Harris County pleads case for mental health, probation/diversion funds in state budget

While up at the capitol Friday on other business, I ran into some Harris County folks - including former Judge and current jail czarina Caprice Cosper, as well as Alan Bernstein and Dr. Mike Seale (who Grits readers may recall graciously led me on an extensive jail tour last year), along with a small gaggle of others - who'd come to Austin to brief legislative staff on the effects, in particular, of mental health cuts on the criminal justice system and the Harris County Jail. Unfortunately, they'd just finished the event, but I picked up their handouts and read them this morning. Remarkably, the theme of their materials sounds quite similar to that struck in my reaction post on Grits following my jail tour last summer.

Harris Couty is primarily worried that cuts to community supervision, diversion programming and mental health services for adults and children go so deep that the state won't even qualify to receive federal matching funds. A document from the Harris County Commissioners Court further suggests that, from a fiscal standpoint, state spending for mental health should prioritize funding for the "least expensive services" i.e., community based  services, because they are eligible for federal matching funds through either Medicaid or Mental Health Block Grants, or even (in the case of Medicare), fully paid by the feds. Those types of services should be maintained or increased, they argue, while decreasing use of Crisis Services and state mental hospitals, which are not eligible for federal matching funds, through prevention, diversion, and community-based programming.

I've been aware for years that the state pays 100% out of general revenue for mental and acute health care for the incarcerated, while indigent people with serious health problems on the outside are typically served through programs either paid for or matched by the feds. That makes a big difference, in aggregate, regarding how much their health care costs in the state budget, especially for the seriously ill. But I hadn't considered that the same distinction applies to Crisis Services and state mental hospitals. (Half of Texas' state mental hospital beds are designated as "forensic beds" and there's already a months-long waiting list to get treatment for defendants who've been declared incompetent by the courts to stand trial.)

A few headlines from the documents distributed at the briefing give a sense of the overall gist of their message and mental health and community supervision from their written materials:

• "Cuts to Least Expensive Mental Health Services Increase Demand on More Expensive Services (State Hospital) Article II, Dept. of State Health Services (DSHS)" - ed. note, I didn't say they were all snappy headlines!
• "Most Expensive Level of Care at the State Hospitals and Jails"
• "Community-based Services Cost Less and Bring in Federal Funds." 
• "Article V [Criminal Justice] - Don't Cut Programs That Save Money"

Another document calculates "The Cost of Mental Health Cuts in Harris County," recalling that after the last major round or state cutbacks in 2003 (the 78th Legislature), "persons with severe mental illness who couldn't access services and medications soon destabilized and overwhelmed emergency rooms, law enforcement, county jails and state mental hospitals." Houston PD saw an increase of 241.5% in reports involving a person with mental illness from 2007 to 2010, including a 153% increase involving a person with mental illness who was off their psychotropic medications. Further, over the same period "HPD increasingly responded to calls involving the same person with mental illness.

• "Persons with 2 police encounters - 142.1% increase
• "Persons with 3 police encounters - 148.6% increase
• "Persons with 4 police encounters - 383.3% increase"

Also from '07-'10: Constables transported 32% more patients in psychiatric crisis from one facility to another," and "The number of persons in psychiatric crisis that the Constables picked up pursuant to court order (Mental Health Warrant) increased by 55%. Remarkably, the Harris County Hospital District had a 482% increase in psychiatric emergency admissions from 2007-2010, while the number of detainees at the Harris County Jail receiving psychotropic medications increased from 608 to 2,400 over the same period, according to the handouts.

In lieu of incarceration, hospitalization, or traditional probation, Harris County suggests the Legislature create "additional community-based options, an intermediate level of care (Medicaid Home & Community-based Services) would cost around $20 per day. The federal share would be $12 and the state share $8. (Note: Texas does not have an intermediate level of care.)" They suggest increasing line items for community mental health services to preserve matching funds for federal block grants and restoring prior levels of funding for probation/diversion programs, TCOMMI (mental health) funding, and drug treatment. I agree with all these suggestions and have suggested in the past how TDCJ and the Legislature could cut in other areas to not only justify but leverage that spending.

Pressure on the number of forensic hospital beds, which have remained static in recent years and are threatened with cuts, has been growing at an equally alarming rate: "The number of criminal defenants who needed to stay for the maximum number of days allowed for initial forensic commitments (120 days) rose by 30%." "In FY 2009, 57% of the initial forensic commitments were for the statutory maximum."  Finally, "Since the statewide waiting list for forensic beds began in February 2007, about 300 incompetent defendants wait 4 to 5 months at the jails for an available forensic bed." Good stuff on a topic that's important to jailers and judges but too often ignored in the swirl of capitol budgetmaking (or at least it was in 2003).

