Consent to search your car lets police dismantle stereo system

A couple of quick Fourth Amendment items via Liberty and Justice for Y'all:

First, the US 5th Circuit Court of Appeals ruled that when a driver gave DPS troopers consent to search his vehicle, they were justified in taking out a screwdriver and dismantling his car speakers on the side of the road to look for drugs.

Also from LJ4Y we get a good roundup of discussions on a SCOTUS case, City of Ontario v. Quon, an electronic privacy case in which oral arguments were heard this week. My own views on the degradation of the Fourth Amendment were well stated by Jamie Spencer over at the new Affirmative Links group criminal defense blog, so I'll refer readers to his essay rather than replicate his fine efforts.

ASIDE: FWIW, this is officially the 5,000th post on Grits for Breakfast since the blog was launched in October 2004. Thanks for reading.

Finally: TYC sex abuse trial begins in West Texas

Five years after the allegations were investigated and three years after the underlying allegations hit the headlines, spurring massive upheaval at the agency, former Texas Youth Commission administrator Ray Brookins' trial finally began yesterday. Here's a report from AP and another from the Odessa American, which also recently published an article on the future of the town of Pyote now that the West Texas State School has closed.

MORE: From the Odessa American. And from Wednesday.

Trooper who shook down motorists sentenced

Kudos to the Texas Department of Public Safety for ferreting out a corrupt trooper in an undercover sting who was shaking down Latino motorists. According to the Houston Chronicle:

A former Texas Department of Public Safety trooper was sentenced [Tuesday] to federal prison for stealing money from motorists, particularly Hispanics.

Michael Anthony Higgins, 43, was sentenced in Corpus Christi federal court to four years in prison, federal officials said.

He also must serve one year of supervised release and was ordered to pay $850 in restitution.

A jury convicted Higgins on Jan. 13 of four counts of willfully stealing money from motorists he stopped on the highway while he was working as a trooper.

Federal authorities said Higgins stopped motorists who appeared to be of Hispanic descent and stole their money, usually in amounts of several hundred dollars.

Civilian complaints led DPS and the Texas Rangers to investigate Higgins.

An undercover agent posing as a motorist was stopped by Higgins, who asked the driver for money and then took some of it, officials said.

Sex Parte okay in Hood case, say courts

I've written before that that Charles Dean Hood capital murder case at times feels like an optical illusion by M.C. Escher, with more things wrong with the picture from each new angle one examines.

Truly it must be one of the strangest legal journeys in Texas history. The judge and prosecutor have an affair either before or during Hood's trial (depending on which story you believe from whom), and continued to remain "close friends" who traveled together apart from their spouses for several years thereafter. But six of the nine members of the Texas Court of Criminal Appeals said that was no reason to stop an execution, which surely has nothing to do with the fact that the trial judge in question, Verla Sue Holland, was later elected to the CCA and served with 8 of the 9 sitting members.

Yesterday the US Supreme Court declined to hear the case, so the judiciary as of now has officially signed off on this behavior: Going forward, judges sleeping with prosecutors may get a pass by Texas appellate courts if they successfully conceal the behavior long enough, is the message we may take from this bizarre chain of decisions. Gotta love that stare decisis, baby.

One can't read much, though, into SCOTUS' denial of cert because their main interest is in managing Texas' death penalty. In February, the CCA found cause on different grounds related to jury instructions (that contradicted their previous rulings in the case) to overturn Hood's death sentence, finally acquiescing in a 20-year long dispute and admitting the court had "completely misunderstood" the US Supreme Court in two decades of decisions.

It's probably true that they'd "misunderstood" in the sense that their rulings weren't in line with SCOTUS and the high court kept benchslapping them in sharp, public rebukes. But it was a damn convenient time for the flip-flop, giving the CCA alternative means to grant Hood relief without ever having to rule on the conduct of their friend and former colleague.

The whole situation stinks to high heaven.

NUTHER THOUGHT: One wonders if state and federal courts' toleration of such egregious, admitted misconduct by judges and prosecutors doesn't contribute to headlines like this one: "80% of Americans Don't Trust the Government."

Federal Prosecutors Along Southwest Border Overwhelmed by Soaring Drug, Immigration Cases

The indispensable Transactional Records Access Clearinghouse just released an excellent analysis of drug cases in the five federal judicial districts along the southwestern border, finding that federal drug prosecutions by US Attorneys' offices in those jurisdictions increased 30% overall in the last 16 months.

