Do small police agencies need redundant SWAT capacity? Budget crisis changing the debate

With the TV show Dallas SWAT, the Dallas PD's SWAT team gained national fame, but less attention has been paid to the fact that, according to Ed Timms at the Dallas News ("Dallas County constables, others keep little-used tactical units," Dec. 20):

Over the years, several law enforcement agencies in Dallas County have formed tactical teams, including municipal police departments, the Dallas County Sheriff's Department, the Dallas Independent School District's police force and local constables.

Typically the officers have duties in addition to serving on such teams.

One would expect the Dallas PD and even the Sheriff to have SWAT capacity. But in the past decade, many smaller agencies have gotten into the game - sort of an urban version of what Radley Balko calls "militarizing Mayberry." Timms runs through some of the lesser-known examples:

DISD's special response team of 14 officers was formed more than two years ago and outfitted with more than $40,000 in weapons and equipment. To date, it has not been used operationally.

Among Dallas County constables, Roma Skinner was the trendsetter. When his special response team was formed in 2001, it became the only such unit operated by a Dallas County constable. The Precinct 4 Web page says the unit has eight members, but training records indicate about a dozen are involved.

Three other constables have since formed tactical units of some kind: Precinct 2 Constable Michael Gothard, Precinct 3 Constable Ben Adamcik and Precinct 5 Constable Jaime Cortes.

The News requested documents detailing how often the Precinct 4 constable's Special Response Team has been used operationally since its inception. Skinner's office provided reports on 21 occasions in which the team was deployed from Aug. 7, 2001, through July 31, 2008. The team made arrests or confiscated weapons and drugs in several of the operations. In at least a third of the cases, no arrests were made.

The team frequently served drug-related warrants or raided homes where drug sales were suspected.

In a 2006 incident, the team raided a Dallas apartment looking for two men wanted on felony warrants and two other men suspected of armed robberies. Team members knocked open the front door with a ram as "flash-bangs" – pyrotechnic devices designed to distract suspects with a loud noise and a flash of light – were set off "into the front living room" and at a rear second-floor window.

No one was home. The team did find an AK-47 assault rifle in a closet. Before they left, "the weapon was returned to the closet and a copy of the search warrant was left on the living room table," according to the after-action report.

The Precinct 4 team also helped out U.S. Immigration and Customs Enforcement in 2007 after the wife of a man whom two ICE agents were seeking to arrest for deportation refused to let them into the house, in the Tarrant County portion of Grand Prairie.

After the team arrived, "We set up by the front door of the residence and knocked," according to an after-action report. The wife answered the door and "immediately we entered the residence." The man sought by ICE agents was not home, but the wife was arrested on misdemeanor warrants.

Other constables' tactical teams also appear to be deployed sparingly. Precinct 2's special response team, for example, executed four search warrants in 2008 and two in the first months of 2009.

There's no regulation of small agencies' SWAT teams, notes Timms: "The only mandatory standards for tactical teams typically are what law enforcement agencies impose on themselves." SWAT teams in small jurisdictions which are rarely used are a vanity-driven waste of staff and resources, particularly where larger agencies have redundant capacity.

For urban constables, this is just one more example of mission creep, seeking to take on jobs traditionally associated with municipal police in a self-serving effort to justify their otherwise anachronistic existence.

Reevaluating the SWAT craze among small agencies may be another area where dark budget clouds may have a silver lining for criminal justice reform, causing officials to raise questions based on fiscal concerns that never made their radar screens before as a public policy matter:

Across the nation, however, the wisdom of relatively small law enforcement agencies fielding tactical teams increasingly is being questioned. Some experts suggest that smaller departments don't have a sufficient pool from which to select ideal candidates, and may not have sufficient funds for training and equipment. Routine duties such as patrol and investigations may suffer in small departments where serving on a tactical team is a part-time duty.

Experts also warn that small teams, with perhaps six or 12 members, simply don't have the numbers to carry out high-risk operations such as hostage rescues or even barricaded-person incidents. Lacking sufficient numbers, they say, both the officers and citizens may be exposed to excessive risk.

Some critics also say that once such a team is formed, the temptation may be to use it – for practice or to justify its existence – when such an overpowering use of force isn't needed.

At a time when many government agencies are facing budget shortfalls, some officials question just how many tactical teams are necessary. Does every municipality and county law enforcement agency, regardless of size, need one? Or is there a better way?

Excellent questions. I recall a conversation some years ago when I was Police Accountability Project Director for the ACLU of Texas with an urban SWAT commander whose main pitch was his officers' professionalism (paraphrased): "We do this all the time," he said, "it's our job. We train and practice constantly and we're good at it. It's not like we pull a bunch of guys off traffic duty and stick assault rifles in their hands." But for smaller agencies like constables and the school district police, that's exactly what's going on. Such units are more expensive to equip and maintain than any other in the department, so if they're not getting used that's a big waste of resources that would be better spent elsewhere.

To the extent budget crises cause local officials to reevaluate redundant, superfluous SWAT spending, that's a welcome blessing. It should have happened before now, but better late than never.

Austin chief can't bypass officer for promotion who visited brothel on vacation

Police accountability in this state is seriously hindered by the state civil service code, which governs police discipline, promotions and other departmental employment practices for the 70 or so cities which have opted in (including all of the big ones except Dallas and El Paso). Nearly all jurisdictions governed by the civil service code opted in many decades ago - most of them in the '40s and '50s - but in the late '80s the state's large police unions achieved working control over that section of the law at the Legislature and added numerous problematic provisions like closing most disciplinary records (which are public records at non-civil service cities).

To make matters worse, in recent years the police unions (they're officially "associations," I know, but let's call a spade a spade) have been pushing for "meet and confer" authority - which is essentially a version of collective bargaining - and forcing cities to "buy" their way out of bad civil service laws at the bargaining table with higher wages. That's the dynamic that's led to the Austin city budget bleeding red after then-Mayor Kirk Watson backed massive raises for police in exchange for "concessions" like the right to bypass an officer for promotion based on their disciplinary history or other valid reasons.

An example of that may be found in a story out of Austin about Chief Art Acevedo whose efforts to select commanders based on merit instead of tenure earned him a rebuke in arbitration. Now he must promote a commander he doesn't need or want.

At issue was the promotion of Wayne Demoss, who Chief Acevedo wanted to bypass after the department received an allegation that Demoss hired a prostitute while on a trip to Panama. When confronted with the allegation, Demoss admitted visiting the brothel in question but said he did not pay for sex - sort of like Bill Clinton who smoked pot but didn't inhale.

Investigators couldn't definitively prove otherwise so the arbitrator says Acevedo has no choice but to make Demoss one of Austin's 19 commanders, the top non-appointed slot in the department. He'll probably have to demote the guy who was promoted in his stead.

Part of me thinks it's not that big a deal if the fellow visited a legal brothel in another country: As a matter of full disclosure, when I was 18 or 19 I visited Mexican brothels in border towns on a couple of trips, though unlike Demoss I admittedly "inhaled." Of course, I was a repressed Baptist kid from East Texas acting out, not a middle-aged man and a police lieutenant.

OTOH, I don't think Chief Acevedo was overreaching not to want to promote a fellow who likes to visit brothels on his vacation - whether he paid for sex, these are casual leisure associations the department has an understandable reason for discouraging. Even if it's not enough to fire or demote him over, IMO that's enough for the chief (who's kind of a tight-assed, straight-arrow type) not to want him in a top commander's slot.

The arbitrator disagreed, though. They seemingly always disagree. After all, both the union and the department must agree on an arbitrator, and the union won't agree to folks who uphold too many firings or promotion bypasses. The whole thing about having a "property right" to your job over and above your boss' ability to control you is really a labor model from a past era. Out in the real world, folks with longer tenure see younger people with greater skills or ambition promoted past them all the time, and just hanging around longer than anybody else and passing a written test isn't enough to get you promoted to a top management slot. But that's how most larger Texas police departments are run.

