The prison plan would give state corrections officials authority to allow any inmate with 12 months or less on his or her sentence to serve the remaining time on home detention with electronic monitoring.
Inmates who are over 60 or medically incapacitated could also get home detention or be confined in a hospital. In addition, inmates who achieve milestones in rehabilitative programs, substance abuse treatment, vocational training or education could receive up to six weeks off their prison terms.
The plan includes Schwarzenegger's proposal to release and deport illegal immigrant felons, and a scaled-down version of another proposal of his to change some felonies to misdemeanors so inmates could be held in county jails instead of prisons. Sentences for property crimes also would be scaled back.
A "Parole Re-Entry Accountability Program" would reduce the state parole population by 46,000 -- more than a third of those now under supervision -- depending on their crimes and behavior. Those former prisoners convicted of the least serious crimes would not be subject to parole revocation that could return them to prison.
Wednesday, July 22, 2009
California will release older inmates to save medical costs
Texas' chief court administrator launches new blog
Let me refer readers to a new blog called "CourTex" authored by Carl Reynolds, head of the Texas state Office of Court Administration, a former Department of Criminal Justice General Counsel, and a truly knowledgeable insider on the politics and policy of the subjects he works on. This makes him easily the highest profile Texas state agency head to operate a blog related to the subject matter from his job.Carl kicked things off by providing a number of links to critical information about Texas courts online, continuing with a Legislative Report, a discussion of strategic trends facing court administrators, and an informative, link-filled post about state-level "judicial commissions on children."
I've temporarily taken Grits' blogroll down to spend some time updating and revamping it this summer, but when it reappears, Courtex will be on there.
New Rule: Nobody making arrests for overdue library books gets to complain about jail overcrowding
First things first: Nobody who's arresting people for overdue library books gets to complain about jail overcrowding. Period. That part cracked me up. Tallying up the costs of using police and the jail that way, in short order it'd be cheaper to replace the books!The number of people coming into the jail every day essentially hasn’t changed, [Chief Deputy Derek] Meador said. What does seem to be different now, he and Sheriff David Duke said, is that in many cases, people are coming in and staying for longer periods.
People arrested for offenses such as unreturned library materials tend to post bond quickly and then leave.
“The persons who don’t fit in that group are staying longer,” Meador said. Some might take 10-12 days to gather the funds necessary to post bond when it might have taken a day or two before. In some other cases, people come in on felony charges and can’t make bond.
During the meeting, Duke gave the example of someone in jail on a drug-related charge — possession of certain chemicals with intent to manufacture a controlled substance — with bond set at $20,000.
A year ago, “They got out the next day,” he said. “Nowadays, they’re staying.”
What's more, if there are large numbers of misdemeanants waiting 10-12 days to post bond, that's the fault of local judges for setting bails too high for petty offenses and not giving enough personal bonds where the offender is not a significant flight risk. At some point in a declining economy, elected officials must use some common sense and prioritize scarce resources based on public safety.
Regrettably, no mention was made of new tools given to law enforcement by the Legislature in 2007 to reduce jail overcrowding: Officers may now issue citations instead of making arrests, at their discretion, for a number of common, low-level nonviolent misdemeanors, though only a few agencies have used the new authority.
In the current budget environment, it wouldn't surprise me if that changed in the near term, as tight county budgets dominated by jail spending begin to trump the habitual "soft on crime" carping because it's too expensive to incarcerate every petty misdemeanant, and of course, recalcitrant local readers. At a minimum, it'd be nice to see local media making such options part of the conversation about jail overcrowding.
Lubbock taxpayers eating costs for overbuilt jail
This is another example of a county building excess jail capacity on a speculative basis hoping to profiteer off incarceration and produce revenue. Instead, perhaps predictably, at the first sign of economic downturn the strategy falls flat. Exacerbating the problem, the Texas Department of Criminal Justice has stopped leasing beds from county jails because of its own successful efforts to keep the state prison population under control.With commissioners still days away from knowing how much tax revenue they may expect, employee raises, new hires to handle growth and long-planned projects seemed set to wait until next year.
"We're held hostage, more or less, by the jail," County Judge Tom Head said.
The budget process began this year with a letter from Head to elected officials and other department bosses asking for no increases in their budget requests for the next year.
Jail costs, as well as the county's newly created medical examiner's office, became priorities over the last year, he said.
The Texas Tech Health Sciences Center informed Lubbock County last August that they would stop providing medical examiner services by September of this year. The county had already taken over much of that work - a new, $1.7 million department appeared for the next fiscal year.
That paled next to the more than $20 million dedicated to the jail, amounting to nearly a third of the county's general fund.
Commissioners had expected the facility to generate its own revenue from federal and out-of-county inmates at this point. The county instead shipped prisoners to other jails at a cost of $250,000 a month and collected $4,500 a day from the contractor for each day work continued on the building beyond its planned opening date.
"We thought that when we were at this point, this year, we would have been in there and not upside down as we are with out-of-county inmates," Commissioner Patti Jones said.
Lubbock isn't the only county whose jail eats up an overwhelming portion of the county budget, but commissioners' desire to make money off incarceration instead of just building to meet local needs has now put local taxpayers in a position of paying for an expensive albatross with little benefit to public safety.