The report includes data from the Southern and Western Districts of Texas, but the big news was out of Arizona, which saw the number of federal drug prosecutions skyrocket by 202%. The next highest increase, though, was in Texas' Southern District (Houston) which saw its number of drug prosecutions increase 53% over the same period. By contrast, despite the widely publicized drug violence in Juarez, drug prosecutions in Texas' Western District declined by 4%. However that's partly because they were already engaged more heavily in drug prosecutions:

The Western District of Texas (San Antonio) tops the border districts in the volume of drug prosecutions throughout the last five years. During the first four months of FY 2010, the pace of these prosecutions increased by 12 percent. However, the pace thus far in FY 2010 is still running slightly below the levels it experienced during FY 2008. The Southern District of Texas (Houston) had the second largest number of federal drug prosecutions during the first four months of FY 2010, right below the numbers in the Western district. The rate at which these prosecutions increased however — up 20 percent over FY 2009 and up 53 percent over FY 2008 — topped the Western district. It thus posted the second highest growth rates for the border districts (see Table 1). Unlike the pattern in Arizona, federal prosecutors turn down very few cases relative to those that the district prosecutes, and turndowns have been falling.

So Texas' Western District was already swamped with drug cases, and the Southern District is rapidly catching up. What's more:

The data also show that the volume of recommendations for the prosecution of drug cases from the investigative agencies — what the Justice Department calls referrals — have been increasing faster than the actual prosecutions. This difference has occurred because the U.S. Attorneys have been declining a growing number of the referrals coming to them from the investigative agencies. The case-by-case information further shows that many of these matters were turned away as a result of what the prosecutors said was a lack of adequate prosecutorial or investigative resources in the border districts. ...

The large number of drug cases being turned away suggests that there are serious stresses on some federal prosecutor offices. A likely major source for these strains is the powerful flood of immigration cases that has washed over the region and that at its peak in FY 2009 was two and a half times the level it was in FY 2007 (see earlier TRAC report).

RELATED: From Texas on the Potomac: "Texans ask feds to reimburse locals for smuggling prosecutions."

Arizona looking to Texas for prison crowding solutions

With their state facing a budget shortfall and overcrowded prisons, the Arizona Republic published an extended feature profiling Texas' probation reforms that's worth reading in full. Here's a notable excerpt:

Legislators [in Texas] began exploring ways to house fewer criminals in state custody and put more in community-based treatment centers where they would be provided with more of the tools to successfully re-enter society.

There were no changes to sentencing guidelines because, Madden said, changing punishment for crimes would do nothing to help the immediate population problem.

"Sentencing guidelines won't help you next year," Madden said. "Without retroactivity on it, you're just looking in a forward manner. That bought me nothing in the short term."

Instead, the efforts in Texas focused on providing more programs for convicts while they are still in custody to help them stay off drugs and train them for jobs when they are released.

The state spent more than $26 million to offer more substance-abuse treatment in jails for low-level drug users and property criminals. It also began to offer intensive substance-abuse treatment to prisoners, which includes a requirement to spend time in a treatment center after release.

The state also spent more than $110 million to build residential treatment centers and halfway houses to help former prisoners.

For those who did violate their release conditions by using alcohol or drugs or failing to pay fines, the state set up a system of progressive sanctions that provided quick, short-term responses, Madden said, such as putting offenders in county jail for the weekend instead of shipping them back to prison. The state also spent $30 million to create more short-term detention centers.

The changes cost the state $241 million but saved much more.

What the Republic didn't say is that Texas risks dismantling those investments in diversion programming next year, just like Kansas did recently. Lately Texas has received a great deal of national praise for its smart-on-crime reforms that leveled off inmate growth and prevented new prison construction while reducing crime. I hope when the budget crunch hits next year in full force, the Texas Legislature makes smart decisions and proves itself worthy of such adulation.

Via Sentencing Law & Policy.

Harris jail crowding forces stop to arresting traffic violators

Here's an example illustrating why I generally oppose new jail building in Harris County: They're using the jail to incarcerate low-level offenders who aren't a threat to anyone, and as long as jail capacity is available, officials won't change the policies that cause jail overcrowding. Without that extra capacity, however, policy change must occur first. Toward the end of last week the rubber finally met the road, reported the Houston Chronicle ("County jail woes spur HPD to alter arrest policy," April 18), when:

The Houston Police Department stopped arresting people for minor traffic violations late Thursday, hours after Sheriff Adrian Garcia told the city to slow down the flow of arrestees into the county's booking center.

“The impact is limited mainly to traffic violations. We're not going to put people in jail for new or existing traffic violations,” HPD Assistant Chief Vicki King said. She said the leniency only applies to people who would have gone to jail for a combination of low-level offenses — weaving in traffic while driving without insurance, for example.

She said public safety is not threatened.

“We will not release criminals back into our city. If you commit a criminal offense in the city of Houston we're going to find a home for you,” King said.

The sheriff's order went into effect Thursday morning. It requires Houston police to call the County Jail every two hours to see how many inmates it can accept.

By Friday, even after the stop-arrest order, Houston city jails started filling. At 9 a.m., the city had 69 inmates ready to send to the county, but was told the booking center could not take any.

The city got the same answer two hours later when it had 99 people waiting. At 1 p.m., it was allowed to send 10 of the 109 designated for transfer. By late Friday afternoon, the city was holding 127 inmates that normally would have been sent to the County Jail. The city's two main jails have a capacity of 400 inmates. Friday afternoon they were holding 360.