As Austin has found out, there's not enough money in the taxpayers' coffers to buy your way out of all the bad provisions in state civil service law that prevent police chiefs from effectively disciplining their officers or managing their department. The chief can't fire who he wants, he can't promote who he wants, but he's held accountable for what the department accomplishes even as he's stripped of all control - pretty damn tough job, if you ask me. The union has more sway with city council at the end of the day than Acevedo does, as has been the case with all of his predecessors since I've lived in Austin.

'Strategies for Hiring the Hidden Worforce'

The headline of this post is the title of an education workshop for employers sponsored yesterday by the local chamber of commerce in Waco, as reported in today's Tribune-Herald:

Dennis Brooks said he’s always looking to hire diesel mechanics, and he would gladly hire a disabled person or an ex-convict if he or she can get the job done.

That’s why he attended an education workshop Thursday titled “Strategies for Employing the Hidden Workforce,” presented at the Greater Waco Chamber of Commerce’s headquarters.

“Diesel technicians are hard to find, and I’ve spent a lot of time on the Texas Workforce Commission Web site,” said Brooks, with Volvo & Mack Trucks of Waco, who lost an ex-convict to an employer in the Dallas area. ...

Project RIO, short for Re-Integration of Offenders, is another service available locally at McLennan County Workforce Solutions, 1416 S. New Road. Felons in their first 12 months of parole from a state jail, prison or Texas Youth Commission facility can take workshops on interviewing and preparing resumes. They also get job leads, labor market information, referrals to community agencies and referrals for training.

Those hiring ex-felons can receive tax credits. Vincent Sassi of the Texas Workforce Commission said tax credit certifications were issued for 520 former felons in the Waco area between July 1, 2008, and Nov. 30, 2009.

A lot of the strategies one sees for addressing this problem are local and moving the local power interests can be difficult, so I'm especially pleased to see the local business community taking leadership on this topic.

Related Grits posts:

• Judge seeking employment options for felony probaitoners
• Proposal to 'ban the box' passed by Travis commissioners
• Travis County moving toward "banning the box" to boost ex-felons' employment
• Travis County hosts in-jail job fair
• 'Ex-cons having tough time finding jobs'
• Making sure ex-offenders can find employment
• Crime increases as result of employment denial to ex-felons
  

Can Dallas really trust declining crime statistics?

Falling crime statistics in Dallas are great, editorialized the Morning News ("Crime statistics must be accurate," Dec. 16), but only if the public may have confidence that police aren't cooking the books:

Specifically, there's reason to suspect that reporting procedures adopted by the department in 2007 undercount violent crime. And the questions raised are serious enough to warrant an independent external audit or a formal FBI review of Dallas' crime-reporting procedures.

In a one-week sample of cases from this summer, The News' review estimated that the number of aggravated assault cases than Dallas police recorded for the FBI should be at least 50 percent higher. Instead, many attacks were classified as lesser offenses because the 2007 policy change generally required that assaults involving bottles, bricks, pipes and other dangerous objects not be classified as aggravated unless serious injury occurred.

Aggravated assaults make up more than one-third of the city's reported violent crime, so as the numbers drop in that category, the overall violent crime rate is affected.

And aggravated assaults aren't the only crime category for which the reporting process has been questioned. Morning News reporters Steve Thompson and Tanya Eiserer previously reported discrepancies in the city's counting of auto, home and business burglaries.

These are not scientific studies, but they raise legitimate questions about whether the city is making as much progress on fighting crime as the statistics indicate.

Columnist James Ragland says Dallas is looking at crime data through rose colored glasses. See also commentary from the DA Association's user forum regarding manipulation of crime stats.

Evidence-based practices described to judges at state sentencing conference

I wasn't able to take notes during Ed Latessa's lively lecture to the recent state sentencing conference for judges, DAs and probation officials sponsored by TDCJ's probation division, so I'm pleased to see they put his presentation online regarding the current state of evidence-based supervision practices:

• What Works and What Doesn’t in Reducing Recidivism: Applying the Principles of Effective Supervision, by Dr. Edward Latessa

If you're looking for a quickie update on the current state of evidence-based best practices in probation, this is an excellent starting point. He emphasizes a point that I've seen myself is a frequent source of confusion and bad outcomes in Texas: The importance of front-end assessment - then actually relying on that assessment to make decisions - in identifying what interventions are and aren't needed. Some interventions on low-risk offenders statistically increase recidivism, he said, because it causes them to associate with higher risk people which outweighs any good from the program. You get the most bang for the buck, he said, targeting treatment and intensive supervision on the highest-risk offenders, with programming narrowly targeted to focus on identified "criminogenic" (crime causing) risks.

CJAD also posted a data-filled presentation from Adam Gelb at the Pew Center on the States comparing Texas' criminal justice system with the rest of the country:

• Less Crime, Lower Cost by Adam Gelb

Lots of good data in this presentation covering ground that Grits frequently traverses, so those interested in how Texas stacks up nationally should give it a read. Pew gives Texas credit for charting a new course (p. 20 of the pdf), but we also clearly went much further than most other states down the road to Tuff-on-Crimelandia before we began to turn that corner.

At one in 22 adults in prison, jail, on probation or on parole, Pews says Texas ranks fourth nationally in the proportion of its population under correctional control, behind Georgia, Idaho and the District of Columbia. (One in 13 adult Georgians, believe it or not, are in prison, jail, on probation or on parole.)

The most remarkable new fact-bite for me out of Gelb's presentation were Pew's numbers on the percentage of state workers employed in corrections (page 15 of the pdf). The national average is 11%. The average in southern states is 12.1%. But in Texas, 16.9% of state employees are in corrections, and that's with TDCJ more than 1,000 guards short of full staffing! Corrections makes up 8.6% of Texas' state general funds, says Pew, compared with 6.8% on average in other states.

Both these presentations contain a lot of interesting tidbits and are well worth the few minutes it takes to read through each of them - even without the presenters' commentary, they're mostly self-explanatory.

See related Grits posts:

• Jennifer Skeem on Sentencing and Mental Health
• US Sentencing Commission hears testimony on alternatives to incarceration, reentry

Radnofsky responds defending open records stance

After Charles Kiker forwarded her this morning's Grits post and my addendum in the comments that discussed her open records stance, I received the following response from Democratic Attorney General candidate Barbara Ann Radnofsky, printed here in its entirety with my initial reaction below:

From Barbara Ann Radnofsky:

Scholarship and leading from the top, emphasizing fairness and due process, do indeed make a difference. The Office of AG is so politicized that opinions and open records determinations are no longer made on the merits. For example, I have spoken out that the AG was mistaken in his opinion allowing secrecy on school use of force policies, for many reasons. These include:

1. Deterrence.
2. Safety and efficacy: recordkeeping and evaluation of effectiveness of policies
3. Minors are involved. Courts and parents have needs and rights to know.
4. Open records spur public debate re appropriateness of force against minors.

Emphasizing scholarship and respecting career officials, and requiring decision making to be fair is the opposite of saying "presume in favor of non-disclosure.” “Fairness” remains the intent of my website post (www.BarbaraAnn2010.com). Fairness means no presumption of non-disclosure under Texas law, which emphasizes the people’s right to know.

How can we promote fairness?

Recently, the Texas AG conceded that it should have tracked how often it issues similar rulings on withholding data, and should educate requesting entities as to the basics of the law, and make sure governing entities are reminded of rulings they’ve already received. This is an obvious first step in preventing abuse and delay in publication. Here's the quote from the Corpus Christi Caller Times, quoting the AG's spokesman on the issue:

Strickland said the attorney general doesn’t track how often the office issues similar rulings.

