staffer recently asked me for bill suggestions that might go through the House Corrections Committee, so I offered several ideas, none fully developed into bill language, but all relatively simple to draft. Upon reflection, I added a couple of more to the list and submit them here for readers' consideration. Use the comments to say what other Corrections (or other criminal justice) bills you'd like to see filed in the 81st Texas Legislature before the March 13 filing deadline:

1. Recognition of possible innocence: Quite a few of Texas' DNA exonerees - including Timothy Cole who died in prison - were denied parole in part because they refused to accept responsibility for crimes that, it turns out, they did not, in fact, commit. I would add a new (d) between the current (c) and (d), renumbering accordingly, at Government Code 508.0441 to say the parole board cannot adopt any rule, policy or practice penalizing a prisoner's failure to take responsibility for a crime if they maintained their innocence at trial and throughout the post-conviction appellate process.

2. Right to Counsel for Actual Innocence Writs: Authorize two new positions at State Counsel for Offenders for attorneys dedicated specifically to 11.07 habeas work. This would have a fiscal note, but the courts might actually save money overall if the CCA weren't constantly dealing with poorly written, pro se, habeas writs. This was an excellent idea suggested recently in blog comments to this post.

3. Parole for state jail felons: If you're looking for new money for anything (like new appellate positions at the State Counsel for Offenders!), here's a bill with a positive fiscal note (i.e., it would save the state money): Require the parole board review for state jail felons at one year into their (currently) mandatory 2-year term. LBB says the state jail felony population is growing more rapidly than the rest of the prison system, and especially for substance abusers (more than half the state jail felony population), once they've completed a mandatory treatment program it makes little public policy sense to keep them there. Such legislation should create a presumption for parole at one year unless the board identifies reasons for keeping them specific to the defendant.

4. Presumption for paroling low-risk inmates: This would be an even bigger money saver, since 2/3 of all prison inmates are currently eligible for parole. The parole board categorizes inmates into seven risk categories, but the board is LESS likely to follow its own parole guidelines for nonviolent and low risk cases than they are for TDCJ's most dangerous inmates. I'd suggest removing the parole board's discretion for both class 6 and 7 inmates, releasing them as soon as their time served plus good time equaled their sentence length; even if you did it only for Class 7, though, it would have a significant positive financial impact.

5. Better monitoring of treatment funds: A good way to spend any savings from items 3 and 4 would be to use it to pay for research-based analysis of Texas' recently expanded substance-abuse treatment programs' effectiveness, including grants to university researchers or other contractors to develop Texas' own "evidence-based" best practices about "what works" over time, giving more substance and Texas-specific meaning to those perennial, oft-overused buzzwords.

6. Speed up medical release for terminally ill inmates: Here's another cost saving idea - requiring the parole board to issue more medical paroles in cases involving terminally ill offenders. According to testimony last year to the Senate Criminal Justice Committee, TDCJ recommends about 70 or more inmates per month for medical-based parole, but the parole board on average releases just 10% of them. As a result, "inmates who could be released into a hospice or nursing home facility (where the feds through Medicaid would pay 2/3 of the cost), are being held in TDCJ even though they're bedridden and immobile. Dee Wilson of the Office on Offenders with Medical or Mental Impairments told senators that "many" offenders recommended for medical release pass away before the parole board gets around to their case. Around 40 inmates per month die in Texas prisons.

Let me know what you think of these ideas or offer any other corrections-related bill suggestions in the comments.

"Turning Crack Dealers into Chief Executives"

Check out a flattering profile from BBC on the Texas-based Prison Entrepreneurship program and its founder Catherine Rohr.

This is a program worthy of some of that new discretionary grant funding that's going to be coming Governor Perry's way!

Should Presiding CCA Judge Sharon Keller be Impeached?

Rep. Lon Burnam of Fort Worth, a member of the Texas House of Representatives and perhaps that body's most liberal member, has filed a resolution, HR 480, which amount to articles of impeachment to remove from office Presiding Court of Criminal Appeals Judge Sharon Keller, a jurist who openly declares herself "pro-prosecution," thumbs her nose at innocence claims, and who was the subject of a complaint filed with the Commission on Judicial Misconduct signed by 130 attorneys.

To be fair, Burnam's hardly the first to suggest this. And the idea has not been unkindly received: See bloggerly reactions here, here, here, here, here, and here. See also initial MSM coverage of the impeachment articles from Burnam's hometown paper.

I certainly understand Lon's motivation; it was the same impulse that drove me to pen an essay in 2007 titled "Why no one likes Judge Keller and she should quit and go home." I've made my own brief against Keller many times on this blog, calling her poor stewardship of the Court of Criminal Appeals one of the top ten Texas crimnal justice stories of 2007, writing in a year end wrap-up:

Sharon Keller Disgraces Court, State
While in most states the big death penalty news in 2007 was the de facto moratorium until SCOTUS decides on the constitutionality of lethal injection procedures, in Texas the bigger controversy arose around the de jure decision to execute Michael Richard after SCOTUS issued its decision to review lethal injection in Baze. How many sitting judges can say about 150 attorneys and a thousand other citizens have signed onto complaints against them with the state Commission on Judicial Conduct? Only one that I know of: Texas Court of Criminal Appeals Presiding Judge Sharon Keller. Her decision not to notify her fellow judges of an 11th hour delay in a death penalty appeal - including keeping the jurist responsible for the decision out of the loop - arguably could have ranked at the top of the list except for one reason: Keller and the CCA have so long ago disgraced themselves that the egregious behavior that shocked the rest of the world seems to those of us here in Texas nearly routine.