This move reminds me of Winston Churchill's observation that Americans can always be counted on to do the right thing, after they've tried everything else. Bottom line: If so many people are being arrested for traffic violations in Houston it was having an impact on jail populations, that needed to stop anyway and nothing except running up against jail population limits could possibly make them change their ways.

OTOH, if jail space exists it's always possible to find violators to fill it; the general rule with jails is "if you build it, they will come." In this case, nobody thinks these arrestees pose a significant threat. Houston Police Chief Charles McClelland told KTRK TV, "These are not dangerous violent offenders that are being diverted, so I don't think the public's at risk."

Harris County could reduce jail overcrowding even more if they would use all the methods in their toolkit. Mostly the responsibility falls to local judges, but both Houston PD and the Sheriff refuse to allow their officers to exercise authority granted by the Legislature in 2007 to give citations instead of arresting people for certain nonviolent Class B misdemeanors. That change would go a long way toward reducing front-end pressure on the booking center, which is where they're facing a bottleneck, but neither agency will pull the trigger. And if those offenders needn't be in the jail, for damn sure Harris County shouldn't be jailing non-intoxicated traffic violators.

MORE: From Kuff.

Leaving Money on the Table: The Argument for Amnesty in the Driver Responsibility Program

The following was adapted from Grits public comments submitted to DPS regarding the proposed indigency rules for the Driver Responsibility program. The Public Safety Commission will hold a public hearing on the rules April 26.

Texas Department of Public Safety staff told the Public Safety Commission in February that they’d revised the proposed Driver Responsibility rules from their more aggressive proposal last September because estimates from the Comptroller’s office suggested the changes would cause a steep decline in revenue. Just to have said it, both I and the Texas Fair Defense Project requested those estimates under the Public Information Act, and we were told they do not exist. No one at the Comptroller’s office appears to have made such an estimate and it’s unclear what if any econometric modeling has been done to assess the real effects of the proposed rules.

If such estimates had been performed, I’m confident staff would not have eliminated from their proposed rules an Amnesty program for the 1.2 million defaulted drivers who’ve already lost their licenses because of the DRP surcharge. These drivers a) are not paying anyway and b) for the most part are still driving, just without a valid license or insurance. So it’s bad public policy not to create a path to legality for them. But it’s also bad economics. With 1.2 million drivers noncompliant, if just 1/3 of them took advantage of an amnesty program and paid an average of $250 each to get their driver's license back, that would generate $100 million in additional revenue (400,000 x $250) from drivers who otherwise weren't likely to pay. Why leave that money on the table?

I can understand why, in the current economic climate, some in state government might be reticent to enact changes that could reduce revenue to the General Fund. But I cannot understand failing to create an Amnesty program to encourage noncompliant drivers to at least pay something. That creates a revenue windfall that it makes no sense to forego.

Ohio passes innocence reforms Texas sacrficed on Voter ID altar

Ohio passed some of the innocence reforms that Texas legislators sacrificed on the altar of Voter ID legislation. According to Steven Weinberg at True/Slant:

The law, known as Senate Bill 77 within the 128th General Assembly session, runs 25 pages (at least as printed from my computer).

The most important provisions accomplish this:

*When police are trying to identify suspects, the photo identification procedures and live lineups must be conducted in a double-blind manner. That means the law enforcement officer conducting the procedure does not know the identity of the suspect.

*Police agencies should record all interrogations of suspects in certain types of cases from the start to the finish. Confessions that are part of the interrogation process would thus be recorded, too.

*DNA evidence from murders and sexual assault cases would be preserved far better than before.

*DNA testing of suspects can occur during the parole phase as well as the prison phase.

In a followup post, Weinberg laments that cases predating the reforms aren't being given a second look by prosecutors and judges who instead say they prioritize finality.

California considers abolishing youth prisons, cuts to adult prison staff

Coupla notable items out of California. First, according to the LA Times:

despite recent reports by the nonpartisan Legislative Analyst's Office, the Little Hoover Commission and the Center on Juvenile and Criminal Justice calling for the system's closure and the reallocation of its $322.7 million budget to other spending priorities, the state Legislature has taken no action.

Maintaining the five facilities is a waste of precious resources. Because the system is the subject of a lawsuit brought by the nonprofit Prison Law Office over the horrific conditions within the state's youth correctional facilities and the consent decree that resulted from it, the state spends an average of $228,715 a year for each of the 1,400 youths in its custody. ...

Retaining the state-run youth corrections system is no longer necessary because the requisite institutional facilities now exist at the county level. Over the last 12 years the state and federal governments invested millions of dollars to expand and modernize county juvenile justice facilities across the state. According to the reports from the Legislative Analyst's Office and the Center on Juvenile and Criminal Justice, California counties now have 2,000 to 3,000 surplus high- and medium-security institutional beds that could more than absorb the majority of the youths remaining in state facilities at less than half the cost.