“There are certainly rulings for information that’s not only similar but nearly identical,” he said. “To the extent that there is a pattern, we don’t really keep numbers or statistics.”

He said he thought it would be helpful to keep track of that and make sure governing entities are reminded of rulings they’ve already received. “Let’s make sure they are aware,” he said. “That’s part of the process and our responsibility, making sure to also educate the governmental body.”

“There are certainly rulings for information that’s not only similar but nearly identical,” he said. “To the extent that there is a pattern, we don’t really keep numbers or statistics.”

If we also stopped the poaching of key matters (particularly in post conviction appeals) from the hands of career people, if we required written policies and procedures and training, and if the career lawyers were allowed to apply the laws fairly, then the office of AG would be serving the people of Texas.

Now is this the single most important issue we face in this State? You will see I have many issues on the website and in my speeches. We face as great a danger from secrecy in meetings as we do from secrecy in records. Bill Hobby has just written a significant op-ed piece worthy of quotation here:

"Governing bodies must conduct the people's business in public or else face some serious penalties. This statute has protected the public and elected representatives alike for the past 42 years with a basic premise: Public bodies should deliberate in public."

The Open Meetings Act passed in 1967, and strengthened in 1973 should be adhered to. The recent claims and litigation that the First Amendment somehow allows officials to secretly meet and discuss the public issues, all in private, in violation of clear Texas law, and conversely not be required to follow the law and procedures (and suffer the penalties of violating the Open Meetings Act) turns the First Amendment on its head. We can adapt to modern communications and technology without a reversion to shutting out the public and thwarting the will of the People of Texas, clearly expressed through the legislature.

********************************************

Grits' reaction:

These are reasonable, moderate stances, but they do not convince me that the Democratic candidate will be a strong advocate for open government, mostly because they seem to betray a relative unfamiliarity with the Public Information Act or the AG's function enforcing it.

Keeping data would be good. Even better would be to pledge to liberally construe information requests in favor of requestors in all circumstances, regardless of her personal political position on the subject.

For example, the reasons given for believing "the AG was mistaken in his opinion allowing secrecy on school use of force policies" were telling, even though I agree with Radnofsky the information should be public. Notice her four reasons are all policy arguments regarding why releasing the information would be in the best interests of the public. While I agree with all of them, that's the WRONG reason for the AG to insist those records be released. The real reason they should be disclosed is that the government has no authority to conceal them. As I wrote earlier on the subject:

Agencies seeking to close [school use of force policies] rely on Sec. 552.108 of the government code, which states in relevant part that agencies may keep from disclosure any information which might "interfere with the detection, investigation, or prosecution of crime."

Use of force policies don't fit any of those three categories. They involve how police interact with suspects during arrest. By the time of an arrest, a crime has already been "detected." Similarly, the arrest process does not implicate the "investigation" of crime: When use of force is part of the investigatory process, that amounts to torture which is clearly illegal. And only prosecutors can prosecute, so policies about how police conduct arrests simply have nothing to do with the prosecution of any alleged underlying crime.

In other words, if the documents are not specifically exempted, the AG is required to liberally construe the law in favor of giving records to the requestor. Period. It doesn't matter what the policy arguments are pro or con. That subject shouldn't even come up!

Whereas Radnofsky says there should be "no presumption of non-disclosure" if she were AG, the law actually says there should always be a presumption in favor of disclosure. Mere neutrality would not actually fulfill the AG's duties under the statute.

This is important because what if the AG's policy positions were different? What if Ted Cruz replaces Abott instead of Radnofsky and he believes (I'm speculating) that:

1. Releasing use of force policies harms deterrence.
2. Safety and efficacy are reduced by transparency
3. Minors are involved so records should be kept private.
4. Open records encourage wrongful villification of police officers and negatively impact public discourse.

I know people who believe (or at least who have argued) each of those things, so such a worldview is not out of the question. But even if that's what you believe, a Texas AG who follows the law and "liberally construes" it in favor of requestors would give out the use-of-force policies anyway. It shouldn't matter what are their personal political views. Even if I agree with someone on this or that specific issue, it's dangerous for that to be the guiding influence behind an AG's approach on open records.

It's easy to favor open records for people who agree with you; I want to know a candidate will also champion open records for their enemies, and their friend's enemies, and even for people with whom they may violently disagree. That will only happen if the AG puts aside their personal political views and focuses on fulfilling their duties under the law to promote the interests of requestors.

I do not, btw, think this is the "most important issue we face in this state." However, it is the most important issue for me in the AG's race. It's a myth to call the Attorney General Texas' top law enforcement officer. Outside of representing state agencies in lawsuits, the AG's role in enforcing the open records law is arguably their single most important duty. And as bad as things have apparently gotten under Abbott's watch, I hope it becomes a central issue in next year's campaign.

Prosecutors' performance hard to measure: Excellent reporting out of Waco shows gaps in DA data

The McLennan County District Attorney is facing his first serious electoral challenge in a generation next year, and the Waco Tribune-Herald offered up excellent coverage this week that are must-reads for anyone concerned with how prosecutors operate or what issues voters should care about in elections:

• "Data offer clues on McLennan County district attorney's performance"

• "Voters often underinformed in DA contests"

(UPDATE: Links now dead: See excerpts at the Stand Down Project.) I may need to change up my Google News alert keywords because if it weren't for Doug Berman pointing them out at Sentencing Law & Policy, I wouldn't have seen these stories. Both are must-reads; the first one in particular, even for readers with no stakes in McLennan County justice.

The stories were inspired because a local officers' union endorsed incumbent John Segrest's opponent, claiming the sitting DA refused to file too many cases brought to him by local police. Cindy Culp at the Trib analyzed data from the McLennan DA's office and counties with comparable populations and discovered that most DAs do not wind up pursuing around half the cases brought to them by police, both in Waco and other jurisdictions that produced viable data. Here are some topline numbers:

By these data, the McLennan DA actually does a terrific job at clearing out cases that don't need to be prosecuted early in the process. They're prosecuting cases brought to them at about the same rate as other counties overall, but in Waco prosecutors are much more likely to refuse the case up front instead of filing a bad case and dismissing it months down the line after the county has paid for jail costs, indigent defense, etc.. I'd made this same point the other day regarding jail overcrowding in Nueces County:

A big key to processing cases more rapidly is for prosecutors to assess cases brought by officers as early in the process as possible, not after a defendant has been sitting in jail for hours, days or (worst case) even weeks. After all, why jail people who you're not going to charge? Harris and El Paso's DA's have implemented "direct filing" systems that get prosecutors involved much earlier in the process. In Harris County, police must get every arrests pre-approved by prosecutors who are on call 24 hours a day, 365 days per year to evaluate cases. (See Murray Newman's description of Harris' system here and here.) Getting prosecutors involved earlier is one of the smartest approaches I've heard to adding a little giddyup to the system. It solves or prevents a lot of other problems.

Culp's data add even more oomph to that critique - if up to half of cases brought to prosecutors are refused or dismissed, then delays in getting to that result take up a lot of extra time and resources in the system, creating problems for the jail, the courts and the county coffers.

There may be other reasons to critique Mr. Segrest's performance, but by these data he's doing a remarkably efficient job compared with his peers on identifying which cases need to be prosecuted.

Culp's report also points out the frustrating lack of data avaialable for evaluating prosecutors' performance, and for my money state legislators would be well-served to require formal reporting on some of the outcome measures where she sought information but couldn't consistently find it across jurisdictions. That opacity is a big reason why, as one source she quoted pointed out, incumbent American prosecutors are about as likely to lose reelection fights as were officials in Communist Russia.