Tuesday, July 21, 2009
TDCJ: Paroling older offenders could save Texas $49 million per year
By comparison, Texas prison guards got 3.5% raises this year in an effort to reduce understaffing and the state financed modest increases to diversion and treatment programs to keep from building more prisons. Looking forward, though, by 2011 most official estimates see Texas experiencing severe if delayed effects in the state budget from a slumping economy, meaning legislators will be faced with cutting the budget or dipping into the state's "Rainy Day Fund."
At that point, legislators will be looking for places to cut, and this morning I ran across a brief, two-page report (pdf) on the TDCJ publications page that tells them how to save $49 million per year right off the bat. (It was published in December but I hadn't seen it before now and the Lege didn't act on the information this session.) According to the analysis, performed in response to HB 429 passed in 2007, the:
aging of the offender population has a demonstrated impact on the resources of the health care system. Offenders age 55 and older access the health care delivery system at a much higher level and frequency than younger offenders. Encounter data indicates that offenders aged 55 and over had a documented encounter with medical staff almost three (3) times as often as those under age 55. In terms of hospitalization, the older offenders were utilizing health care resources at a rate of more than four (4) times higher than the younger offenders. The 55 and older offenders comprise about 6.8% of the overall service population and yet account for more than 30.5% of the hospitalizations.TDCJ incarcerated more than 10,950 offenders over the age of 55 as of Aug. 1, 2008, the agency reported; about 5,000 of them are not serving time for so-called "3g" (violent) offenses. (More than 60% of offenders in TDCJ's institutional division are eligible for parole, according to the agency's annual statistical report - pdf, p. 15). Paroling those offenders, said the agency, would save the state more than $20 million annually in off-site medical costs, at a minimum, as well as reduce the burden on internal TDCJ medical systems.
In addition, paroling 5,000 offenders would save money by allowing the state reduce its reliance on private prison contractors:
Based on the most recent LBB offender population projections ... a reduction of 5,000 incarcerated offenders could eliminate the need for contracted temporary capacity, currently 1,899 beds, reducing current agency expenditures by approximately $29 million annually.So when Texas legislators start talking about budget cuts, TDCJ has identified $49 million per year the state could cut from the prison budget that should be discussed well before anyone starts talking about reducing staff pay.
Texas Tribune will compete with public policy coverage, original reporting
Evan Smith will become CEO of the Texas Tribune, a venture he's been working on for several months with John Thornton, a general partner of the Austin Ventures venture capital firm.
The Texas Tribune is intended to be a nonprofit entity that will publish original reporting — to be made available for free on the Tribune's Web site — and organize conferences and other events.
Smith said there will be two coverage areas: state politics and public policy. He envisions the Texas Tribune pursuing "deep-dive reporting on the big issues that are affecting Texas," such as low voter turnout, border issues, education, energy and the environment.
They also got a nice writeup in the New York Times' Media Decoder blog. Emily Ramshaw of the Dallas News was the first MSM reporter to announce she's jumping ship and joining the new venture, as announced on their Facebook Page. (You can also sign up here for announcements about their launch.) Good luck to all! If anybody can pull this off, Evan's probably just the guy to do it.
Deputies allegedly in pocket of 'outlaw motorcycle gang'
In Lubbock, Texas, two Hockley County sheriff's deputies were arrested last Friday as part of a 110-count federal indictment aimed at the Aces and Eights outlaw motorcycle gang for a methamphetamine trafficking conspiracy. Deputies Gordon Bohannon and Jose Quintanilla are accused of providing gang members with information that hurt efforts to shut down the conspiracy. They and the other 28 defendants are all charged with conspiracy to distribute and possess with intent to distribute 500 grams or more of meth, which carries a mandatory minimum 10 year prison sentence. Other defendants face additional charges.The idea of deputies in rural Hockley County operating in league with an "outlaw motorcycle gang" reminds me of the plot of the TV show Sons of Anarchy.
Inevitably such incidents are treated in the press as isolated cases that aren't indicative of any broader problem, but taken together the string of corruption cases we've witnessed in Texas has been both remarkable and alarming.
MORE: Phone recordings reveal new details in Hockley County drug investigation, from KBCD News. Also:
Click on the following document links to read the prosecution's reason for warning [Chief Deputy] Gordon Bohannon locked up between now and his trial date.
Monday, July 20, 2009
Probation officer screened job applicants for drug cartel
According to allegations in the criminal complaint, Mora received bribe payments from members of a drug trafficking organization to provide sensitive and confidential information from government records. It is alleged before the drug trafficking organization considered hiring drivers for their tractor-trailers to transport its drug loads, it would provide personal information - full name, commercial driver's license number and date of birth - to Mora, who in turn would obtained confidential and sensitive information from government sources about whether the prospective driver was on probation or supervised release or had any outstanding arrest warrants. If Mora reported no such warrants or supervision, the drivers would be hired. On the other hand, the complaint alleges that on at least two occasions in May and June 2009, Mora allegedly advised the drug organization not to hire three drivers telling a member of the drug trafficking organization that two of the drivers were undercover agents and the third was one of his own supervisees and and an FBI informant. In June 2009, Mora is alleged to have received $5,000 from a member of the drug trafficking organization for providing the confidential information regarding the third driver.Obviously ratting out undercover officers puts federal agents at risk. I also have a big problem with using probationers as drug informants, for reasons identified earlier this year by Bobby Frederick at the South Carolina Criminal Defense Blog:
If a person is trying to get clean or stay clean, they cannot repeatedly go into houses and make drug deals - sooner or later they will use and their recovery will be blown to bits. Many narcotics officers do not care if you stay clean or not - you are a tool that they use to do their job for them. Many narcotics officers do not care that you are placing yourself in danger - again, you are a tool that they require to make drug arrests. Rachel Hoffman's death in Florida, although tragic, was representative of the ethics problems that narcotics officers often ignore in their work and thankfully brought national attention to the problem.There is a fundamental contradiction between policy goals when a probationer is used as a drug informant. Putting someone on probation instead of sending them to prison implies both that the court viewed them as not dangerous enough to require incarceration and also that they're capable of possible rehabilitation. But if that person is sent back over and over into drug environments by the state, it's nigh on impossible to make the kind of clean break from reoffending and drug use that rehabilitation requires.