Regular readers will recall this proposal sounds amazingly similar to Texas state Sen. John Whitmire's call to "abolish" the Texas Youth Commission and downstream their placement in secure lockups to counties, who would get grants for the youth so diverted. Texas started down that road and has closed several facilities, shuttering two more on August 1. The Senate Criminal Justice Committee will hear testimony on Texas' diversion grants to counties at an upcoming meeting on April 29. TYC's costs per youth are about $99,000 per year according to the Legislativ Budget Board, about not as high as California's, but substantially more than the $17-18K spent on inmates at TDCJ.

Another item from California recently caught my eye. Candidates in California elections are calling for cutting state jobs to reduce the budget. But it turns out the largest groups of employees are prison guards and university staff. Says CalCoastNews.com: "Bottom line: Any candidate who claims to have a plan on cutting state jobs will have to address the impact on education and Corrections."

Texas has the same problem: Prison staff make up 16.9% of all state employees, which according to the Pew Center on the States (pdf, p. 15) is the highest percentage in the country.

Eyewitness ID reform remains unfinished business for police, Legislature

While Texas passed a laudable innocence compensation statute last session, most other innocence-related legislation (with the notable exception of state Sen. Juan "Chuy" Hinojosa's bill requiring corroboration for jailhouse informant testimony) died in the House as a result of the end-of-session meltdown over voter ID. Perhaps the biggest loss for the innocence movement in that debacle was the failure of legislation to require police departments to have policies on eyewitness ID that conform to evidence-based best practices.

This TV news report from KHOU Houston reminds us that most police agencies still haven't switched from traditional, flawed lineup methods or even created policies to govern lineups. Police departments could do this on their own, and a few have done so, but I'm not holding my breath for the rest to follow suit of their own accord. The Legislature needs to go back to those policy reforms as a top priority in 2011.

To illustrate the problem, KHOU reporter Brad Woodard focuses on the case of Anthony Robinson, who:

was arrested for the rape of a woman at the University of Houston back in 1987, when DNA testing was not yet admitted as evidence in Harris County.

At trial, the prosecution relied heavily on the victim’s identification of Robinson. They called her a "dream witness."

She was young. She was articulate. She was pretty.

And she was wrong. ...

Robinson, whose story was featured on the PBS series "Frontline," was paroled in 1997 and immediately began scraping together the money to pay for his own DNA tests, ultimately proving his innocence and winning a pardon from the state.

See the full report from KHOU:

Forensic commission's Willingham committee meeting in secret

Committee meetings of the Forensic Science Commission are being held in secret, including a committee evaluating the Todd Willingham arson investigation which met yesterday. Death penalty activist Scott Cobb emailed FSC coordinator Leigh Tomlin to ask:

I heard your voice mail that the Complaint Screening Committee and the Investigative Committee on the Willingham/Willis Case held meetings yesterday in Dallas. When and where were they held? I didn't see any meeting notice posted on the website. I only knew about it because I had read in the Houston Chronicle that it was going to be held next Thursday. Did the Commission provide a public notice before the meetings were held? How can the public be aware of when these meetings are going to be held in the future? Are there minutes available of the meetings yesterday?

Tomlin replied with a single sentence: "The meetings were not public meetings."

They could be public, of course, at the discretion of the commission and the chair. But the new rules Chairman John Bradley rammed through at the commission's last meeting allow him to opt to have closed sessions.

Having watched that meeting online, I seriously doubt the majority of commissioners understood that this would be the result or intended to close their deliberations. This is simply the chairman exercising his discretion in the convenient absence of any rule to the contrary. This is what happens when rules aren't publicly posted or even shared with commissioners before the day they're required to vote on them. One hopes the commission majority will override their chairman to revisit and amend those rules, making committee hearings public and publishing their agendas just like regular commission meetings.

The Forensic Science Commission never conducted its business in secret before. What do they have to hide?

Cobb emailed me the above exchange and asked, "Do you think the Texas Forensic Science Commission is justified in holding non-public meetings of the three person committees it has set up?" I replied, "Legally, yes. However clearly discussing more things in private was a primary purpose of the new rules."

Doublechecking on the legality, according to the AG's Open Meetings handbook (p. 19 of the pdf), "Generally, meetings of less than a quorum of a governmental body are not subject to the Act," except "when a governmental body appoints a committee that includes less than a quorum of the parent body and grants it authority to supervise or control public business or public policy, the committee may itself be a 'governmental body' subject to the Act."

But who cares? It may be legal but that don't make it right.

MORE: See the Houston Chronicle's Rick Casey's column predicting further delays in the Willingham investigation published earlier this week.