Bully for Culp for putting this series together: One of the best pieces of reporting I've seen on a complex, nuanced subject.

AG Greg Abbott presiding over dark hour for Texas open records

Over the years I've sometimes praised Attorney General Greg Abbot for being reasonably good on his open records decisions, but data published by the Corpus Christi Caller Times suggests Abbot's watch has not been an especially happy period for open records overall ("Increase in requests to withhold public data worries advocates," Dec. 12). The fault seems to lie more at the level of state and local agencies, but clearly the AG hasn't been adequately policing the trend or focusing enough resources to solve the problem.

Bottom line: More state agencies and local governments are appealing what should be routine requests to the AG's office as a delay tactic, seemingly without consequence or penalty. "Requests that the Texas attorney general withhold information requested by the public increased 88 percent in five years, according to a Caller-Times analysis of state records."

However, "Between 2003 and 2008, when the requests to the attorney general spiked, the staffing levels of the office issuing the opinions stayed relatively flat, said Jerry Strickland, a spokesman for Attorney General Greg Abbott." There's no one to blame for that understaffing but the chief administrator.

What's more, these delays are apparently causing the public to use open records requests less. At state agencies, "Between 2003 and 2009, referrals to the attorney general increased 40.5 percent, according to the state reports. During the same period, the total number of requests those agencies received dropped by 84.5 percent, the reports say."

Those are staggering figures, indicating that Greg Abbott may be presiding over the darkest hour for government transparency since the Texas Open Records and Open Meetings Acts were created in the wake of the 1971 Sharpstown bank scandal.

Twenty years ago you could honestly say Texas had among the strongest open records acts in the nation (us and Florida would have argued for top billing) and citizens here had aggressively comprehensive access to the vast majority of government records. Since then, though, the trend has all been in the direction of opacity: A series of bad court decisions, dozens of new, mostly unjustified legislative exemptions and weak enforcement by Attorneys General from both parties left us, at best, somewhere near the middle of the pack among states as opposed to a national leader on transparency.

Where are the state leaders willing to champion openness? Over the past several sessions, for the most part "good" pols on open records were the ones fighting closure bills. There simply was/is no concerted effort to roll back recent record closures; the trend appears to be a one-way ratchet.

Democrat Barbara Radnofsky who is running against Greg Abbott has an open records page on her campaign website, but it is framed not as a proactive agenda but as a political attack, aiming to "depoliticize" open records, which is an obvious reference to favorable records closing decisions made by Abbott on behalf of Governor Rick Perry.

I disagreed with those decisions by Abbott, too, but Radnofsky's stance for "depoliticization" is not really enough to fill me with optimism. It doesn't tell me, for example, any specific records closing decisions by Greg Abbott she disagrees with. It doesn't say she'd beef up staffing to process appeals faster, or what she'll do to punish agencies that abuse the appellate process. I also wish she, or some state leader, would articulate what records closed by the AG, the Legislature and the courts in the last two decades should be re-exposed to sunlight, even if it would require changing current law or court precedent. (Every AG comes into each session with their own legislative agenda.)

For me, open records is the deciding issue regarding who I support for Attorney General, over and above party labels or any other factor. I voted for Greg Abbott over Democrat Kirk Watson when they squared off a few years back because Watson's Austin mayoral stint made me distrust him on open records stewardship (state senator is a much better fit for him, IMO) and Abbott's public positions represented a huge improvement over John Cornyn or Dan Morales before him. Similarly, in this election, I'm open to Radnofsky (presumably) making the case that she'd be a more vocal and active advocate for government transparency as AG. But I'm not convinced yet.

Eyewitnesses miss big changes in their environment, like the person in front of them

An alert reader points to this remarkable video of an experiment regarding "change blindness" to judge how observant (or not) average people are in casual settings, via Boing Boing:



If 75% of people in the experiment don't notice they're all of a sudden speaking with a different person, how likely do you think most eyewitnesses would be to identify the correct person later in a police lineup or photo array?

More and more, studies like this have convinced me that eyewitness testimony should always require corroboration unless it can be established that the witness knew the defendant before the offense.

See related Grits posts:

• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
  

Travis County planning to launch veterans court

Having written over the weekend about the rise of Texas veterans courts, I was pleased to see Travis County announce they'd also create one in addition to their existing mental health court ("Travis County looking to set up court for veterans," Dec. 16):

Travis County officials say not enough is being done locally to identify veterans in need of mental health treatment.

"Obtaining a criminal conviction or serving jail time ... will not resolve the problems underlying the offense," said Travis County Constable Maria Canchola. "Intervention for our veterans is essential."

The possible creation of a local veterans court was hailed by veterans groups as a vital step. "Treatment is far more effective and far less expensive," said Paul Sullivan, head of the Austin-based group Veterans for Common Sense.

Travis County Attorney David Escamilla said a team of prosecutors, defense lawyers and judges will need to work out several details before a veterans court becomes reality, including determining which offenses would be eligible and what services would be offered. Officials will also need to identify funding for the court.

"But there's a great deal of momentum to move forward with this," Escamilla said, adding that the court would probably begin handling misdemeanor cases but could take on felony cases.

According to the Statesman:

Last month, Harris County set up a veterans court pilot project, and Tarrant County last week decided to accept a $200,000 grant from Gov. Rick Perry's office to hire staffers to manage a veterans court there. The Texas Legislature passed a law this year allowing counties to create veterans courts.

This new veterans court model - which garnered little focus, at least by me, when it passed this spring during the 81st legislative session - already appears quite popular, with three of Texas' largest five counties already choosing to launch an innovation that existed nowhere in the world this time two years ago.

I welcome the use of alternative sentencing and stronger probation methods through these type of specialty courts, though I recognize that, if they became popularized, veterans courts may pose equal-protection questions, as several Grits commenters pointed out. Since Travis County also has a mental health court for civilians, though (and since veterans courts are basically mental-health courts that cover post-traumatic stress), maybe this won't be too big a concern.

In the big picture, though, veterans courts are a terrific experiment: They apply evidence-based strong probation tactics from drug courts and other specialty-court settings theoretically to any type of offense. So they give an opportunity to test whether techniques that most judges agree are working pretty well on specialized caseloads for addiction-related offenses could be applied more broadly to all types of crimes. For that reason, I view such courts as pilot programs presaging how we may sentence and supervise non-veteran offenders in the future if it all works out. Perhaps that's too optimistic, but veterans courts definitely take the gloves off the old drug-court model by allowing it to apply to any offense, and the approach is clearly going to be tested in the near term, at least in these jurisdictions and probably more before all is said and done.

MORE: Murray Newman has a post up on Houston's new veterans court.

Forensic Science commissioner resigns to avoid revealing public info

Somehow I'd missed that one of Governor Perry's recent appointees to the Texas Forensic Science Commission - Bexar County Medical Examiner Randall Frost - had resigned in October just weeks after his appointment because he wouldn't reveal immediate family members' names or assets required on state ethics disclosures.

There's got to be more to this than was reported. Frost wrote in his resignation letter to Perry, "I am unwilling to disclose the names of my family members or the addresses of our residence, my spouse's business and our other properties, knowing that the information would then become public record." But that's a really strange claim. His home address and other property ownership is already a public record in real property records held by the county. If his wife owns a business, it is registered either with an assumed name certificate at the county or as a corporation with the Secretary of State. All the information he's afraid to disclose is public record already if anyone wanted to look. Of course, nobody had a reason to before now.

One also imagines part of the backstory may be that, when initially approached for the job, Dr. Frost didn't sign on for the kind of political fiasco initiated by new chairman John Bradley when he took over and immediately shut down all the agency's activities and ordered commissioners to delete all their email. Before then, the Forensic Science Commission was a sleepy little entity barely noticed by the press. All of a sudden, Frost found himself in one of the most high-profile appointments in state government, with reporters not just from Texas but both coasts focused intently on the commission's activities. The game had changed, and under the new rules he wanted out. That's how it looks, anyway.