In this particular case, what kind of message does it send to learn that the FBI and federal probation officers knowingly encouraged an offender under federal supervision to apply for a job as a driver making drug shipments?
In the bigger public-policy picture, this example shows why anti-corruption efforts deserve greater priority in the enforcement battle against multinational drug cartels: One corrupt official can easily thwart the work of many, many others in the system, and too often that's exactly what happens. Americans tend to think of public corruption as more typically a Mexican problem, but we've seen far too many examples of corruption on the US-side of the border to take much comfort in such stereotypes.
Sunday, July 19, 2009
Tulia Ten Years Later
Many Tulia residents and those associated with the July 23, 1999, raid by numerous law enforcement agencies shy away from talking publicly about the incident that catapulted the Swisher County town of about 5,000 into the spotlight and brought the discussion of small-town racism to the forefront. For some, including many of the 47 defendants arrested, the calamity of the investigation and the ensuing drama remains a wound that has not healed.
The episode began when dozens of people - most of them poor, African-American and with prior run-ins with the law - were hauled from their beds and paraded in front of local media on the morning of July 23.
The arrests were the culmination of a monthslong investigation by the Panhandle Regional Narcotics Trafficking Task Force, with much of the work conducted by undercover officer Tom Coleman. Many of the defendants were subsequently given long prison sentences by juries, and others accepted plea bargains.
But cases that first appeared solid began to collapse as Coleman's testimony drew greater and greater scrutiny. It was ultimately determined that Coleman was not credible after he gave conflicting testimony in court. Meanwhile, it was revealed that he had been arrested for theft, a charge for which he was never convicted. But his arrest was initially withheld from the defense, further eroding the credibility of the prosecution.
In the end, 35 defendants were pardoned by Gov. Rick Perry on Aug. 22, 2003, and taxpayers in 17 of the counties that participated in the regional task force paid them about $5.9 million as part of a settlement. The defendants split about $4 million, and attorneys were paid the rest.
Housing the incarcerated defendants was estimated to have cost Swisher County residents about $230,000, which translated to a 5.8 percent increase in county property taxes, according to the county in 2000. In April 2003, the county also agreed to pay $250,000 to the defendants in exchange for immunity from civil lawsuits.
In the end, all of Texas' drug task forces were ultimately consolidated under the Department of Public Safety and later disbanded by Governor Perry when other scandals kept cropping up in town after town across the state.
We tried after the Tulia scandals to convince the Texas Legislature to require corroboration of some sort in undercover drug buys like those Tom Coleman supposedly performed, but they extended that corroboration requirement only to informants, but not to peace officers. Thus now, ten years later, despite the fact that Tom Coleman was later convicted of perjury, the state can still obtain convictions based on the uncorroborated word of a single undercover officer.
See also a short video from the Globe-News featuring brief interviews with participants.
MORE: From Rev. Alan Bean at the Friends of Justice blog. As backgrond, Alan was a principal in the local Tulia organization, Friends of Justice, that formed to rally support around the case. Since then he's moved to the Metroplex and has been working on a variety of other civil rights cases including in Jena, Louisiana.
Texas sex offender registry includes kids as young as ten
Indeed, writes Jennings, "according to a Dallas Morning News analysis of the Texas sex offender registry, there are about 4,000 people on the registry who were younger than 18 at the time of their crime, including 1,004 younger than 14." Even folks over at the Texas Association Against Sexual Assault were "stunned" that children so young were required to register. I actually was aware (from reading the law) that it was possible for children that young to wind up on the registry, but I had no idea that one-quarter of the juveniles registered were under 14 when they committed their offense.The faces of child sex offenders are startling – chubby cheeks, big eyes, a mop of hair, or wispy strands held back with barrettes. The descriptions on Texas' public registry are equally jolting: 4 feet tall, 65 pounds; 4 feet, 2 inches, 70 pounds.
"Those are not the people that we're walking around terrified of," says Michele Deitch, a University of Texas law professor.
The inclusion of children as young as 10 on the state's public sex offender registry is a little-known policy – even to juvenile justice experts such as Deitch.
"I'm absolutely a little bit shocked that kids that young can be on the list," says Deitch, who teaches juvenile justice policy at the LBJ School of Public Affairs.
She's stunned because public registration contradicts the purpose of juvenile justice: to give kids a second chance. In the case of some juvenile sex offenders, their criminal records are off limits, but information about their crime is easily accessible on the Internet.
"It is a terrible situation," Deitch says. "The juvenile justice system is designed to rehabilitate kids and to make sure that they can change."