RELATED:

• Forensic commission should 'reconsider' rules, pull Willingham case out of stacked committee
• Hectoring approach works for John Bradley at Forensic Science Commission, for now
• Forensic Science Commission meets today, but does it have rulemaking authority?
• Saying 'no' to John Bradley
  
• Bradley violated Open Meetings Act at forensic hearing

'Absolutely irresponsible': Okies boosting criminal penalties but can't house inmates they've got

Oklahoma prison officials are calling out their Legislature for continuing to boost criminal penalties at a time when prisons are jam-packed and understaffed. Reports Tulsa World ("State corrections officer staffing historically low," April 16):

Board [of Corrections] member Robert Rainey said the board's suggestions on ways to save money have not been accepted by lawmakers.

He said lawmakers continue to increase prison sentences and criminalize activities at a time when the agency is taking cuts. That, he said, is "absolutely irresponsible."

Rainey said lawmakers were invited to attend the meeting, but only one — Republican Rep. Jason Nelson of Oklahoma City — attended.

The department has added about 700 new offenders since last April, Jones said. ...

"We have no beds," he said. ...

Board member David Henneke called the inmate population "beyond critical."

This story is notable for a couple of reasons. First, add the Okies to the list of states struggling to pay high incarceration costs in a budget crunch. Second, it's hard for legislators to stop themselves from boosting criminal penalties, even when there's no money to pay for them.

We've yet to come to grip with this dilemma in Texas. Despite an array of laudable, nationally recognized criminal justice reforms approved in the last several sessions, Texas has continued boosting criminal penalties and increasing sentence lengths, even as the the Legislature spent hundreds of millions on diversion programs. Texas added 59 new felonies during the last legislative session, bringing the total to 2,383.

In Texas, part of that cognitive dissonance can be explained by the fact that the legislation went through different House committees (reforms in Corrections, penalty hikes in Criminal Jurisprudence). Even more importantly, the Legislative Budget Board assigns no "fiscal note" (bureaucratese for "cost") to criminal penalty hikes for budget purposes, so legislators can pass them without directly funding the extra expense. I don't know enough about Oklahoma's legislature to know how they budget criminal penalty hikes, but in general legislators everywhere seem to be in love with these so-called"enhancement" bills and behave as though money is no object.

Harris deputies form Caucasian officers group

This is so stupid I hate to bring it up, but a disgruntled Harris County Sheriff's deputy has launched a new organization he's dubbed the Caucasian Law Enforcement Association, which hopes to compete for membership with the Harris County Deputies Organization and black and Latino officer groups, even seeking authority for payroll deductions. According to the Houston Chronicle:

When asked why he uses the word “Caucasian” in the group name, he said, “From a marketing standpoint, the sky's the limit. There are no other groups out there.”

In 1993, a small number of Houston Police Department employees formed the White Houston Officers Association. The group formed after 106 black and Hispanic officers received promotions as the result of a settlement of a discrimination lawsuit. The association is defunct.

[Daniel] McCool, who describes himself as a conservative Republican, split with the Harris County Deputies Organization over its endorsement in the 2008 sheriff's election. McCool volunteered for then-incumbent Tommy Thomas. The union backed Garcia, who won and became the county's first Hispanic sheriff.

It's hard to take this seriously or consider it more than a spiteful jab at black and Latino officer groups and McCool's foes at the main deputies' union. He can claim that membership is open to all, but the public perception will inevitably be that some Harris deputies want their own little "whites only" club. And let's face it: There's no good reason to put the anachronistic "Caucasian" in the group name except as a defiant provocation.

McCool would say that he's doing the same thing as black and Latino officers groups, but there are key, historic distinctions. And in any event, two wrongs don't make a right. The solution to racial division is not further splintering.

None of that will matter though because I can't imagine many deputies will want their name associated with an organization devoted to promoting white rights. I'd look for this to fizzle out after the initial headlines die down.

In the meantime, Deputy McCool, thanks for giving the state a black eye and making white Texans look like a bunch of racist jerks. Very helpful, that.

TX Appleseed: Don't put misbehaving schoolkids with criminal ones

With the Senate Criminal Justice Committee preparing to examine school discipline issues at a hearing later this month, Texas Appleseed has produced a timely report titled "School Expulsion: The Path from Lockout to Dropout" (pdf). Here's the meat of the accompanying press release:

Public interest law center Texas Appleseed today released a new report documenting the overrepresentation of minority and special education students in expulsions from Texas schools -- particularly for non-criminal Student Code of Conduct violations. ...

“Being expelled from school increases these students’ chances of advancing farther in the school-to-prison pipeline,” said Texas Appleseed Legal Director Deborah Fowler. Surprisingly, some smaller districts (Aldine, North East, Waco, Klein, Brownsville and Killeen ISDs) top the list of Texas school districts expelling the largest number of students (2007-08). Dallas ISD expelled the most students (408) to a Juvenile Justice Alternative Education Program that year, followed by North East ISD (290) and Houston ISD (260).