In his place, Perry has appointed Tarrant County Medical Examiner Dr. Nizam Peerwani.

Rumor of the Day: Shanda Perkins for TYC Ombudsman?

This is probably idle speculation and I ignored it as highly unlikely when I first heard the rumor (which is all it is right now), but no fewer than three normally knowledgeable sources on juvie justice topics have suggested to me in the last week that the Governor's office is considering Shanda Perkins - the anti-sex toy activist who was rejected 27-4 by the Texas state Senate for a slot on the adult parole board - to replace the indicted ex-judge who was recently forced out of the Texas Youth Commission Ombudsman's slot.

I jokingly suggested this possibility back in May, but if these rumors are accurate there's somebody in the Governor's office who doesn't think it's a joke.

In some ways, I guess, it makes a certain sort of twisted sense. After Sen. John Whitmire shot down Perkins' nomination for the parole board on the Senate floor this spring, which was one of the Governor's more embarrassing moments of the 81st Texas Legislature, I suppose it wouldn't surprise me that much if Rick Perry returned the favor by depositing Ms. Perkins back squarely in the center of the Senate Dean's political wheelhouse. It'd certainly make for some interesting committee hearings.

If such a bizarre thing were to come to pass, here's my thinking on how it might play out. Basically, one of three things could happen: 1) Perkins might turn out to be better than her critics give her credit for and a conscientious religious person may be just what the position needs. 2) She could abuse the slot to proselytize to the kids in ways that would draw down litigation and send her packing just like her predecessor. Or, 3) perhaps most likely, as somebody with no relevant personal or professional background or clear sense of how to do the job, she could find herself in over her head and become a cipher, doing little good but probably little harm as well. At least she probably wouldn't smuggle weapons or drugs onto the units, which would be a plus.

The policy wonk in me says "Please, Governor, find somebody else." But another darker, less constructive part of me can't resist the urge to say, purely for the entertainment value, "Go for it, Governor! That'd be a hoot!" If nothing else it would probably boost my blog traffic. ;)

• Can't take a hint: Shanda Perkins back for Round Two
• Perkins nomination scuttled
• Parole board vacancy: Insert dildo joke here
• More disapprobation for Shanda Perkins nomination
• Senate should reject sex toy activist for parole board
  
• Nomination of anti-sex toy activist to parole board draws more criticism
• Governor appoints anti-sex toy crusader to parole board

Duncanville's million dollar camera: Tribune expose' details red-light ticket revenue

I mostly quit tracking minutiae regarding red-light cameras after I left the ACLU of Texas and nobody was paying me to follow what had become a hydra-headed, locally-driven mass expansion of surveillance cameras and electronically generated tickets. Since then, the number of red-light cameras throughout the state has exploded, as has the revenue local governments derive from them.

The Texas Tribune has put together a terriffic interactive database on Texas red light cameras that constitutes what IMO is their best piece of web journalism since launching the online, nonprofit news site. I've been waiting for the Tribune's journalism to go beyond academic descriptions of the process and force itself inexorably into the public debate, which this project definitely does. (Congrats to Matt Stiles and others involved.) I'd expect local newspapers and TV stations around the state to pick up the Tribune's information and localize stories for their own audiences - as well they should. And when pols, state and local, get around to debating red-light cameras, the Tribune data will for sure be a central part of the debate. Elise Hu points out this TV news piece out of Dallas that shows how easily the story can be localized:


Go here to see their interactive package and look up red light camera sites and data from your home area.

The top revenue-generating red light camera in Texas is in Duncanville, where one camera generated tickets totaling more than $1,000,000. Statewide, thirty individual red-light cameras generated more than $500,000 in revenue each during the year analyzed by the Tribune, and there appears to be little connection between the number of citations given and the number of crashes at a particular intersection.

In Austin, the two intersections with the highest revenue totals happen to be the ones closest to my house: At the intersections of I-35 and 11th Street and I-35 and 15th. At both of these, particularly at 15th Street, the red-light cameras are IMO likely taking advantage of traffic engineering flaws that notoriously strand drivers in mid-intersection when the traffic-light changes (there's an awkward, quick merge there from IH-35 where drivers must criss-cross to get where they need to be before the light). FWIW, those intersections are also essentially gateways into central East Austin with it's disproprotionately minority population, which means that's mostly who the city is mulcting these fines from.

Which brings me to my main, personal beef with red-light cameras: Better safety outcomes may be achieved with no fines or surveillance cameras simply by lengthening yellow-light times and other traffic engineering solutions. The Lege should require longer minimum yellow-light times at intersections where red-light cameras go up. If they did, I bet you wouldn't have any million-dollar traffic cams like the one up in Duncanville. Seeing these data reinforce my belief that the main motive for installing red-light cameras is revenue-generation, not public safety.

US Department of Agriculture needs to stay out of jail building business

I make an effort on this blog to track as comprehensively as possible all the various sources of expansion in incarceration capacity in Texas, from halfway houses and treatment centers to county jails, state prisons, federal lockups, immigration detention centers and privately run facilities. But the Texas Tribune's Julian Aguilar points to a source of incarceration funds being sought in South Texas that I'd never considered before: The US Department of Agriculture.

Usually voters must approve debt for new jails, but a South Texas political family wants the federal Ag Department to loan money for jail building without voter approval, reports the Tribune ("USDA Approved: Jail Construction," Dec. 14):

Some Texas sheriffs are looking to an unlikely source to get them out of the hole as private prisons win away federal contracts for inmates and put the financial squeeze on county jails.

Federal prisoners translate to dollars to local detention facilities — mainly county jails — which are reimbursed at a rate that can exceed $50 a day for each federal inmate they house. But competition from private prisons in Texas continues to shrink that potential pool of inmates for smaller, poorer counties, leading some local governments to ask help from an agency better known for its fever tick riders than building jails.

The Department of Agriculture is currently considering whether and how it will grant or loan Webb County about $5 million, said Sheriff Martin Cuellar, which will be used to build a new county-owned jail.

“We build another jail elsewhere and house the regular state prisoners [there],” said Cuellar. “We could also have the current jail filled with federal prisoners and that could be something very profitable to the county.”

County governments and the U.S. Marshals Service negotiate federal-prisoner contracts, some of which used to be a steady secondary source of revenue for Webb.

Somebody needs to step in and provide some adult supervision here: The US Department of Agriculture has absolutely no business loaning money to add onto county jail capacity. Pork is pork, but that's an absurd misuse of Ag funds; certainly there's little economic stimulus going on there, and it ignores the voters' usual role in approving county debt.

I've railed repeatedly against the short-sighted tactic of counties banking on revenue from federal immigration detainees to generate profit from incarceration. In Cameron County a similar arrangement has forced officials to ship local, pretrial detainees to other counties, while in Gregg County for a while they actually stopped making misdemeanor arrests after Hurricane Rita because their jail was full of contract detainees. It turns out the Webb County scheme makes no more sense just because a Congressman's brother might be able to swing federal Ag pork to finance it:

Local officials nonetheless hailed the facility as a job creator, and a source of revenue through utility contracts with Webb County. But Cuellar says the county is losing $500,000 annually because inmates are going to GEO instead of the county lockup.

Cuellar said it's helpful knowing people at the federal level, in this case, his older brother, U.S. Rep. Henry Cuellar, D-Laredo, who the sheriff said has helped guide the department in the right direction.

“Through what they call the Rural Communities Facilities Program there is a way that you can use funding to build community centers, you can build city halls or you can even build jails,” said Rep. Cuellar, a member of the House Agriculture Committee.