According to the Texas Department of Public Safety, there is no minimum age for inclusion on the state list. But a child must be at least 10 to be handled by the state juvenile justice system, so a judge may order an offender that young to register.
Saturday, July 18, 2009
Fallible Fingerprints: The Dustup over Cognitive Bias
In 2004, cognitive neuroscientist Itiel Dror and Dave Charlton, a veteran fingerprint examiner and doctoral candidate, chatted over coffee in a Brighton hotel suite after a gala dinner at the U.K. Fingerprint Society's conference. Charlton was upset. Months earlier, [Dr. Itiel] Dror had designed a study to see if fingerprint examiners' decisions on matches might unconsciously be biased by information they received about a case.
Would examiners change their opinions about prints they'd called matches five years earlier, Dror wondered, if they viewed them again in a different context?
Charlton, supervisor of a U.K. police department's fingerprint lab, editor of the Fingerprint Society's journal Fingerprint Whorld and a true believer, was certain they would not. He urged Dror not to waste his time.
But Dror was insistent: "I said, 'Indulge me! Let's do it.'" And so, five international experts were put to the test covertly, re-examining matched prints from their own old cases while armed with different — and potentially biasing — "case information." They'd agreed to be tested, but they didn't know when — or even if — test prints would cross their desks.
That night in Brighton, the results were in. For Charlton, they were a jaw-dropper.
"Not only some, but most, of the fingerprint examiners changed their minds," said Dror, who was far less surprised by the flip-flopping. As an expert in human thought processes and the hidden power of cognitive bias — an array of distortions in the way humans perceive reality — he had a decided advantage.
Fingerprints have been accepted as unassailable evidence in courts for more than 100 years, but vaunted claims of their uniqueness and infallibility still lack scientific validation. By contrast, the existence of cognitive bias and the subjective nature of human judgment have been thoroughly established by hundreds of scientific studies going back decades.What's more, the experiment was replicable with different fingerprint examiners using different fact scenarios:
In another study, [Dror's] team had six international experts each view eight latent prints that they'd each previously examined, but now they were accompanied with a new, mundane context — something like, "the suspect has confessed," or, "the suspect is in custody." More expert reversals followed. Four of the six reached different conclusions. One changed his mind three times.Indeed, this isn't just a bias in experimental situations but occasionally in the real world:
in a landmark U.S. case, Stephan Cowans of Boston became the first person to be convicted on fingerprint evidence, then — after serving six years in prison for shooting a police officer — exonerated by DNA. Two prosecution experts and Cowans' two defense experts (formerly of the same fingerprint unit) had all verified the match. After his 2004 release, Cowans revealed his earlier certainty about fingerprints by saying that on the evidence presented in court, he would have voted to convict himself.What can be done to reduce cognitive bias among fingerprint examiners and other forensic workers? Dror advocates removing forensics from the purview of law enforcement and severely limiting the amount of contextual information given to forensic workers about individual cases:
A key National Academy of Science report recommendation — to move crime labs out from under law enforcement's wing and create a new national institute of forensic sciences — would surely help impartiality. If lack of funding delays that, "so be it," Dror said. "But you can't have it both ways. If there's no reform, don't say, 'I am 100 percent objective, I make no mistakes, there is no problem.'"
In the interim, some steps can be taken. When further examiners are called on to verify the work of a first, they should always examine the evidence independently without knowing the earlier results.
Efficiency, scientific validity and objectivity could also be dramatically improved for a relatively small financial outlay by establishing and enforcing "best practices" in crime labs (another NAS report recommendation.) Best practices are formally documented standard operating procedures, processes and rules for how to do your work that are specifically designed to make it effective and efficient, and avoid error. Having best practices that all fingerprint examiners everywhere must adhere to would be a big step forward, Dror believes, but only if they are science-based and validated by experts in cognitive neuroscience, psychology and thought processes.
Today, guidelines are provided by Scientific Working Group on Friction Ridge Analysis, Study and Technology. However, these are only guidelines with no mechanism of enforcement. "What is more," Dror said, "none of the current guidelines really directly and adequately deals with confirmation bias and other cognitive issues." ...
He favors the immediate implementation of the practice of withholding all nonessential crime details from forensic scientists. Detectives, investigators, lawyers, judge and jury need to know if fingerprints are related to terrorism or bicycle theft, but for fingerprint examiners counting ridge characteristics, loops, whorls and other minutiae, such context is irrelevant.
"We're not going to send a fingerprint to Interpol if somebody stole a bike," Dror said. "But we need to make sure the fact that the examiner thinks it's a terrorist or the Madrid bomber doesn't cloud their judgment too much." To Dror, it's like his personal physician needing his medical history, while the lab technician counting his white blood cells for a blood test does not.The issue of cognitive bias comes up again and again in discussions of forensic errors. While it seems like it should be the easiest problem to fix - managing who gets what information - the reaction to such suggestions from forensic workers tend to range from defensive to openly hostile, as this excellent Miller-McCune article demonstrates. In the wake of the National Academy of Sciences report, we're going to see a revamping in the near future of methodologies in many forensic fields, and removing sources of cognitive bias must surely be a key component of any such reforms.