“Compared to the nearly 100,000 students sent to school districts’ Disciplinary Alternative Education Programs annually, a much smaller number of students is expelled from Texas public schools – only 8,202 students in 2008-09. However, the ramifications are more serious – and we are seeing the same disturbing trend: minority and special education students are being expelled at rates disproportionate to their representation in Texas’ student population,” Fowler said. Among the major findings:

• Discretionary school expulsions outnumbered mandatory expulsions (for offenses listed in the Texas Education Code) by two-to-one (2008-09).
• Special education students make up only 10 percent of the student body statewide, but account for 21 percent of all expulsions in Texas (2008-09). African American special education students are over three times more likely to be expelled than other students, and Hispanic special education students are two-and-a-half times more likely to be expelled.
• Expulsions for “serious or persistent misbehavior” or more minor Student Code of Conduct Violations in a Disciplinary Alternative Education Program (DAEP) account for more than a third of all expulsions statewide (2008-09) – and 55 percent of discretionary expulsions to JJAEPs that year.

“In too many cases, expelling students for ‘serious and persistent misbehavior’ in a DAEP is introducing young people to the juvenile justice system when they have committed no crime – which is an extreme consequence for behavior that would not be an expellable offense in any other educational setting,” Fowler said.

In Texas, the majority of students are expelled to one of the state’s 37 Juvenile Justice Alternative Education Programs (JJAEPs) operated by local juvenile boards and overseen by the Texas Juvenile Probation Commission. In counties without a JJAEP, students are expelled to the street – or in a limited number of instances, held longer in DAEPs. The majority of counties with a JJAEP are prosecuting “serious or persistent misbehavior” in a DAEP as a CINS offense (Conduct in Need of Supervision) – “so now these students, who wouldn’t even have been expelled for this behavior in their regular school, are coming under the jurisdiction of the court. This is the most obvious example of a disturbing trend toward criminalizing student misbehavior,” Fowler said.

Texas Appleseed is recommending implementing school-wide positive behavior supports programs that have been shown to dramatically reduce the need for out-of-school disciplinary placements and placing a statewide priority on increasing mental health resources for students in public schools. Texas Appleseed also is proposing changes in state law to:

• Require the Texas Education Agency to monitor and enforce DAEP standards. (State lawmakers required TEA to adopt DAEP standards during the 2009 session, but stopped short of having them monitor or enforce them.)
• Eliminate school districts’ option under the Texas Education Code to expel students for “serious or persistent misbehavior” or other minor Student Code of Conduct violations while in a DAEP.
• Eliminate “serious or persistent misbehavior” while in a DAEP from the list of offenses prosecutable as Conduct in Need of Supervision (CINS) under the Texas Family Code. ...

Surveyed JJAEP administrators recommend eliminating discretionary student expulsions to JJAEPs – particularly for “serious or persistent misbehavior” – given the challenges of having to simultaneously address the needs of these students alongside those expelled to JJAEPs for major criminal offenses. Lack of a statutory definition for “serious or persistent misbehavior” accounts for the wide variation across Texas school districts in expelling students for this offense.

Will public support cuts to prisons during budget crunch?

I've not seen any opinion research on how Texans might prioritize budget cuts next year, but a recent poll in California, which is facing an epic budget crisis, found cutting corrections costs is one of the few reductions supported by the public. According to the San Diego Union-Tribune:

The poll asked voters if they would support or oppose cuts in 14 areas of state spending to reduce the budget deficit. Majorities of voters favored making cuts in only two of the 14 categories.

“The voters really aren’t showing us the way on these kinds of things,” said Field Poll director Mark DiCamillo. “Previous surveys have shown that they do favor spending cuts over tax increases, yet when you ask them which areas of state spending would you favor cutting, the big categories are rejected by large margins.”

Reductions in two areas were favored by majorities of voters polled — prisons and correctional facilities, 56 percent, and state parks and recreational facilities, 52 percent.

I'm sure the same voters all want lower taxes, of course. That seems like par for the course these days. Still, it's interesting that prisons topped the list of cuts Golden State voters say they could live with. I wonder if a Texas poll would discover similar results here?

Increasingly I find TDCJ's call for exclusion from budget cuts ill-conceived, and even more so their suggestion that, if necessary, cuts should come from probation and diversion programs instead of prisons. Compared to other big-ticket items, corrections is the one area where Texas can cut safely and smartly. On schools and health care, the financial dynamics are more complex and problematic. School finance is its own nasty mess and every dollar cut from healthcare loses $2 from the feds.

For corrections, though, Texas knows what path will get us there: Expand diversion programs, adjust sentencing policies, and close older, more expensive prison units or eliminate contracted beds we don't need. It won't be difficult to identify units for possible closure. More than three out of five Texas prisoners are eligible for parole; many could be released safely if we'd beef up supervision and reentry resources for parolees. With a few, key policy adjustments, thousands more could be diverted into strong probation on the front end.