So naturally, given those options, Congressman Cuellar and his Sheriff-brother want to expand on a bad idea and add more beds to the revenue-losing jail instead of build a new city hall or a community center. What gives with that? Does anyone believe that would be the top priority for funding if the Congressman's brother weren't the Sheriff? This one doesn't pass the smell test.

Thanks to the Tribune and Aguilar, btw, for alerting me to the possibility of federal Ag loans for rural county jails. Knowing that, perhaps going forward it'll be necessary to monitor the EPA, Medicare, transportation grants, and other seemingly unrelated federal programs to make sure jail builders aren't making an end run around local voters to incur indebtedness and expand jail capacity.

Elections, Judicial Conduct Commission, provide too little accountability for judges

In the Dallas News, Diane Jennings has an article on the state Commission on Judicial Conduct ("State Commission on Judicial Conduct has the job of judging Texas judges," Dec. 14) which normally receives little attention but was cast into the state spotlight this year when it initiated a fact-finding hearing to decide whether Court of Criminal Appeals Presiding Judge Sharon Keller should be removed. Jennings provides an overview of the agency's more mundane, everyday work, providing these macro-level data:

In fiscal year 2009, 1,204 cases were filed. Most are dismissed, but 70 disciplinary actions were issued, with judges receiving punishments ranging from private sanctions to public reprimands. ...

According to the commission's annual report, most of those disciplined by the commission are low-level jurists: 41 percent were justices of the peace in fiscal year 2009.

That doesn't necessarily mean the commission is reluctant to sanction higher-level judges, said Cynthia Gray, director of the Center for Judicial Ethics of the American Judicature Society. "There are more lower-level judges in every state, so statistically you would expect there to be more complaints about them and more action taken," she said.

The story also points to the perils of electing judges, since in general voters pay no attention to down-ballot judicial races and it's often terribly hard to oust an incumbent from office, even when they have a rotten record:

Because Texas is among a handful of states that elects judges, the ultimate overseers are voters, Willing said. And that can be frustrating, she said. Some judges, such as Dallas Justice of the Peace Thomas Jones, for instance, have been sanctioned several times by the commission but keep getting returned to the bench.

"There are different judges in the state who I think would be elected even if they were standing accused of murder," Willing said. "They're just so popular with the voters."

Having worked on more than 20 judicial campaigns during a past life as an opposition researcher, I can confirm there's some truth to that. The old joke is that to defeat an incumbent judge, you have to catch him with "a dead girl or a live boy." But I personally believe there's a seldom discussed reason for the difficulty of unseating incumbent judges, and it has to do with the quality of campaign research.

Very few campaign workers understand the judiciary and its workings well enough to articulate a profound critique of a sitting judge, much less to perform a thorough vetting on a challenger. Instead, for criminal court judges, there's really only one, tired, lazy tactic used by most campaigns: Find some offender to whom they granted probation or other leniency who then committed a later offense and accuse them of being soft on crime. (For civil court judges, the lazy, typical critiques usually fall along the greedy lawyer/tort reform axis.) Most campaign people know so little about the law and the courts that they're incapable of engaging in political dialogue beyond those simplistic canards.

That ignorance among campaign staff leads to dumbed-down, ineffective messages and strategies. The soft-on-crime message may be the most common attack on criminal court judges, but that hardly means it's a tried-and-true one: Most incumbent judges win re-election handily, and when they don't it's usually because of a partisan flip like the ones witnessed recently in Dallas and Harris County; very rarely does a challenger's campaign muster a credible, unique attack message and the resources to deliver it. In judicial elections - especially smaller ones - the cookie-cutter approach predominates.

That said, I don't know if the difficulties ousting incumbents mean appointed judges would be any better. For example, Gov. George W. Bush appointed Judge Verla Sue Holland out of Collin County to the Texas Court of Criminal Appeals, but we recently learned she'd engaged in a long-time affair with her home-town District Attorney - which she concealed for years, even from her CCA colleagues - that tainted innumerable cases, including a capital murder trial. As President, Bush also appointed the egregious Priscilla Owen to the Fifth Circuit Court of Appeals. The defrocked Samuel Kent out of Galveston was appointed, for that matter. If these folks are examples of the merits of appointing jurists, I remain unconvinced.

For my part, I'd like the Commission on Judicial Conduct to make all reprimands public as well as their "letters of caution" which are currently secret - if they find a judge has done wrong or requires official cautioning, I see no reason for keeping that from the public under any circumstance. Voters need and deserve to have that information.

For good or ill, most judges' impression of the Commission on Judicial Conduct will likely be defined at least for the next few years by how they handle the Sharon Keller "We close at 5" debacle, which is their highest-profile case in a long while. If they find she did wrong but she gets a slap on the wrist, other judges won't fear the Commission's wrath the way they would if she receives a more serious reprimand.

RELATED: See the agency's latest annual report (pdf).

UPDATE: Lise Olsen at the Houston Chronicle today published a lengthy story titled "Judging the Judges." on the topic of secrecy in misconduct investigations involving federal judges. It's a nice complement to Jennings' Dallas News piece on misconduct investigations of state judges.

Mixed messages on graffiti in Nueces County: Will 8 year sentence solve anything?

I'm sure the judge who gave this sentence did so believing it would "send a message," but the message it sends to me is that the judge has no sense of proportion:

A south Texas district judge has sentenced an 18-year-old man to eight years in prison for habitually vandalizing property with graffiti.

Sebastian Perez had pleaded guilty in a Corpus Christi state district court to three graffiti charges, as well as to marijuana possession.

Perez told the judge that spray-painting graffiti had become became a habit, but he stopped when he realized it was getting him nowhere. He cried and asked for probation, saying he would finish high school, get a job and help clean up the mess. The judge, unmoved, assessed the maximum sentence.

Police say Perez spray-painted more than two dozen properties from March to August. The Corpus Christi Caller-Times reports that police blamed him for more than $7,300 in damage, leaving his mark on everything from fences and homes to a medical clinic and traffic signs.

The judge stacked sentences for three separate graffiti offenses and a marijuana charge to get the eight years. There's no mention of prior criminal history in the Caller-Times coverage, although prosecutors say he violated pretrial supervision.

So let's add up the cost-benefit analysis for a moment. Eighteen-year old commits $7,300 worth of damage. That's one cost. Then there's the cost of incarceration. State jail felonies must be served day for day so he'll do eight full years. At current cost per prisoner of around $25,000 per annum, that's $200,000 spent to punish him (plus whatever the costs were to arrest, prosecute, etc.). Meanwhile, because he's incarcerated he cannot a) pay restitution to victims, b) earn a living or c) pay taxes. Over eight years, conservatively, perhaps that's another $150-$200K in lost wages and tens of thousands in sales and property taxes that won't be paid. Then there's the lifetime's worth of lower earning potential.

In all, the punishment for a $7,300 crime will directly cost taxpayers perhaps a quarter-million (2009) dollars over the next eight years, with even greater economic consequences overall - all so the judge can look "tuff" for a day in the newspaper.

Meanwhile, there are the indirect costs: Whenever some violent offender is paroled and commits more crimes once they're out, the "tuff on crime" crowd trots out the example to insist we must build more prisons to house society's most dangerous people. In reality, though, it's pressure from long incarceration stints for petty, nonviolent offenders like Mr. Perez that fill up prisons needlessly - as former House Corrections Chairman Ray Allen was fond of saying - with people who we're only "mad at" instsead of those we're "afraid of." Otherwise, there'd be plenty of space.