This is the first time the Legislature has met since the infamous "We close at 5" incident, but I'm not necessarily on board with impeachment for a number of reasons, though I admire the chutzpah and recognize the symbolic value of the resolution.

My personal belief is that the best way to handle such matters is at the ballot box, and those who think Judge Keller or her allies on the court shouldn't be in office should be sure Democrats have strong candidates in place for the 2012 elections when she's next on the ballot.

I'm going to put up a reader poll to take input on this topic, so let me know your opinions there and in the comments and I'll do a followup post next week offering a more reflective view.

MORE: Evan Smith at Texas Monthly is nominating moderators for an Impeach Sharon Keller Facebook page, but a commenter notes that two already exist!

Movie 'Writ Writer' to be screened at Texas capitol: How could the Lege help writ writers help innocent people get out of prison?

Quite a few of exonerated clients of (my employers at) the Innocence Project of Texas , most of whom have been freed based on DNA evidence years or decades after their original conviction, were ironically labeled "writ abusers" by the courts for their frequent, post-conviction habeas corpus appeals challenging their final conviction.

Those engaged in legislative oversight, legal advocacy or even adjudicating habeas writs should take advantage of an opportunity next week to see the film, "Writ Writer," if you haven't already. Learn more about the post-conviction writ process from the perspective of prisoners filing the documents and the in-prison writ writers who assist them. Via email I'm told that:

Representative Elliott Naishtat and the Austin Film Society are presenting a special screening of "Writ Writer" on Friday, February 27th, at 2:00 p.m. in the Texas Capitol Extension Auditorium, Room E1.004.

There will be a Q&A afterward, attorney Steve Martin (former chief counsel to the Texas Department of Corrections) will be joined by attorney Scott Medlock of the Texas Civil Rights Project, poet and prisoner rights activist Antonio Renaud, and of course Susanne Mason, the director and producre of "Writ Writer." We will discuss current prison issues with emphasis on prisoner litigation and reentry. Rep. Naishtat has invited legislators and their staffs, so if you haven't yet seen "Writ Writer" this is a great opportunity, and it's free.

For more information about the film, please visit www.newday.com/films/writwriter.html.

I've not yet seen this, so I'm definitely going to attend. The documentary focuses on storied Texas writ writer Fred Cruz, now deceased, whose quixotic career as a writ writer behind prison bars helped spawn a fascinating and rarely examined legal subculture.

Whenever I think of a pro-writ writers' legislative agenda, I think of Brandon Moon, a DNA exoneree from El Paso now living in Missouri; the forensics in his case were botched by the DPS crime lab in Lubbock. Once in prison, he took up the writ writer's mantle, telling the Senate Criminal Justice Committee when he got out that:

First, Texas prisoners have no right to receive information about their case, or anything else, under the Texas public information act, so Moon couldn't get access to the information he needed to combat the prosecution's claims. ...

Second, inmate writ writers just aren't taken seriously in the courts, he said, and Moon couldn't get hearings on most of his motions before Sen. Ellis' new law allowed the new DNA testing. The New York Times quoted Moon on this point (if a bit out of context): "I had no method of enforcing procedures," he said. "I could file all the motions I wanted, but I couldn't get heard."

While many guilty people file similar writs of dubious merit, and surely it's difficult for judges to separate the wheat from the chaff, it's also true that within the flood of pro se habeas writs headed to the Texas Court of Criminal Appeals each year, some proportion of them, as was the case with so many of the "writ abusing" DNA exonerees, are actually innocent but cannot to a certainty prove it, or have already used up their appeals.

The Legislature has never seriously considered Moon's primary suggestion to the Senate Criminal Justice Committee in Houston now four years ago: Give prisoners open records access to information about their own cases. Presently prisoners have no rights to request information under Texas' Public Information Act, about their own cases or anything else.

Tools for bloggers tracking the Texas Lege and reasons why they should

With the 81st Texas legislative session full upon us, I wanted to point readers (and especially, readers with blogs) to free online tools available for tracking bills at the Texas Legislature.

Once the legislative session gets going, you can get most of the information you need to track what's happening (if not always as quickly as you'd like it) from the capitol website, including the House and Senate websites, which collectively are so robust and useful I consider them a true state treasure. This allows nearly the same access to information as is available to those actually attending public hearings, including online posting for most events and real time and archived video of committee hearings and floor debates.

A good way to specialize is to to track the agendas and watch the hearings for the handful of committees covering some particular issue area from week to week - in my case, criminal justice, but you could do similar things on healthcare or schools or beer distribution or whatever you're interested in. You'd quickly find there are a lot of interesting tidbits coming up in the process that never make it into MSM accounts.

It's easy to search for bills by topic or bill number from the main capitol website page or you can identify bills you're interested in from the General Subject Index, which usefully categorizes them when they're filed. (See a good explanation of how to track bills through the process.)

When analyzing bills, Google is your friend. Frequently the same issues will have been debated in previous sessions or in other states. All Texas statutes are available online so you can read the text of the law where the bill would be inserted. The Legislative Reference Library's Index to Sections Affected will tell you which parts of the code you need to look at.