They want juvenile probation funding fully restored, which is understandable given the recent de-institutionalization at TYC. "Because of the availability of more community-based alternatives," they declare, "Harris County has reduced TYC commitments by 62 percent since 2007."

Since I caught them in wrap-up mode after their audience had left, I don't know how well the Harris County briefing was attended, but with scarce few exceptions, I couldn't agree more with their principal message as expressed in these handouts. Population-wise, Harris County is itself bigger than twenty-some odd states, big enough to force it to think about these problems in systemic instead of simplistic terms. The jail is a behemoth in the county budget and criminal justice spending is a big driver of county tax rates. So I'm glad to see Harris County advocating for reduced reliance on the "Most expensive level of care at State Hospitals and Jails" for the mentally ill. The officials' presentation to the Lege was precisely on point, as far as I'm concerned, though I'd add that there are also members of their own local judiciary who would benefit from a similar education session about fiscal priorities and the need to prioritize less expensive alternatives to incarceration.

Symposum celebrating freedom, justice and Barbara Jordan

Michele Deitch from the LBJ School emails to remind me that late registration is still open for an event in Austin on Monday filled with notable topics and speakers:

REMINDER:  Please join us for this important and exciting Symposium on Monday featuring two of the country's leading criminal and juvenile justice experts--Marc Mauer from The Sentencing Project and Shay Bilchik from Georgetown University's Center for Juvenile Justice Reform and former head of OJJDP.  Panelists also include many of Texas's most prominent practitioners, advocates, and scholars in the criminal justice, juvenile justice, and educational reform fields. Sen. Rodney Ellis will deliver a keynote address at lunchtime.

Please register at:  https://www.utexas.edu/lbj/news/registration/rodneyelliskeynoteluncheon

_____________

SYMPOSIUM
“THE PROMISE OF FREEDOM AND JUSTICE IN AMERICA”
February 21, 2011
Bass Lecture Hall
Lyndon B. Johnson School of Public Affairs, The University of Texas at Austin


Presented by the Barbara Jordan Freedom Foundation
Co-sponsored with the LBJ School of Public Affairs as part of a weeklong tribute to
Barbara Jordan in commemoration of her 75^th birthday
 
12:00 noon – 1:00 pm – Luncheon Keynote
(lunch served in the LBJ School 1^st Floor Lobby)
Welcome and Barbara Jordan Freedom Foundation Launch Announcement:  Prof. Michele Deitch (LBJ School of Public Affairs and Board Member, Barbara Jordan Freedom Foundation)
Introduction of Keynote Speaker:

Dean Robert Hutchings (LBJ School of Public Affairs)

 
Keynote

TEXAS STATE SEN. RODNEY ELLIS (D-Houston, and Board Member, Barbara Jordan Freedom Foundation)

 
1:15 – 2:15 pm         Panel 1:
Reducing Risk and Building Strength Through Educational Reforms and Early Childhood Interventions
Roundtable Discussion with:

Dr. Gregory Vincent (UT Vice-President for Diversity and Community Engagement)

Prof. Norma Cantu (UT College of Ed. and School of Law)

Kara Johnson (Texas Early Childhood Education Coalition)

Prof. Julian Heilig (UT College of Ed.)

Facilitator:  Dr. Lynda Frost (Hogg Foundation for Mental Health)

 
2:15 – 2:30 pm         BREAK
 
2:30 – 4:00 pm         Panel 2:
The Need for Juvenile Justice Reform
Lead Speaker:  Shay Bilchik (former head of OJJDP; current Executive Director, Georgetown University’s Center for Juvenile Justice Reform)
Responders:  
Vicki Spriggs (Executive Director, Texas Juvenile Probation Commission)
Senior District Judge Jeanne Meurer (Travis County juvenile judge)
Prof. David Springer (UT School of Social Work)
 
4:00 – 4:15         pm          BREAK
 
4:15 – 5:45 pm         Panel 3:
Mass Incarceration, Race, and Criminal Justice System Reform
Lead Speaker:  Marc Mauer (Executive Director, The Sentencing Project)
Responders:

Steve Martin (Attorney and Corrections Consultant; author of

Texas Prisons:  The Walls Came Tumbling Down)

District Judge John Creuzot (Dallas County criminal judge)
Ana Yanez Correa (Executive Director, Texas Criminal Justice Coalition)
Facilitator:  Michele Deitch (LBJ School of Public Affairs)