The police department's graffiti coordinator crowed that the sentence would "send a strong message to other would-be vandals." But that's an expensive form of advertising - especially since most teen graff writers don't read the newspaper or monitor local judges' sentencing practices. Eight years from now, no graff writer in Corpus will remember Mr. Perez or his sentence, but taxpayers will still be footing the bill for his incarceration. Can it really be true that there's no community supervision regimen in Nueces County capable of restraining Mr. Perez and providing restitution to property owners? Why should taxpayers foot the bill for his room and board? And even if prison is appropriate, was stacking sentences really necessary for public safety?

For several years now Nueces County has been handing out among the longest sentences in the state for graffiti (that I'm aware of, anyway), but every time I speak to anyone from Corpus Christi about the issue they say it's getting worse and worse. So I have little reason to believe this "message" will deter the problem any more than have past felony graffiti sentences.

This isn't really about sending a message to graff writers but to voters. It's the kind of judicial pandering to public opinion that makes folks like Sandra Day O'Connor say judges shouldn't be elected.

Ironically, at the same time the public is being asked to believe this sentence will "send a strong message" and thus somehow - perhaps through osmosis - solve the graffiti problem, Corpus Christi's police department actually removed two investigators from its graffiti task force to shift them back to patrol duties. What message does that send? A similar one to the judge's sentence, actually: That they care more about appearances and public relations than reducing graffiti.

RELATED: See coverage of two Austin-based graff writers being charged in Travis County with Class A misdemeanors.

See related Grits posts:

• Toward a restorative graffiti policy
• Graffiti solutions: A cost-benefit analysis
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Invited graffiti: Solution or enabling for unwanted tags?
• Grading graffiti? What do youth want?
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Allowing invited graff best way to reduce unwanted graffiti
• Gittin' tuff on graffiti spawns more of it in Corpus Christi
• Out of our minds: Isn't felony graffiti overkill for sixth graders?
• Charging graffiti as a state jail felony?
• Reduce graffiti by pursuing the crime, not the criminal
• Kids do less art in school, more in streets; Lege reacts with hammer

Texas veterans courts an aggressive version of problem-solving jurisprudence

During the 81st Texas Legislature a little-noticed amendment to SB 1940 may have launched the most comprehensive, aggressive brand of "problem solving court" I've yet seen in the Lone Star State: "Veterans courts."

The bipartisan amendment authorizing them, which was essentially similar to SB 112 by Rodney Ellis, was proposed by Reps Frank Corte and Allen Vaught on third reading, accepted by bill sponsor Solomon Ortiz, then approved by the House 146-0.

If authorized by a county commissioners court, Texas veterans courts can be used for any misdemeanor or felony offense - with no limitation - when the veteran defendant has a brain injury, mental illness or mental disorder, including post-traumatic stress, that "resulted from" military service in a combat zone.

By contrast, a veterans court in Colorado Springs, CO - which was the first I've heard of this new breed of specialty court - opened earlier this year with only a misdemeanor caseload. According to the LA Times, veterans courts began in Buffalo, NY in 2008 and more are opening around the country.

In veterans court, Texas' statute mandates that the DA and criminal defense attorney participate in a "nonadversarial" fashion to create an "individualized treatment plan" for the offender. The prosecutor must agree to the approach and the defendant may also choose not to participate. If the veteran successfully completes the program, charges may be dismissed "in the best interest of justice."

Tarrant County plans to open a veterans court using federal grant money distributed through the Governor's office. I don't know how many other counties will establish veterans courts, how many defendants prosecutors might admit into such programs, for what offenses they might be used or even whether the idea will work. The bill says programs must notify the Governor's Criminal Justice Division before commencing, so I'll check with them in the coming week. But my gut tells me this will be a successful approach, though perhaps not for the reasons the amendment-authors conceived.

Recently I wrote about research on the relationship between mental health, criminality and community supervision by Dr. Jennifer Skeem. She concluded that specialty mental health caseloads succeeded not because mental health problems promoted crime per se, but rather because courts and probation officers in those settings were more likely to use evidence-based practices when dealing with the offender instead of more punitive, authoritarian approaches.

That analysis strikes me as likely applying to veterans courts as well, since at the end of the day they're basically specialized mental health courts. They are likely to succeed, based on Skeem's analysis, if only because they're mandated under this statute to use a best-practices approach aimed at helping the defendant succeed instead of only punishing them when they fail.

I also like that veterans courts would be open to any type of offense, not just drug and alcohol-related crimes. Drug court judges like John Creuzot in Dallas for years have said that a greater array of offenses should be included in problem-solving courts like his DIVERT court in Dallas; Texas' veterans courts, though, tear down that artificial barrier entirely. There is no offense, even murder, that's not in theory eligible for veterans court diversion (though I doubt any prosecutor would ever agree to it in that type of case).

The House Criminal Jurisprudence Committee was told to monitor the rollout of veterans courts as one of its "interim charges" assigned by the Speaker of the House, so there will be more opportunities next year to learn where and how these courts are being used.

RELATED: From Sentencing Law & Policy, "Judge suggests more sentencing options for war veterans."

Exonerees, lawyers fees and innocence compensation: A personal perspective on an ugly dispute

I'm going to speak out of school a bit to offer a personal perspective on a dispute covered today in the Dallas News involving my former employers. I've not spoken to anyone involved about the lawsuit described below. I claim no direct line to the truth on this and only offer my own impressions.

However, I've got mixed feelings about today's media coverage over a fee dispute between one of Texas' DNA exonerees, his attorney, and the legal director of the Innocence Project of Texas. This spring I worked worked for/with both lawyers being sued - Kevin Glasheen and Jeff Blackburn - and my history with Blackburn goes back to working with him on the Tulia cases around the turn of the century. What's more, I know all of the exonerees and attorneys who are quoted in the story. If you know nothing besides what you read in Jennifer Emily's Dallas News story ("Innocence Project counsel criticized for profiting on exonerees"), it sounds pretty bad. Here's her lede:

Jeff Blackburn has helped spring dozens of Texans from prison after they spent time behind bars for crimes they did not commit.

But even as he's carried on the public fight to free the wrongly convicted as chief counsel for Innocence Project of Texas, he's been privately profiting off of some of the exonerated by claiming a portion of the state restitution paid to them.

Accepting fees from exonerees for services not directly connected to the nonprofit Texas Innocence Project is not illegal. But at least one public watchdog group says it appears improper, and a state legislator says he may file a bill to prohibit such profiteering.

At root, this critique is based on a sentiment, most directly expressed by Rep. Rafael Anchia, that "They should be helping the exonerees on a pro bono basis." But what other clients do attorneys represent without compensation? In this case, thanks to their lawyers, clients got aggressive representation across multiple fronts that resulted in changes to state law and opened the door for multi-million dollar settlements of their federal civil rights claims. That's no small thing. Texas could, as a state, change the way we compensate lawyers in civil court, but that's a much larger question.

The whiff of scandal promoted in the story is rooted in a fallacy the writer fails to rebut: The idea that exonerees could have just filed "a one-page document the guy could fill out himself." The fact is that Texas already had a compensation statute when Steven Phillips got out of prison, but at a much lower compensation rate. All of the fellows who hired Glasheen (some of whom, but not Phillips, for which Blackburn receives a referral fee) could have filed that same one-page document already and received compensation at a lower rate. They each had a choice under the law: Sue or accept compensation. Some did accept the compensation and didn't pay lawyers anything. Bully for them. That was their decision, but they'll receive less money overall than Mr. Philips. The only ones on the hook for attorneys fees are the ones who made a conscious choice that the previous compensation package was not enough.

Under the law for exonerees who reject the state compensation package, their other option for compensation was and is to hire a lawyer and sue. These are straight-up, contingency style Sec. 1983 federal civil rights suits which are very expensive to litigate and perhaps even more difficult to win - plaintiffs must not just prove harm but a "pattern and practice" of abuse. Those lawsuits were settled this spring in light of Texas' new compensation bill and a portion of the bill's success may be attributed directly to leverage from Glasheen's litigation - particularly among Dallas-area reps like Anchia whose local governments could otherwise be on the hook for big civil judgments. If the bill had failed, the litigation would have gone forward, including Mr. Phillips', of that I have little doubt.