You can check upcoming committee hearings each week in the House and Senate. For example, tomorrow at 8 a.m., House Appropriations will meet and listen to a budgetary overview on criminal justice and transportation issues, while on Wednesday at 8 a.m. the Transportation and Homeland Security Committee will hear testimony regarding the Department of Public Safety and border security.

There's a free, personalized bill tracking and alert system - MyTLO - where you can sign up for bill and meeting alerts - essentially the same logistical information a lobbyist needs to do their job. You can get email alerts when the committees post their agenda each week, then triage the bills to identify ones you care about for blogging purposes. Then you can watch the video record from the House and Senate websites in real time or at your convenience later in archived format.

Armed with that information and supplemented by other news and blog accounts, it's possible for bloggers to independently track the process and add strong supplemental coverage to MSM reporting that adds to instead of just parroting or competing with dwindling capitol coverage.

* * *

There's simply no substitute for information provided by a free press to make a democratic system function. Right now media downsizing is creating significant gaps in public knowledge and so far, not enough "grassroots media" or other sources have stepped up to systematically, routinely fill that void, the encouragement of which is part of my purpose for sharing the resources in this post.

I was asked recently by a national reporter whether blogs and grassroots media would grow enough to counteract the shocking decline in political reporters assigned to cover daily legislative beats. I replied that it was conceivable, but not particularly likely. It's a rare, compulsive editorialist who tracks legislation in that much detail if someone's not paying them to do it.

On criminal justice topics, our state suffered a significant loss when John Moritz of the Fort Worth Star Telegram took a buyout last year and left the capitol press corps. He was among the relatively small number (count 'em on one hand) of capitol reporters who routinely covered criminal justice legislation in significant detail, so now there will be one fewer pair of experienced eyes watching the process and less information available for the rest of us.

Similar gaps arise on other issues every time a newspaper or TV station reduces capitol staff. Blogs can't by themselves solve this problem for the same reason the MSM has trouble in the online medium: there's no business model to sustain the work. But episodically, in any given niche, blogs can and do mitigate some of the loss.

Graffiti-related odds and ends

Several interesting graffiti-related items recently came to my attention:

Check out the photo blog ATX Graffiti for some visually stunning graffiti along with more mundane street graff.

The city of Fort Worth says it's reached the end of its rope with an enforcement-only approach to graffiti, and will try "art therapy to students who are in the juvenile probation program" and more public murals to combat graff.

An award winning youth facility in Brownsville includes "graffiti art workshops" among it offerings.

A Galveston resident is angry at a specfic tagger and suggests in a letter to the editor, "Maybe the people of Galveston need to put up some 'kill graffiti artist' signs, like the 'kill looters' signs we put up after Ike."

The graff artist who created the Obama "Hope" poster was jailed in Boston.

An anthropologist told the Indianapolis Star, "Graffiti is one of the oldest forms of class-based social protest .... The disenfranchised have been making marks on public buildings for centuries."

Yarnbombing: Can knitting be graffiti?

Cell phone trafficking in Texas prisons

Mike Ward at the Austin Statesman has an excellent piece this morning describing in detail how investigators believe cell phones and other contraband were smuggled onto Texas death row ("Texas prison cell phone smuggling blamed on inmate rings," Feb. 15):

Instead of the phone being smuggled by a single corrupt guard, as originally thought, investigators now say it and dozens of others might have been put in the hands of Texas' worst killers by an intricate network of supporters and their families who used code words, fake names, money transfers, prearranged drop sites and even a secret compartment at the bottom of a garbage can to get the phones inside what is supposed to be the most secure part of Texas' prison system.

Investigators say they believe several organized groups are involved in the trafficking.

"From the time someone puts up the money to get the phone for an inmate, there may be six to eight sets of hands involved with that phone, six to eight different people who do one thing or another," said the prison system's top investigator, Inspector General John Moriarty. "It's a convoluted, complicated network that's very difficult to trace. And it's going to be very difficult to shut off, because as soon as we bust someone, another person will step in and start it all over again.

"The demand is the problem. It's huge."

If nothing else, the new details explain why smuggling cell phones into Texas prisons continues almost unabated four months after [Richard] Tabler's arrest triggered an unprecedented lockdown of the 154,800-inmate system, a new zero-tolerance policy on all contraband and an emergency request by prison officials for $66 million to upgrade security to curb the problem.

TDCJ had earlier announced it had caught dozens of guards smuggling cell phones onto prison units, so this news doesn't necessarily exonerate TDCJ from allegations of guard corruption, but it certainly complicates the picture involving cell phone smuggling and makes it a more difficult challenge to solve. Definitely read the whole thing.

When did rape become just a civil rights violation?

Via the Carnival Against Sexual Violence and Female Impersonator, we get more information about Montague County Sheriff Bill Keating who allegedly sexually assaulted a female informant, threatening her with jail if she did not perform oral sex and act as his snitch. According to the US Attorney from Texas' Northern District:

Signed plea papers have been filed with the Court in which William E. Keating, 62, admits that on November 14, 2008, while he was the elected Sheriff of Montague County, Texas, he willfully deprived another person, L.M., of her civil rights while under color of law, when he sexually assaulted her. ...