So the best reason to cut corrections during a budget crisis is because, as opposed to schools and healthcare, it's actually possible and reasonable to do so. If it turns out that, as in California, the public supports prison cuts more than other possible strategies to reduce spending, it'll be hard to argue that TDCJ's prison budget should somehow remain sacrosanct.

Fortress America, meet the Texas capitol: Metal detectors, xrays coming at entrances

So a problem presents itself: After an argument with a state Senate staffer, an angry constituent went outside the building and fired off his gun.

The solution by the state: Put metal detectors at the capitol entrances. The state Preservation Board signed off on that move yesterday, with Gov. Rick Perry the lone dissenter.

The problem with the solution: The shots were actually fired outside. Metal detectors won't stop that. And from a practical standpoint, during peak periods of entrance and egress, large crowds will be waiting to get through the metal detectors so the "solution" would give the shooter more targets. Genius, huh?

I hate this decision. Someone fires off shots outside, but does DPS beef up security patrols outside the capitol as a result? Hell no, they recommend focusing more resources inside the doorway and creating more outdoor targets. It's a non-solution which won't address the problem that inspired it, akin to being attacked by folks in Afghanistan and responding by invading Iraq.

Lt. Governor David Dewhust said this was the "only option" in light of recent events, but that's not remotely true. It's not even an option that's responsive to the particular situation that inspired it.

See related Grits posts:

• Divisions among governor, legislators over airport-style security at capitol entrances
• DPS plan would put x-rays, metal detectors at capitol entrances

Counting inmates in census skews legislative, county district drawing

Maryland this week took the remarkable step of requiring that inmates be counted at their home addresses instead of the county in which they're imprisoned for purposes of legislative redistricting after the 2010 census. Good for them.

Several Texas' legislative districts would look significantly different if prisoners were counted in the census as being from their home county instead of the one in which they're incarcerated. The problem most negatively impacts Houston, Dallas, and black communities, all of which disproportionately send inmates to TDCJ. According to Peter Wagner and Rose Heyer at Prisoners of the Census: "Harris County is 16.3% of the Texas population, but it supplies 21.5% of the state's prisoners. ... Dallas County is only 10.6% of the Texas population, but it supplies 15.4% of the state's prisoners. ...While Blacks are 11.5% of the Texas population, more than a third of the incarcerated people in the state are Black."

These inmates artificially prop up the population of rural counties. Again, from Prisoners of the Census:

In our national research, we found 21 counties where at least 21% of the population reported in the Census was incarcerated. Ten of these counties were in Texas. A full third of tiny Concho County (population 3,966) is behind bars, but the numerous large prisons near Huntsville can even put populous counties like Walker County on the list.

The ten Texas counties with 21% or more of their population incarcerated were:

Concho: 33%
Mitchell: 26%
Anderson: 25%
Hartley: 24%
Jones: 23%
Walker: 23%
Childress: 22%
Karnes: 22%
Bee: 22%
Madison: 21%

State Rep. Lois Kolkhorst's district has 11.97% prisoners, which according to Wagner is:

a higher figure than in any other state legislative district yet discovered in the United States. Prisoners can't vote in Texas, and on their release they will be returning to their home communities, but their presence at the prison town in the Census dilutes the votes of their family members back home. Says Wagner: "Every group of 88 residents in District 13 gets as much of a say over state affairs as 100 people in Houston or Dallas. The Supreme Court's 'One Person One Vote' rule was supposed to eliminate such large difference in voting power."

State Rep. Byron Cook's district was close behind at 11.73% prisoners. The state Senator with the highest prisoner to voter ratio was Democrat Judith Zaffirini in South Texas, 2.73% of whose district is incarcerated. One would expect this demographic shift to benefit Republicans, but looking at the district by district breakdowns, it often cuts both ways: There are quite a few Democratic districts like Zaffirini's that also are pumped up with prisoner numbers. Here are tables from 2007 with the number of prisoners in state House districts and state Senate districts.

Some of these counties want to count prisoners as residents when its beneficial to them but ignore them when it's not:

Bee, Brazos, Concho, Dawson, Grimes, Madison and Wood Counties excluded the prison populations when drawing County Commissioner districts, thereby avoiding giving extra representation to the district that contain the prisons at the expense of all other county districts. In Concho County, removing the prison population avoided drawing a district that was entirely incarcerated prisoners.

That's a remarkable level of cognitive dissonance, excluding prisoners for purposes of county and local elections, but benefiting from their presence when drawing legislative districts.

Redistricting is so nasty and partisan here I'd be amazed if an even-handed approach like this could be adopted next year. It's hard to see how the issue could be confronted during a redistricting session without an ugly meltdown, though I'd welcome being proven wrong. But the subject also comes up for commissioners court elections in counties with out of town prisoners. For those interested in the impact of prison populations on district drawing in your own county, see this "Democracy Toolkit" prepared by Prisoners of the Census to calculate the effects of prisoners on local district drawing.

Texas Private Prisons Map

From the blog Texas Prison Bidness, see their new Texas Private Prisons Map.