Friday, July 17, 2009
New DPS Director
Public Safety Commission plans to cancel contract with Driver Responsibility fee collections vendor
Chairman Allan Polunsky, in particular, was frustrated that a contract paying the vend0r $12 million per year over the last three years - up from $4 million the first full year it was issued - had been renewed recently for a five-year term without the PSC ever being notified or taking a formal vote. The vendor - an Austin-based company called MSB Government Services - takes 4% off the top from everything it collects, the company's President told the Commission. Polunsky stated in no uncertain terms that the process had been unacceptable and the contract should have - and would be - put out for bid.
Other commissioners and DPS' General Counsel were concerned with the company's use of DPS letterhead on its dunning letters, particularly those which are not form letters but are specifically tailored to individual cases.
Company officials had come prepared to suggest using more "assertive, collections-oriented verbiage" in letters and "daily" phone calls aimed at those who owe back surcharges. That development, if authorized, would make the use of DPS' name and letterhead even more problematic. Given that a whopping 6% of Texas drivers presently owe Driver Responsibility surcharges, that would put DPS' official imprimatur on some fairly harsh communications directed at a significant percentage of the public.
In the end, Commissioners cut off MSB's presentation in mid-stream and demanded that they (and DPS staff) return at their next meeting better prepared to answer their outstanding questions.
I attended to speak to the commission about the Driver Responsibility program 0during the public communications period to ensure that somebody had told the PSC face to face that they're required to implement an indigency program for the DRP sooner than later. I reminded them that the Driver Responsibility surcharge is tacked on in adddition to existing criminal penalties and was created explicitly as a revenue generation scheme - essentially a "tax by another name" - and that excessive civil fees can be as harmful to civic health as high taxes.
Staff discussions of the surcharge revealed some data I'd not seen before about the program. Since its inception DPS, has billed out $1,270,538,003 in surcharges but MSB has only been able to collect $468,774,222. There are four categories of offenses for which DPS collects the surcharge: "Points" accumulated on the driver license because of tickets, DWI convictions, no-insurance citations, and driving with a suspended license. Most fees are for lesser offenses, as demonstrated by this breakdown of the portion of fees assessed attributable to each category (compiled by the DPS Driver License division):
Points: 3%The collections percentages also varied widely. Those whose surcharge is for "points" (the lowest surcharge fees) paid off their surcharge at a rate of 69%, compared to just 37% for DWI and 38% for those with no-insurance tickets.
DWI: 12%
No insurance: 57%
No driver license: 28%
Predictably, surcharges for offenders driving with a suspended license had the lowest collections rate (27%). That's because the penalty for not paying other types of surcharges includes suspension of your driver license, so many people in that category already owe surcharge fees they can't pay, which is why they were driving without a license in the first place. It's precisely that slippery slope that's most troubling to me about this fee because it creates a situation where surcharges snowball, harming public safety instead of improving it by making it more likely people will drive without a license or insurance.
The other piece of news coming out of these discussions (and I'll be providing readers' much more detail on this aspect of the story next week): I informed the Commission that they'd soon be receiving a formal petition for new rulemaking regarding the Driver Responsibility surcharge proposed on behalf of this blog.
This is something my wife Kathy Mitchell and I have been preparing as a little home-grown activist project. Under state law, agencies are required to give a petition for rulemaking a public hearing if it's accompanied by 25 signatures. The rules we plan to suggest would implement the Indigency, Amnesty and Incentive programs that were authorized by the Lege in 2007 but never actually established by the PSC.
More on this next week when we publicly release the formal petition for rulemaking and begin to solicit support and endorsements for the proposal.
Is budget crisis at Bexar probation real or an excuse to fire Bill Fitzgerald's enemies?
A couple of things strike me about this story. First, the decision by Bexar judges shows they're still utterly out of touch with what's going on at the probation department, worrying more about budgets for their own individual court staff more than providing supervision for convicted defendants they've allowed to stay in the community. That's a bad public safety decision. The judges serve as the board of the county probation department, but in Bexar the current crop of jurists has seldom behaved like people that understand they have a fiduciary responsibility toward the department, instead worrying only about their own feifdoms in each individual courtroom.Aimee Sharp, finance director of community supervision and corrections, said the department has seen a 28 percent drop in court fees since Bexar County courts-at-law judges restructured in May the way court fees are allocated.
The court fees that probationers pay now go first to the courts before any of the money is distributed to community supervision. If probationers don't pay the full amount of the court fees, community supervision may not get any of the allotment, according to Sharp.
She also said because judges are not inclined to require probationers to pay off probation fees at the completion of their program, community supervision is not receiving its share.
“We were really caught by surprise when this happened,” she said.
The probation department has been dipping into its fund balance — used for emergencies — to compensate for the loss of fees. In May, it had a fund balance of about $655,000, about 5 percent of its total budget.
The department receives half of its funding from the Texas Department of Criminal Justice, and court fees fund the remainder of the $13 million budget.
The state recently informed the Bexar County probation department that its state funding would decrease by 3.15 percent — or $170,762, which is the equivalent of four probation officers.
If the restructured fee collection continues, the department could expect a $700,000 decrease in its share of fees for an entire fiscal year, which runs from October to September.
The decrease was the unintended consequence of the judges' efforts to raise revenues and avoid layoffs in their courts, Fitzgerald said.
Also, I want to learn more about the assertion (which I'm not sure I believe) that "The state recently informed the Bexar County probation department that its state funding would decrease by 3.15 percent." All the data I'd seen from the recent legislative session said probation funding was increased overall statewide. According to the Texas Criminal Justice Coalition's budget analysis, during the 81st legislative session this spring:
- Approximately $11.1 million was allocated for projected community supervision population growth.