According to the factual resume filed in the case, at approximately 9:00 a.m. on Friday, November 14, 2008, Sheriff Keating, dressed in civilian clothes with his sheriff’s badge and gun in plain view on his belt, and other Montague County Sheriff’s Office employees, executed an arrest warrant at a residence occupied by the victim, L.M., and her boyfriend. As they entered the residence, L.M. and her boyfriend were asleep in a bedroom of the house. Sheriff deputies arrested the boyfriend on the outstanding warrant and removed him from the bedroom. Deputies searched the residence and discovered a bag that contained utensils and other articles used to manufacture methamphetamine. Deputies also located a plastic container that appeared to have trace amounts of methamphetamine on it.

After deputies removed the arrested man from the bedroom, Sheriff Keating ordered the other deputy to leave the bedroom so that L.M. could get dressed. Sheriff Keating then closed the door and, once alone with L.M., told her, “You are about to be my new best friend.” He told her that he found illegal drugs in the residence that belonged to her and that for her to avoid going to jail, she would be required to “assist” him. Keating admitted that the assistance he referred to included oral sex with him on multiple occasions and an agreement to act as an informant for the Montague County Sheriff’s Office. Keating told L.M. that if she complied with his request, that he would help her get a job, a place to live and that she wouldn’t be criminally charged with possessing any drugs or drug-making equipment that was found in the home. Keating also told her that if she didn’t comply, she would go straight to jail.

After Sheriff Keating and L.M. left the bedroom, he told her to get into his personal vehicle that was parked outside of the residence. He then drove to a secluded area in Montague County and instructed her to perform oral sex on him, and in the process, grabbed the back of her neck and pushed her head down into his lap, causing her pain and bodily injury.

That kind of abuse of power is scary because it's so likely to remain concealed, since a meth-cooking rape victim is unlikely to ever come forward.

Two questions arise from this news: 1) Should sexual assault only be charged as a "civil rights violation" when it's perpetrated by a peace officer?, and 2) Given that he wasn't actually charged with rape (at least yet), was it appropriate to let the Sheriff out on bail given the nature of his offense? I doubt a judge would grant him bond if the charge had been "aggravated sexual assault." As things stand, I'm not even sure if this plea agreement would get him on the sex offender registry.

Related Grits posts:

• Montague County flooded with contraband, closed after FBI raid
• More border Sheriff corruption ... this time on the Red River

Calumny and Innocence

On Saturday, Kathy and I visited the Blanton Art Museum, and I was particularly pleased to learn of this 16th century engraving by Giorgio Ghisi depicting a famous scene from ancient Greek art and literature - the Calumny of Apelles. According to the Museum's website:

Apelles was the most famous painter in ancient Greece. Maligned by an envious colleague, he devised an allegory of Calumny. In an essay on the theme, the Roman satirist Lucian gave the only description of the painting to survive. Its re-creation became a favorite challenge for Renaissance artists. Giorgio Ghisi's engraving is one of the best-known versions. Reproducing Luca Penni's design, it closely follows Lucian's description: Calumny, accompanied by Deceit and Envy, drags Innocence before a donkey-eared man, flanked by Ignorance and Suspicion. Penni's embellishments include the background motif of Time rescuing Truth.

What an excellent artistic allegory for the innocent accused!

MORE: I want to learn more about the Calumny of Apelles' ancient origins and its various artistic renditions over time. Here's a description of an earlier 16th Century version from the Italian artist Andrea Mantegna:

Sitting on a throne is the judge with large, ass's ears, extending his hand to Calumny (Slander). Behind him stand Suspicion on the left and Ignorance on the right who maliciously advise him. Calumny holds a torch in one hand to suggest her blazing fury, and with the other hand drags a young man by the hair. He stretches out his hands to heaven and asks the gods to witness his innocence. Envy, a thin pale man, leads Calumny, while two servants, Treachery and Deceit, adjust her hair and dress. The last two figures in the procession are Repentance, a mourning woman who wrings her hands, and finally Truth, pointing to heaven and with tears in her eyes.

In Botticelli's most famous rendition of the theme, Envy, Malice and Deceit were all women.

Flawed recruitment, retention harming TYC morale

A retired TYC training specialist and current McLennan Community College juvenile corrections teacher, Mike Miller, offered up a guest column in the Waco Tribune-Herald yesterday ("Gritty challenges at TYC") declaring that recruitment and retention of quality staff at TYC remains the agency's central shortcoming. According to Miller:

Job stress contributes to a high turnover rate. Inappropriate staff are allowed to remain employed just to cover the shifts. Most earn the same as more competent co-workers because of the lack of job performance accountability.

This fact is noticed and resented, works as a contagion and impairs workplace morale and efficacy of TYC’s prescribed youth treatment procedures.

The solution, he says is for the agency to "hire and retain qualified, dedicated direct-care staff"; read the full column for his specific suggestions.

What law enforcement money was included in final stimulus plan?

Well, despite my most sincere urgings, Congress included a boost to the federal Byrne grant program in its just passed stimulus package. A friend from the prosecutors' camp forwarded the list which included a surprising twist - adding "national, regional, and local non-profit organizations" to the list of eligible grantees for $225 million in competitive grants:

Below (and attached) are the summary of the final compromise bill released last night:

o $2 billion for the Byrne JAG formula grant program;

o $225 million for Byrne competitive grants (see purposes below);

o $225 million for Violence Against Women programs, of which $175 million is for the STOP grants and $50 million is for the transitional housing assistance grants program;

o $1 billion for the COPS Office for the hiring and rehiring of additional career law enforcement officers and civilian public safety personnel. The bill waives the 25% local match and the $75,000 per officer cap;

o $40 million for competitive grants to provide assistance and equipment to local law enforcement along the Southern border and in High-Intensity Drug Trafficking Areas to combat criminal narcotics activity stemming from the Southern border, of which $10 million shall be for ATF’s Project Gunrunner;

o $225 million for Indian Country grants (see text below);

o $100 million to be distributed by the Office for Victims of Crime (see text below);

o $125 million for assistance to law enforcement in rural areas (see text below); and

o $50 million for Internet Crimes Against Children initiatives.