The new map gives readers a chance to see which private prison corporations operate the most prisons in Texas. The map also includes contact information for each facility, and the "facility pages" and "company pages" will track all our upcoming posts related to scandals and news involving specific private prison companies and their facilities.

The map was developed by Chadwick Wood at Coffeeshopped.com and has many additional features for people researching the private prison industry in Texas. Take a minute to navigate the map, and feel free to send us suggestions and comments.

RELATED: See which private prison units have contracts up in the coming year and hence might be candidates for budget cuts.

Public hearing set for April 26 on Driver Responsiblity rules

The details of the Public Safety Commission's public hearing on their Driver Responsibility rules have been announced, received via email:

AGENDA

Public Safety Commission Meeting

April 26, 2010, 3:00 p. m. – 7:00 p.m.

Senate Committee Hearing Room E1.028, and Room E1.016 for overflow

State Capitol Extension Bldg.

Austin , TX 78701

The Public Safety Commission will convene as posted to receive and consider public comment from all interested persons regarding adoption of proposed new 37 Texas Administrative Code (TAC) §15.163 and repeal of existing 37 TAC§15.163 regarding the Driver Responsibility Amnesty, Incentive and Indigence Program. The proposals are made under the authority of Texas Transportation Code, §708.157. The proposals were published in the March 5, 2010, issue of the Texas Register (35 TexReg 1940).

The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Each individual will be allotted 5 minutes for an oral statement. Those speaking may also turn in written comments. There will be no open discussion during the hearing. No formal action will be taken in this meeting.

Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print, Braille, are requested to contact Rebekah Hibbs at (512) 424-2953, three work days prior to the meeting so that appropriate arrangements can be made.

So mark it on your calendar if you want to attend, and I'd encourage anyyone who cares about this subject to do so. Note that written comments not submitted during the comment period may still be submitted at the hearing along with oral testimony.

I realize most folks affected by this can't attend a hearing at the capitol for the same reason it's difficult to pay the surcharge: They have to earn a living. But this bad law has cost 1.2 million Texans their drivers' licenses, and if there's a chance to create a path to legality for a large number of those folks, it's worth taking the time to come tell your story.

Regular readers know that DPS staff proposed what I consider a rather chincy, minimalist reform to the Orwellian-named Driver Responsibility program instead of using the authority given them by the Legislature to fix the DRP's biggest flaws. In Grits' comments to the PSC on these rules was suggested a set of proposed amendments developed in collaboration with Amanda Marzullo at the Texas Fair Defense Project to improve the rules in four key ways, what we'll call (for lack of a better name) the "Texas Driver Redemption Amendments":

• Create an Amnesty program to clear up noncompliance backlog
• Use accurate documentation for the indigency application process
• Make language comply with 2011 statute waiving surcharges for indigents
• Create incentives to encourage compliance for other low-income drivers

These changes wouldn't solve all the program's problems, but they'd make a good faith stab at muting the most off-key elements of its performance. Personally I'd prefer the DRP were abolished, but the Public Safety Commission doesn't have authority to do that. These amendments instead ask the PSC to go as far as they're able, within the limits of existing legal and budget strictures, to fix the worst problems associated with the surcharge.

More to come on this topic between now and the April 26 hearing, less than two short weeks away.

RELATED: Somebody forwarded me a link to a MySpace page devoted to opposing the Texas Driver Responsibility surcharge. Page creator Mary Moody had paid her fines, then four years later her license was suspended because she'd never paid a "surcharge" she said she'd never heard about. In a YouTube video she holds up her paperwork in frustration and confusion, saying she'd paid all fines and penalties related to her offense. Needing her license, she acquiesced. But after getting on a payment plan, a late payment got her license suspended again. There's little doubt Mary's story has played out similarly for hundreds of thousands of Texas drivers. April 26 is their chance to tell somebody about it.

Also, Tamara Shippy's e-petition to repeal the DRP had 4,135 signatures at last count; add yours if you haven't signed it.

See related, Grits posts:

• Driver surcharge boosting Texas joblessness
  
• Grits comments submitted on Driver Responsibility rules
• Unexplored costs from DPS surcharge harm safety, the economy
• Comments due soon on Driver Responsibility rules
• Bill author says 'overly punitive' Driver responsibility surcharge a 'mistake'
• Indigency rules for Driver Responsibility surcharge published in Texas Register
• New Driver Responsibility rules unveiled today at DPS

See also recent press coverage:

• Some Texans want an end to Driver Responsibility program, Fort Worth Star-Telegram
• Lawmaker seeks to repeal DPS surcharge on certain traffic tickets, KVUE-Austin
• Critics: Law puts drivers on road to ruin, Houston Chronicle
• Driven to Repeal, The Texas Tribune
• State lawmakers consider repeal of Driver Responsibility Act, Fox34-News Lubbock
  
• Hefty surcharges for Texas drivers with violations to mostly uncollected, Dallas News