Bottom line: these exonerees are in a unique position because of a) choices they made and b) the point in history they made them. Nobody going forward will find themselves similarly situated because the law has changed.

The compensation they'll receive under the new bill, even after paying their lawyers, will be much more than exonerees would have gotten otherwise. What's more, the new bill establishes an annuity that will pay them for the rest of their lives. Nobody's hurting for money here.

It should also be said I'm 100% sure the compensation bill would not have passed this year without Kevin Glasheen and Jeff Blackburn. While Blackburn's efforts were more high-profile, Glasheen, a Republican attorney out of Lubbock, brought connections and resources to the table that I'm absolutely certain pushed the bill over the top, especially during a session when money was tight and most other innocence legislation died. He was in Austin every week lobbying with terrific success, but his incentive to do so was the fee agreement. Should he, would he, would anyone expect him to do so just out of the goodness of his heart? He didn't take these cases pro bono; this is how the man earns his living.

Ditto for Blackburn, who faced similar criticism after the Tulia cases were settled. But how can he handle expensive, longshot innocence cases if he must earn his living hustling for DWI clients in Amarillo? I've watched Blackburn put tens of thousands in legal expenses on his own credit cards in possible-innocence cases, sometimes without getting it back. If we're going to blame Jeff when makes money, he should also get credit for putting in a lot more of his own money and pro bono time to help innocent clients post-conviction than most attorneys I know.

Another thing not mentioned in the story: Glasheen gave significant monetary advances to exonerees to help them pay bills while the litigation and legislation was pending - in some cases fairly significant amounts. Nobody had any complaints when they approached him seeking cash, one notices, and if the bill and litigation both failed, he'd be out that money. I'm just sayin'.

So while I understand why Phillips and perhaps others chafe at the notion, personally I don't begrudge the attorneys involved being paid. Professional-level services are not free, and otherwise the work wouldn't get done.

At the end of the day, Blackburn, Glasheen, and these exonerees together along with Anchia, Rodney Ellis, Robert Duncan and others at the Lege achieved something amazing with the passage of this bill. Exonerees in the past were compensated much less, and in a couple of instances wound up destitute and homeless a few short years after getting the money. Even after attorneys fees, these guys will get more than they otherwise would have, including a lifetime annuity. The fight for better statutory compensation - fought by the exonerees through their own efforts and their attorneys - both earned more for them and paved the way for improved justice for others in the future. Henceforth, it's true: Nobody need hire an attorney and exonerees can just file that one-page document. But that's a fight recently won, not a fait accompli that would have happened without these attorneys' effort.

Political and legal fights over public policy are messy beasts and seldom free from self-interest. This one was successful, so it's a shame to see victors feuding over the spoils. I'm sad that it's happening and wish everyone involved the best.

Tactics to reduce Nueces County jail crowding not so different from elsewhere

The Corpus Christi Caller Times this week editorialized ("Jail population reduction should be a priority," Dec. 8) that Nueces County officials should focus more closely on reducing the jail population to avoid new jail construction:

Over the past 17 years, only 36 beds have been added to the county jail, while its inmate population has expanded by 14 percent since 2000. A larger jail is needed, [Sheriff] Kaelin says. He may be correct. But even if the county could come up with the money to build one, we’re not so sure a new jail would solve the problem. Here’s why:

In 2006, after failing federal inspections the jail lost the federal prisoners that had brought in hefty revenues for the county. Amazingly, it took only six months for the jail to return to 90 percent of capacity. That’s an indication of a systemic problem.

Why is the jail perpetually so crowded? Kaelin blames new laws and expanding police forces, but other counties deal with the same state laws and somehow have much lower jail inmate populations. Is Corpus Christi’s police force that much more effective? Or as County Judge Loyd Neal commented, is it just that “we’ve got a lot of bad people”? ...

High inmate populations are costly, both in the risks of violence and in the cost of housing inmates elsewhere. We urge Nueces County officials and the state of Texas to make reduction of jail populations a priority, both to save on jail costs and to help inmates turn their lives around.

The commentary which follows may perhaps seem repetitive, but if so it's only because counties across the state face the same problems with jail overcrowding, usually stemming from the same causes and with the same, basic array of possible solutions available to them. The question is whether various local officials use the tools available to them.

Let me save Nueces taxpayers $20,000 in consulting fees and lay out what needs to be done to reduce jail overcrowding. The key players are the arresting agencies, the criminal court judges (felony and misdemeanor), the probation department (controlled by the judges), the District Attorney, and the county commissioners court (which holds all the purse strings). What can be done? The problem won't be solved by any one actor but only if multiple players chip in and do their part. Here are the main, topline possibilities:

Arresting agencies: Corpus Christi PD and the Nueces County Sheriff should reduce jail intake for petty offenders by authorizing officers to exercise discretion granted them by the 79th Texas Legislature to give citations instead of arresting for certain low-level, nonviolent misdemeanors.

Judges: Criminal court judges can help by reducing pretrial detention through lowered bail or personal bonds, processing cases more quickly, and utilizing progressive sanctions for probationers, especially misdemeanants, instead of revoking them automatically to jail. Judges also must identify evidence-based programs that would be useful for folks in their court and communicate to the commissioners court what programming needs to be funded, whether for mental health services, juvenile programming, day-reporting alternatives, etc.. Then they must utilize those tools once they exist.

Probation department: Controlled by the judges who act as its board, Nueces' probation department is one of just three out of Texas' ten largest counties to see probation revocations increase after receiving funding to engage in diversion efforts. (In Bexar County, a recent analysis found that higher revocation rates are contributing to jail overcrowding, and it won't surprise me if that's also the case for Nueces.) The Caller Times editorial said Texas should "develop its own programs" on jail diversion, but it actually already has: The problem is the Nueces probation department hasn't been fully taking advantage of the tools and resources available to them. Probation officers should be trained in evidence-based practices and supervisors should be held accountable for using them.

District Attorney: A big key to processing cases more rapidly is for prosecutors to assess cases brought by officers as early in the process as possible, not after a defendant has been sitting in jail for hours, days or (worst case) even weeks. After all, why jail people who you're not going to charge? Harris and El Paso's DA's have implemented "direct filing" systems that get prosecutors involved much earlier in the process. In Harris County, police must get every arrests pre-approved by prosecutors who are on call 24 hours a day, 365 days per year to evaluate cases. (See Murray Newman's description of Harris' system here and here.) Getting prosecutors involved earlier is one of the smartest approaches I've heard to adding a little giddyup to the system. It solves or prevents a lot of other problems.

Commissioners Court: Should fund programs with an eye toward jail diversion and minimizing the jail population. When judges ask for funding for a DWI court, day reporting center or some other diversion-focused tactic, commissioners must keep in mind that such costs will save money in the big picture by taking pressure off the jail, which is the 800-pound gorilla in the county corrections budget. Discourage further schemes to profiteer off jail-bed space and focus on the county's core, carceral needs. And just say no to new jail construction until the day comes that everybody above is doing their part and it's still not enough.

These aren't the only ways to address the problem, but some or all of them will need to be part of the mix to avoid unnecessary new jail building. Because county jail overcrowding involves so many different actors and moving parts, there's often a temptation to throw up one's hands and declare that new jail building and more taxpayer debt are the only possible solutions. But if county leaders each focus on the piece of the puzzle that's actually within their purview, these are not at the end of the day insurmountable problems.

RELATED: From the Caller-Times, "Medical care too costly at county jail."