- $13.1 million was allocated for a 3.5% pay increase in FY 2010 and an additional 3.5% salary increase in FY 2011 for community supervision officers and direct care staff. A similar increase (about 3.5% in each year of the biennium) was also provided to correctional and parole officers. ...
- The "Community Supervision Officers and Direct Care Staff Salary Increases Rider" appropriates $13.1 million over FY 2010-2011 and specifies that “It is the intent of the legislature that community supervision officers and direct care staff receive a 3.5% salary increase in fiscal year 2010 and an additional 3.5% salary increase in fiscal year 2011.”
A healthy dose of skepticism is required because of Bill Fitzgerald's well-earned reputation as a union-busting, retaliatory manager who's not above terminating or harassing employees who're whistleblowers or union sympathizers. Is there really a budget crisis at the Bexar probation department or is this just an excuse for Fitzgerald to get rid of more internal enemies? That's the unspoken question looming over this announcement, and it deserves an honest answer before any layoffs begin.
Thursday, July 16, 2009
Jamming cell phones in prison debated at US Senate committee
Though Texas instituted a "zero tolerance" policy on cell phones last year after a death row inmate called Sen. Whitmire's office (leaving an open question what level of "tolerance" they operated under before), the senator told the committee that strategy cannot succeed, according to AP: "'Short of jamming and a complete shutting down of those phone signals, I don't think we can remedy the problem,' Whitmire told the Senate Committee on Commerce, Science and Transportation. 'It is a public safety problem.'"
Information Week provided good coverage from the hearing ("Senate mulls jamming cell phone signals in prison," July 15):
The proposed legislation seeks to have Congress revise a 1934 law that blocks the jamming of phone signals. The bill, which would permit jamming cell phone signals in prisons, has been sponsored by Senator Barbara Mikulski of Maryland, who noted that a prison inmate in Maryland used an illegally obtained cell phone to order the killing of a witness.
"Just more than two years ago, Carl Lackl, a young father of two in Maryland, was killed after an inmate used his cell phone to order a hit," Senator Mikulski said in a statement. "This is not an isolated incident and it must stop. All across the country, cell phones are being smuggled into prisons and being used by inmates to communicate with criminals on the outside."
The other side of the issue was presented in a letter to Commerce Committee members by several public interest organizations. According to Public Knowledge the letter maintained that there are ways better than jamming to deal with the illegal cell phones-in-prison problem.
"Jamming prison cell phones would jeopardize public safety because there is no way to jam only phones used by prisoners," said Public Knowledge's legal director Harold Feld in a statement. "All wireless communications could be shut down within a prison
"As spectrum experts have explained, jamming contraband cell phone signals without jamming authorized communications presents an extremely difficult engineering challenge. Cell phone signals use many bands, often proximate to or shared with public safety operations."
To alleviate the problem, Public Knowledge suggested that lowering the cost of legal calls in prisons -- currently costing as high as $300 for an inmate with family -- would help as would a stepped up effort to detect and stop the flow of unauthorized cell phones in prisons.
The flow of illegal mobile phone is eye-popping. California, for instance, confiscated more than 2,000 cellphones in 2008. Phones are sneaked into prisons by visitors and corrupt guards, or simply thrown over prison walls. In Brazil, where the problem has reached epidemic proportions, cell phones are delivered to prisoners by homing pigeons.
The part about the homing pigeons cracked me up. Prison smuggling often produces some surprisingly creative and resourceful schemes, when you pay attention to the details, but that one takes the cake! Guard corruption is still the principle culprit, though; TDCJ caught dozens of guards smuggling cell phones onto prison units after they instituted a lockdown last year.
Wireless companies also opposed the legislation, according to coverage in a Florida paper:
The cell phone lobby is fighting the prison officials. John Walls of CTIA - The Wireless Association (formerly known as the Cellular Telephone Industries Association) told the Chronicle that jamming technology "is imprecise. The problem with jamming technology is that's it's imprecise."
He added: "We're certainly not at odds on the intent. There's not one legitimate customer that we have behind bars, and shutting that off is as much of a concern to the industry as anybody else. … Where we think that perhaps we could do a better job ... is by looking at all the solutions available today and selecting the ones that protect legitimate use while still solving the problem, and that would be cell detection and managed access."
For more detail from critics of the idea, I've uploaded onto Google documents a copy of the letter to Sen. Hutchison from Public Knowledge and other interest groups critical of the jamming proposal.
MORE: Here's a little more detail about the bill from BroadbandConsensu.com that I hadn't seen published elsewhere: "While S. 251 does not call for an outright legalization of jamming technology, it allows for prisons to apply for a waiver from the ban and provides for Federal Communications Commission testing and certification of jamming technology."
See related Grits coverage:
- Hutchison seeks cell phone jamming authorization
- Texas prison cell phone scandal making national news
- Senate committee examines reasons for contraband smuggling
- FCC has no authority to approve cell phone jammers
- Chasing illegal cell phone use in TDCJ
- Cell phone trafficking in Texas prisons
- Guards and contraband smuggling in prisons and jails
- Texas prison guards smuggle cell phones to inmates
- Even death row not immune to contraband smuggling
- Has TDCJ learned the right lessons from death-row cell-phone scandal?