Other provisions:

o $2 million for DOJ’s Inspector General’s office (to track the use of the dollars);

o $10 million for management and administration and oversight of programs within the Office on Violence Against Women, the Office of Justice Programs, and the COPS office. No administrative overhead costs shall be deducted by DOJ from these programs;

o DOJ will be required to submit a spend plan to the Hill within 60 days of enactment;

o The conference report text on the Byrne Competitive Grants is as follows: “for competitive, peer-reviewed grants to units of State, local, and tribal government, and to national, regional, and local non-profit organizations to prevent crime, improve the administration of justice, provide services to victims of crime, support critical nurturing and mentoring of at-risk children and youth, and for other similar activities;”

o The report text on the rural law enforcement section reads as follows: “to combat the persistent problems of drug-related crime in rural America. Funds will be available on a competitive basis for drug enforcement and other law enforcement activities in rural states and rural areas, including for the hiring of police officers and for community drug prevention and treatment programs;”

o The report text on the victims’ compensation section reads as follows: “to support State compensation and assistance programs for victims and survivors of domestic violence, sexual assault, child abuse, drunk driving, homicide, and other Federal and state crimes;” and,

o The report text on the tribal assistance reads as follows: “to assist American Indian and Alaska Native tribes, to be distributed under the guidelines set forth by the Correctional Facilities on Tribal Lands program. The Department is directed to coordinate with the Bureau of Indian Affairs, and to consider the following in the grant approval process: (1) the detention bed space needs of an applicant tribe; and (2) the violent crime statistics of the tribe.”

The bill and report text (explanatory statement) are up on the House Rules website: http://www.rules.house.gov/bills_details.aspx?NewsID=4149.

All of these funds are to be available until September 30, 2010. What, exactly, that means and how, exactly, that provision will be interpreted by the Hill and DOJ will become clearer in the next days and weeks.

So, sometime this year, Governor Perry will get a larger pot of Byrne grant money than in years past and he'll need to dispense it in a relatively short period of time. Even though the section on rural law enforcement specifically authorizes regional drug task forces, I hope Gov. Perry instead spends the money on new drug treatment and prevention programs simultaneously made eligible under the bill, which are needed in rural areas a lot more than some bastard reincarnation of the old, Tulia-style drug task forces.

Outgoing Sheriff went on forfeiture-backed spending spree

With Chairman John Whitmire and the Texas Senate Criminal Justice Committee poised to exercise greater oversight over asset forfeiture accounts controlled by local law enforcement agencies, a reader points to an example from the chairman's home county which shows how such monies are subject to whimsical, unregulated and politicized spending. According to Click2Houston.com (Feb. 6):

Sheriff's department records reviewed by Local 2 Investigates show that former Sheriff Tommy Thomas began draining the department's asset forfeiture account shortly after his November defeat at the polls.

The account is comprised of money seized from drug dealers and other criminals, and it was successfully used in the 1990s to build a state-of-the-art firearms training range in Atascocita.

Local 2 Investigates found the new sheriff will have millions less in that fund for any similar big-ticket projects because of the spending that started in the days following his win at the polls. Records show Thomas spent more than half of that money in just two months, despite having kept the account balance near $9.7 million for at least three years.

"It was seized during my tenure," said Thomas by telephone from a hunting trip. After his defeat on Election Day, records show Thomas quickly spent $5 million on items that could end up costing taxpayers even more money, according to current county officials.

As it turns out, a lot of the money was wasted or will cost taxpayers more in the future:

The new sheriff said 105 digital dashboard video cameras did not come with the supporting software, so they cannot be used without spending additional money. Cars may end up costing taxpayers more as well. The former sheriff also committed to buying 44 new patrol cars from a dealership in Caldwell, Texas. The cars remain idle on the dealer's lot and current county officials blame the hurried way that the deal was handled. The new sheriff was able to stop the asset seizure money from being used, so now the usual taxpayer-funded car budget will be used.

The cars were ordered without using the county fleet office, which usually employs a specific process for all county vehicle purchases.

"Normally I buy all their replacement vehicles and that's why this was an odd request for them to be buying them to begin with," Harris County Fleet Director Keith Branner said. "I really don't know what the urgency was, other than to deplete that fund." ...

He said the cars were ordered with rear spoilers and lighting equipment that the county usually does not pay for, so now each car will cost hundreds more since the cars are already equipped with the added features.

While these expenditures appear to be mostly for "law enforcement purposes" as required by Chapter 59 of the Code of Criminal Procedure, they were also overtly political, aimed not at filling some pressing need but to reduce funds available for the man who would replace the outgoing Sheriff:

"I did spend a lot after Election Day," said Thomas. "I don't know what this new guy's going to spend it on, so I wanted to make sure the people who seized that money were the ones to benefit from it."

Unfortunately, there's not a lot of benefit from buying digital dashcams without the accompanying software or adding spoilers onto county squad cars.