- Few prison guards fired, prosecuted for contraband smuggling
- New rules for TDCJ phone service approved
Wednesday, July 15, 2009
DPS wrong to delay indigency program for 'driver responsibility' surcharge
But according to a staffer working for state Rep. Sylvester Turner, whose amendment to the Sunset bill established the language in question, a separate section of the bill requires the agency to implement some sort if Indigency program by September 1 of this year, with more detailed specific requirements becoming mandatory in two years.
I'm certain this Grits post only contributed to the confusion, but after conversations with Mange and Turner's staff, I think I've cleared things up:
Rep. Turner amended the Sunset bill in two places, adding what became Sections 6 and 15 of the bill. Section 15 gives detailed specifications for an Indigency program, but that section of the bill specifically states it would not go into effect until Sept. 1, 2011. However, Section 6 of the bill takes effect September 1, 2009: That portion of the legislation changes a "may" to a "shall," requiring the agency implement some sort of indigency program this year. (See the full bill here - large pdf.)
As background, DPS originally was authorized in 2007 to create an Indgency program (along with "amnesty" and "incentive" programs) by SB 1723 authored by Sen. Steve Ogden in the 80th Texas Legislature. That bill said the agency "may" create such programs, but they never did so. As a result, this year Section 6 of the Sunset bill changed that to a "shall," effective September 1.
Turner's staffer said the delay in requiring Section 15 to be implemented was to give "flexibility" to the agency, but some version of an Indigency program must be in place when the Sunset bill takes effect. Thanks to SB 1723, the Public Safety Commission has full authority to implement the Section 15 requirements ASAP - they can delay, in other words, but nothing requires them to do so.
The Public Safety Commission has already put off creating an indigency program for too long, and for that matter they'd do well to create "amnesty" and "incentive" programs to help ameliorate the gaping flaws in Texas' surcharge scheme. This program is not working properly and the PSC should use its authority to fix the problem instead of putting off changes until they're absolutely forced to make them.
In any event, the law requires them to implement an Indigency program of some sort sooner than later.
UPDATE: In the comment section, Shannon Edmonds of the Texas District and County Attorneys Association helpfully informs us that, "While I don't claim it to be authoritative, I'll volunteer that our 2009 Legislative Update book (available for order by calling 512.474.2436 or attending one of our legislative update seminars) interprets HB 2730 the same way that you and Rep. Turner's office do."
RELATED:
- Department of "Public Safety" or "Collections"?
- Indigency program mandated for 'driver responsibility' fees?
- Senate would let judges reduce misnamed 'driver responsibility' fee
- On the limits of the justice system as tax collector
- 70% of 'Driver Responsibility' fees go unpaid
- Bad TX law fills road with unlicensed drivers, jails with non-crooks
- More than 10% of Texans currently wanted by police
- Driver Responsibility fee had unintended consequences, say prosecutors
New report on prison nurseries
The Women’s Prison Association (WPA) has released the first-ever national report on prison nursery programs. The report examines the expansion of prison nursery programs across the U.S. These programs allow incarcerated women to keep their newborns with them in prison for a finite period of time. The report also looks at community-based residential parenting programs, which allow women to serve criminal justice sentences with their infants in a non-prison setting.Texas was not listed as one of the states with prison nurseries (which were California, Illinois, Indiana, Ohio, Nebraska, New York, South Dakota, Washington, and West Virginia). Does anybody know what happens here with incarcerated mothers and young babies? It's a question I've never thought to ask. Texas passed legislation this year limiting authority to shackle pregnant inmates during labor, but I don't know what happens with the babies after they're born.
The report finds that the number of prison-based nursery programs is growing, but that such programs are still relatively rare. Though every state has seen a dramatic rise in its women’s prison population over the past three decades, only nine states have prison nursery programs in operation or under development. Of the nine prison nursery programs existing or in development, four were created within the last five years. ...
The report (pdf), Mothers, Infants and Imprisonment: A National Look at Prison Nurseries and Community–Based Alternatives, is available online at www.wpaonline.org.
MORE: A quick search of TDCJ's website on the topic revealed this story from the Galveston Daily News about the birthing center for pregnant mothers at TDCJ's Carole Young medical unit in Texas City:
Though this tells me about where pregnant inmates give birth and visitation policies for infants and young mothers, it doesn't provide a clear picture of what exactly happens to young infants after they're born in Texas prisons. Perhaps readers have more information on the subject.The minimum-security unit has helped female offenders with medical needs since 1996. It serves both state jail and Texas Department of Criminal Justice offenders. The University of Texas Medical Branch at Galveston provides the medical care. ...
Between 80 and 100 of the patients at any time are pregnant; inmates assigned to the facility because of its obstetrical clinic typically make up the largest patient group.
After delivery, new mothers on the unit who have permission from the warden participate in the Love Me Tender baby-bonding program, in which they can see their babies not only during scheduled weekend visitation hours, but also for any two-hour period weekdays from 8 a.m. to 5 p.m.
The babies are not housed at the unit, but state Rep. Rick Noriega of Houston has filed a bill, HB 1770, which, if passed [ed note: it failed], would provide housing for infants up to 1-year-old.
After one year, Simpson noted, another Texas Department of Criminal Justice program allows extended visitation with children up to 16 years old, so inmates “roll from one program right into another.”