The incident seems to confirm the sense of the Senate Criminal Justice Committee in its recent report (pdf) that asset forfeiture funds are viewed by many law enforcement as "a profit-making, personal account." Clearly Thomas viewed the forfeiture account as his money, not the taxpayers and felt at complete liberty to spend it for personal and political motives (and small-minded, spiteful one at that), not to fill some presssing need.

See related Grits posts:

• DA's overreliance on asset forfeiture violates the law
• Take the profit motive out of asset forfeiture
• Senate committee: Asset forfeiture too often a profit-making venture
• Asset forfeiture dependent Sheriff views Hwy 77 as 'piggy bank'
• Asset forfeiture funds may get more accountability, money diverted to drug courts
• Levin: Assets seized from criminals shouldn't become political slush fund
• Wichita Falls proves asset forfeiture can't finance drug units
• What's the difference between a pirate and a privateer?

Why no criminal prosecution when companies bribe?

I've been railing against bribe takers and bribe givers in public corruption cases on this blog for some time now; we've even seen Texas Sheriffs sent to jail and commissary vendors prosecuted in state court over the practice. But after learning from Lindsay Beyerstein about federal "deferred prosecution agreements" for corporate wrongdoers, I'm now wondering why companies implicated in federal bribery cases don't also face criminal prosecution?

The latest corporate crook caught red-handed in a bribery scandal is one of Houston's most prominent companies. According to Voice of America:

A major US engineering and military contractor has agreed to pay more than $500-million in penalties and fees to settle bribery allegations against one of its subsidiaries that operates in Nigeria. Halliburton Company, which until 2007 controlled the Houston, Texas-based KBR (also known as Kellogg, Brown, and Root), has agreed to pay $382-million of a $402-million fine and $177-million in fees incurred through US federal charges lodged against KBR by the Securities and Exchange Commission (SEC). KBR will pay $20 million.

The SEC alleges that KBR disbursed millions of dollars in bribes to Nigerian officials to win contracts for building a $6-billion gas liquefaction plant on Nigeria’s Bonny Island. ...

The alleged bribes took place over a decade, between 1994 and 2004. During part of that time, KBR’s parent company, Halliburton was headed by Dick Cheney, who stepped down as CEO in 2000 to become Vice President of the United States.

It's fine and proper for the company to pay fines to the SEC, but these decisions were made by individual human beings, not just some faceless corporation. Shouldn't somebody be headed to the hoosgow over this?
RELATED: Oklahoma insurance commissioner convicted of bribery.

False positives plague drug tests by Bexar probation

Not every actual innocence case involves murders, rapes, or other heinous crimes. In San Antonio, between 2/3 and 3/4 of positive urine tests from the Bexar probation department resulted in false accusations of drug use, Greg Harman at the SA Current reports ("Urine trouble," Feb. 12). Even so, but the department still doesn't offer routine confirmation when probationers test positive:

Almost immediately after closing their in-house drug lab, Bexar Probation began receiving startlingly high numbers of positive drug results from its chosen cup sniffer, Treatment Associates. Suspicions were raised.

Since the original contract between the County and TA provided for free confirmation testing via the industry’s leading technology — gas chromatography-mass spectrometry, or simply GC-MS — some of those early positives were apparently shipped for confirmation.

Of 26 “positive” drug tests performed by TA that were shipped off for confirmation by GC-MS operator Norchem Drug Testing during the first four months of TA’s contract, only eight came back actually tainted by opiates, cocaine, or methamphetamine, according to newly released documents.

Some of these confirmation requests contained several classes of drugs. In one case, a probationer was accused of having opiates, methamphetamine, and THC in their system at the same time. After running the same pee through GC-MS, all three triple-strikes were cleared by GC-MS. This happened three times in a row to the same probationer.

Considered by drug class, the cases secured by San Antonio Attorney David Van Os as part of the discovery period of one of his lawsuits naming Bexar Probation and Chief Probation Officer Fitzgerald represent a total of 39 alleged positive claims of drug use. When checked against GC-MS, however, only 10 of those cases — one in four — came back positive.

An amended contact between the County and TA in July of last year added a $25 fee for GC-MS confirmation, but according to current and former case managers, these confirmation tests were rarely used by the department after privatization, and were quickly done away with altogether.

I'd be willing to bet these data partially explain why Bexar County's probation revocation numbers are so high compared to the rest of the state - they're routinely relying on false accusations of drug use by probationers without doublechecking to make sure the results are accurate. Judges in Bexar know full well about this situation so one can only assume they support probation director Bill Fitzgerald's decision to revoke probationers based on faulty drug tests.

Bexar apparently is refusing to perform routine confirmations because it doesn't want to pay the $25 per test to do the job right, but that's probably a penny-wise, pound foolish decision. Austin attorney and former Democratic Attorney General candidate David Van Os has sued the agency to correct the policy, and if he prevails it will be a lot more costly for the agency than if they'd just done the job right in the first place.

DA's overreliance on asset forfeiture income violates the law

Having written the other day about asset forfeiture abuses, I was pleased to do a TV interview yesterday with a local reporter from the Valley who was in Austin doing an investigative feature on the topic. Without queering his scoop (which I'll be sure to link to when his story runs), I was shocked when he showed me documentation of a District Attorney's office that received fully 1/3 of its annual budget, including salaries, from asset forfeiture income.

It strikes me that the commissioners court in that county is violating Texas' asset forfeiture law, which reads in relevant part:

"A commissioners court or governing body of a municipality may not use the existence of an award to offset or decrease total salaries, expenses, and allowances that the agency or the attorney receives from the commissioners court or governing body at or after the time the proceeds are awarded. The head of the agency or attorney representing the state may not use the existence of an award to increase a salary, expense, or allowance for an employee of the attorney or agency who is budgeted by the commissioners court or governing body unless the commissioners court or governing body first approves the expenditure."

The Senate Criminal Justice Committee's report (pdf) on the topic alluded to this practice, declaring, "Unfortunately, the under-funding of these offices have led many to use Chapter 59 [asset forfeiture] funds as a necessity to cover expenses and provide needed services to their communities without placing pressure on state and local officials to provide adequate funding" (pp 66-67).

That's not just "unfortunate," though - under this provision of the statute, the correct adverb would be "illegally." What's unfortunate is that there's no meaningful oversight of forfeited funds and no prosecution when government officials break the law.

An agency that reliant on forfeiture money has zero incentive to reduce drug smuggling in their community. In fact, if drug smuggling were to end tomorrow, the local DA couldn't make his payroll.

The folly of impouding cars for no insurance

Dallas and Carrollton are now impounding cars of drivers with no insurance when they're pulled over at traffic stops - that's about one in four cars on Texas roads. Meanwhile, more than 200 departments statewide are participating in a traffic warrant roundup aimed at generating revenue. More than 10% of Texas drivers have outstanding arrest warrants for traffic fines, many of them for no insurance (which carries with it the hefty, ironically named "driver responsiblity fee").

It really makes you wonder whether there's enough jail space for all the scofflaws or enough impound lot space for all the cars. On the question of vehicles with no insurance, I've said before:

My own preferred solution to the crisis of uninsured drivers is as simple as it is unlikely to pass in Texas anytime soon: Use the gas tax to implement pay at the pump insurance for minimum liability so that every driver becomes automatically covered via no-fault insurance on terms more closely regulated by the state. As an added bonus, since companies would all be paid the same for every driver, they would be forced to compete on quality of service instead of striated pricing schemes.

Lately I've been noticing insurance companies beginning to avoid using credit scores to rate drivers and, in some cases, shifting to a straight up "pay by the mile" insurance premium. That's essentially similar to a pay at the pump scheme, except with pay at the pump there would be no option to not carry minimum liability coverage.

I consider the use of law enforcement to subsidize/maximize insurance company profits unnecessary and untoward, whereas pay at the pump would solve the chronic problem of uninsured drivers overnight, reduce rates by pooling risk more comprehensively, and free up police for other, more important duties. Sure, the threat of impoundment will make some people pay, no doubt, but only those who can afford it. In an economic downturn with new layoffs being announced every day, larding extra punishments on the poor seems like a a particularly untenable approach.

Criminal justice committees in the Texas House

Texas House committee assignments are (finally) out today - see here (pdf). Here's the list for criminal justice related committees:

Corrections:

Chair: Jim McReynolds
Vice Chair: Jerry Madden
Kirk England
Terri Hodge
Harold Dutton
Lois Kolkhorst
Marisa Marquez
Armando Martinez
Sid Miller
Solomon Ortiz, Jr.
Ralph Sheffield

Criminal Jurisprudence:

Chair: Pete Gallego
Vice Chair: Wayne Christian
Robert Miklos
Joseph Moody
Paula Piereson
Allen Fletcher
Terri Hodge
Carol Kent
Debbie Riddle
Allen Vaught
Hubert Vo

Public Safety:

Chair: Tommy Merritt
Vice Chair: Stephen Frost
Joe Driver
Hubert Vo
Lon Burnam
Phil King
Tryon Lewis
Barbara Mallory-Caraway
Eddie Rodriguez

Some initial thoughts, in no particular order:

First, each of these committees has new chairs. On Corrections the chairmanship flipped parties, though that may make less of a difference policy-wise than the new chairs on the other two panels.

Corrections looks like it will be a particularly reform-minded committee, as it's been in each of the last couple of sessions. (OTOH, they basically have to be - the prisons are stuffed full of mostly parole-eligible, nonviolent offenders and the committee must either embrace diversion programs or spend billions to build new prisons.) I'm sorry to see Jerry Madden lost his chairmanship, but he and Jim McReynolds worked closely together last session and the new chair was on board with most of the work Madden was doing there. Democrats dominate the committee by a 7-4 margin.

I'm excited to see Pete Gallego named chair of the Criminal Jurisprudence Committee, since that's where a lot of the innocence-related legislation went (and died) during the 80th Legislature. Last time the committee was dominated by Democrats (as it is this go-round) but became a killing field for reform bills while passing a slew of criminal penalty increases (so-called "enhancements"). This session, the budget crunch makes passing ever more lengthy sentences a less politically feasible approach. Allen Fletcher on that committee is the only former police officer currently serving in the House.

On Public Safety (which last session was the "Law Enforcement" Committee), Tommy Merritt, a Longview Republican, replaces Joe Driver as chair. Merritt wasn't on any criminal justice-related committees last session so I don't have a good sense of his positions on the hot-button law enforcement topics of the day, but my sense from his floor votes is that he's a bit more libertarian than Driver, who tended to reflexively side with prosecutors and police.