Melendez-Diaz not as scary as the Washington Post thinks
"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."From my perspective, though, such concerns seem quite overblown. Given that Texas law adequately complies with the new SCOTUS ruling and we lock up more people per capita than the rest of the country, I just don't buy the argument that the criminal justice system can't function under these restrictions. We also have the problem identified of rural areas needing to use crime labs hudreds of miles away, but Texas hasn't had any trouble filling up our prisons under such strictures.
Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.
States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.
In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.
The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.
Scott Burns, executive director of the National District Attorneys Association, was a prosecutor in Utah for 16 years. "Sometimes it's the game within the game," he said. With less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system," Burns said.
In Prince George's County, lab analysts testify regularly, but the volume of cases is so great that "we still are not able to process all the drug cases," State's Attorney Glenn F. Ivey said. "There's a triage going on in court cases. Some marijuana cases don't get tested, and we end up throwing them out."
Then there are the big rural states, where crime labs are hours away from many county courthouses. "It'll have a huge impact," said Ladd Erickson, state's attorney in McLean County, N.D. "It's not volume as much as it is distance. For some counties, round trip is going to be 10 to 12 hours to testify" for the lab analyst to travel to court.
Burns said 42 states and the District are affected by the Supreme Court case, Melendez-Diaz v. Massachusetts.
Texas law (CCP 38.41), which Antonin Scalia approved of specifically in the majority opinion, already requires "notice and demand" regarding testimony by lab workers, where prosecutors must give notice that they intend to use lab evidence and the defense has an opportunity to demand cross-examination if they give ten days' notice. Poof! Problem solved!
So what's the big deal? While there may be some cases dismissed in transition as states change their laws to accomodate the court's opinion, Texas' example shows that it's possible to comply with confrontation requirements in a high-volume, big-state system.
I also don't find it compelling that the criminal justice system may be forced to prioritize cases in order to shepherd scarce resources, which is a fundamental dilemma confronting everyone who must live within a budget. If because of Melendez-Diaz, "Some marijuana cases don't get tested, and we end up throwing them out," would anyone out there really shed a tear?
A much more intriguing set of arguments about Meldendez-Diaz and its effect on federal immigration law can be found on the Fifth Circuit Blog authored by Brad Brogan, who argues persuasively that "the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases."
According to Brogan's reading, Melendez-Diaz eviscerated the Fifth Circuit's ruling in Rueda-Rivera, declaring after poring over the details that "There is simply no room left to argue that CNRs are not testimonial after Melendez-Diaz. The CNR's are ex parte affidavits prepared solely for use at trial, and "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." That's an implication of the case I hadn't heard mentioned previously, but Brogan's right that Scalia's opinion speaks directly to the matter:
Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer in the regular course of his official duties—and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation [under common law].It'll be interesting to watch these confrontation issues play out in that unlikely venue.
The other major implication for Texas I'd already mentioned here: Melendez-Diaz likely overturns the Texas Court of Criminal Appeals' position that "parole revocation certificates" are "business records," since they are documents specifically prepared for use in court. In this instance, too, I don't see requiring confrontation as a major concern, though next session the Lege may need to enact "notice and demand" provisions similar to those in place for crime lab workers to allow confrontation in parole revocation hearings.
See related Grits posts:
- Will Melendez-Diaz compel confrontation for parole revocation certificates?
- Real splits on criminal justice not liberal-conservative
- SCOTUS: Forensic reports require cross-examination of analysts
- Pragmatism vs. Confrontation frames SCOTUS' lab report debate
- Scotus to hear debate on whether lab reports are objective or testimonial
- Pending SCOTUS case could moot proposal to admit DWI breath tests without cross examination
- Are crime lab reports 'testimonial' documents? SCOTUS will decide
Tuesday, July 14, 2009
TCJC issues legislative wrapup
- Protect Youth and Communities by Improving Juvenile Justice
- Rebuild Confidence in the Criminal Justice System & Ensure Innocent Individuals Are Not Sent to Prison
- Save Money by Providing Alternatives to Incarceration & Increase Public Safety Through Policy Reform
- Strengthen Criminal Justice Practices
- Encourage Economic and Workforce Development by Reducing Re-Entry Barriers
- Appropriations
- Special Mention: Honoring Individuals Who Pursued Smart-On-Crime Policies
Jefferson recalls liberation of Bastille prisoners
Today France celebrates the 220th anniversary of the storming of the Bastille, perhaps the only national holiday I'm aware of in any country celebrating a prison break. (Really, the mob was after gunpowder stored in the garrison and releasing the prisoners was an afterthought, but that's the popular portrayal.) As Thomas Jefferson described the spectacle in a letter to John Jay:The mob, now openly joined by the French guards, force the prisons of St. Larare, release all the prisoners, and take a great store of corn, which they carry to the corn market. Here they get some arms, & the French guards begin to to form & train them. ...As Jefferson himself wrote after recounting the episode, Vive la revolucion! For more background see novelist Catherine Delors' blog post from last year's Bastille Day titled, "The 14th of July 1789: What really happened on Bastille Day?"
“[At the Bastille] They took all the arms, discharged the prisoners & such of the garrison as were not killed in the first moment of fury, carried the Governor & Lieutenant governor to the Greve (the place of public execution) cut off their heads, & sent them through the city in triumph to the Palais royal.”
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