A big loss on the criminal justice front was Sylvester Turner's (perhaps predictable) departure from the Appropriations Committee, where he played an incredibly pivotal role last session in funding diversion programs and opposing new prison construction. There are quite a few good people on Appropriations, though, who conceivably could pick up the ball in that area. We'll know more when Chairman Jim Pitts names the membership on that panel's Criminal Justice Subcommittee, which is where most of the heavy lifting will happen.

With Lois Kolkhorst chairing Public Health after Diane Delisi's retirement, I'm willing to bet needle exchange legislation will have a lot easier time making it through that committee (or at least getting a vote). The full House last session supported a pilot program in a floor amendment so if a bill can make it out of committee, it's likely to pass.

Also, with the issues swirling around reconstructing UTMB-Galveston, it's perhaps telling that Galveston's Craig Eiland is Speaker Pro-Tempore and also will serve on Appropriations. The UT-System is suggesting moving the bulk of the medical facilities off the island except for the state prison hospital located there, but Eiland will likely have a lot to say about those decisions. The full impact of Hurricane Ike on Texas' prison medical services has yet to be fully documented, but from what I hear the Department of Criminal Justice is still reeling from the disruption of medical services.

Committee assignments are arriving incredibly late this year. By this time last session all of these committees had already begun meeting. So while the new chairs mean there could be significant staff turnover and they'll probably need another week to take care of organizational concerns, after that I'd expect things to kick into gear pretty quickly.

MORE: See additional commentary on committee appointments from Burnt Orange Report and Postcards from the Lege. Kuff rounds up the blogospheric reactions.

Meet Barack Obama's new Drug Czar

For those looking to read tea leaves regarding the Obama Administration's likely approach to drug policy, meet his just-appointed drug czar, Seattle police chief Gil Kerlikowske. According to the Seattle Political Intelligencer:

Many local people expected that Kerlikowske would be chosen for a federal post, but were surprised by this appointment, saying he rarely speaks on drug enforcement, unlike his platforms on gun control and community policing.
But last fall, they said, Kerlikowske began working on drug-policy reforms for street users in certain neighborhoods.
He recently gave his blessing to a pilot program in drug-plagued Belltown for officers to send drug users to treatment or job centers instead of jail. He gave his support to similar programs already operating in Rainier Beach and Madison Valley.

According to Scott Morgan at Stop the Drug War:

To be clear, Kerlikowske is not a friend of drug policy reform to any extent I’m aware of. What matters here is that I see no evidence that he is a vicious drug warrior of the sort commonly associated with the drug czar post. Given that ONDCP is mandated to oppose reform efforts and has typically embraced that role, a less confrontational and reefer madness-driven drug czar is really the best case scenario from a drug policy reform perspective.
Under Kerlikowske, Seattle has been a model for sensible marijuana policy, including the famous Seattle Hempfest at which the Seattle Police Department performs a public safety role while declining to make marijuana arrests. Following the passage of a 2004 lowest priority initiative, the city’s already-low rate of marijuana prosecutions fell even further, suggesting that Kerlikowske was responsive to the will of voters.

Jeralyn at Talk Left wonders whether this is change we can believe in:

So we could have done worse. Is that the new standard for someone we elected because he promised progressive change? "We could have done worse" is a phrase I associate with Republican appointments that weren't disasterous. Should we expect more from Obama?

For myself, though, like Pete Guither at Drug War Rant,

what I'm most interested in is what the new drug czar might not do. It would be nice if he didn't show up at state legislatures trying to prevent them from passing state laws regarding medical marijuana or decriminalization. It would be nice if he didn't go out of his way to lie to the press all the time about marijuana. It would be nice if he didn't travel around the country acting as an advance salesman for drug testing companies.

These are things that a new drug czar could legitimately fail to do. And that would be a good thing.

Stimulus debate foregrounded controversy over Byrne grants

An article at Stateline.org ("Stimulus prompts debate over police funds," Feb. 11) cited some of my past work critical of the federal Byrne grant program, for which $1.2 billion made it into Congress' final stimulus compromise. Proponents see the multijurisdictional drug task forces primarily funded by the program as job creators, but:

Critics say the task forces, because of their unique cross-jurisdictional structure, enjoy virtually unchecked law enforcement power that has been abused in the past and remain unaccountable for how they spend their money.

The American Civil Liberties Union of Texas in 2002 issued a report cataloguing 17 scandals involving Byrne-funded task forces in the state, including the imprisonment of more than three dozen African-Americans in Tulia, Texas, based on the uncorroborated testimony of a single, white undercover agent. Texas Gov. Rick Perry (R) in 2003 pardoned 35 of the defendants and authorities later shifted funding away from all Byrne-financed drug task forces in the state.

Now, as Congress reconciles the differences in the House and Senate versions of Obama’s stimulus plan, critics of the Byrne grants say lawmakers should remember incidents like the one in Tulia, Texas, as they consider police funding.

“It’s happening right now, today, in other states. There’s not a doubt in my mind,” said Scott Henson, the former ACLU of Texas official who authored the 2002 report and who favors eliminating the Byrne grant program. Byrne-funded drug task forces, Henson said, are “federally funded, state-managed and locally staffed — which means they’re accountable to no one.”

See related, recent Grits posts:

• Byrne grants: The anti-stimulus

• If Barack Obama wants bipartisanship he should remove Byrne grants from the stimulus program

• Obama shouldn't waste stimulus money on Byrne grants