5:45 – 6:30 pm          RECEPTION

My apologies to Michele for not posting this sooner. My bad; just got backed up in the pile. :-(

More coverage of zeroed out chaplaincy budget

Brandi Grissom at the Texas Tribune this week had a story following up on a budget angle covered on Grits last month: "Texas prison chaplains pray, plead for funds." She quotes "State Rep. Jerry Madden, R-Plano, chairman of the House Criminal Justice Committee, [who] spoke with the chaplains on Wednesday. The services they provide have a great payback in reducing recidivism, and he says he is hopeful lawmakers will find a way to keep them working in state prisons. “I’m fairly confident somehow or another we’ll find that comparatively small amount of money and restore all or parts of it,” he says." AND MORE (2/20): From a columnist at the Amarillo Globe-News.  AND MORE: (2/21) From the Lubbock Avalanche Journal's Faith Blog.

On cops, taxes, immigration enforcement and Big Government Conservatism

The Governor decried "sanctuary cities" as a statewide emergency and legislators have scurried to file bills forcing local police and sheriffs to more directly confront immigration violations instead of merely identifying illegal immigrants after arrest. Some of them are so extreme the proposals forced the governor to walk back his comments somewhat a few days later. This week, law enforcement interests at the capitol this week rightly pointed out that bills to address this non-problem amount to an unfunded mandate. From Zahira Torres at the El Paso Times:

Texas police chiefs and sheriffs condemned efforts to make them act as de-facto Border Patrol agents, saying that law enforcement, not the Legislature, knows how to keep communities safe.

El Paso County Sheriff Richard Wiles joined other law enforcement officials from Dallas and Travis counties and the cities of McAllen, San Antonio and Austin on Thursday at the state Capitol. The group denounced Arizona-style legislation, which they say would pull their deputies and officers out of neighborhoods and impose more costs when lawmakers are cutting funding to cope with a budget deficit of up to $27 billion.

They said such legislation could cost taxpayers millions of dollars to house undocumented immigrants in state jails, pay for officer training and fight any lawsuits that may arise. In addition, they said, it would dismantle the trust that law enforcement has established with communities, making people less willing to report crimes.

"If you want to test this, pass it and see how many days it will take you to start crying for 'We need judges, we need prosecutors, we need prison beds, we need local jail space,'" McAllen Police Chief Victor Rodriguez said during a meeting with aides for state lawmakers.

More than 40 bills that target undocumented immigrants have been filed in Texas.

Some bills want law enforcement to arrest a person for violating a state criminal trespassing law if police have "probable cause to believe" the person is in the country without legal documentation. Others would deny state money to cities or counties that do not enforce federal immigration laws.

But Wiles said immigration is a federal issue and El Paso taxpayers should not have to take on an undue burden just because the city is on the border.

The Texas Tribune's Julian Aguilar had a related story titled "Will immigration laws silence crime victims?"

Quite a few self-styled conservatives claim to favor requiring local law enforcement to engage in immigration enforcement. (At least, I hear the argument made frequently.) But as a practical matter that's simultaneously a call for a big, fat unfunded mandate and inevitably local tax increases to pay for "judges ... prosecutors ... prisons ... [and] local jail space."

This is Big Government Conservatism of a brand that's antithetical to the conservatism of Goldwater or Reagan, less government and lower taxes, and it's years like this one, with government at all levels struggling to make budgets, when that fundamental contradiction becomes most acute.

Can Governor Rick Perry pardon Anthony Graves?

Perhaps the Governor's office spoke too soon about their authority to pardon Anthony Graves. Over at Pardon Power, clemency expert PS Ruckman is "baffled" that "the Governor's office says Rick Perry cannot pardon [Anthony] Graves because 'a federal appeals court had thrown out the original conviction, and a governor could only pardon a convicted criminal.' See story here."

Ruckman notes that, at the federal level, "The U.S. Supreme Court has long ruled that the president can grant a pardon at any time, before, during or after conviction." In Texas, pardons can only be granted after conviction, but as Ruckman points out, "Mr. Graves was convicted (in 1994). Had there not been a conviction, he never would have seen prison." Further, he writes, "would anyone have doubted the power of the Board and Perry to commute Mr. Graves' sentence 6 years ago? Of course not. Has the decision making of the federal judiciary now limited the ability of the State's Board and the Governor to exercise the pardon power on behalf of Graves? We think not. That limitation is simply not to be found in the text of the State's Constitution."

Fascinated by this argument, I went to look at Attorney General opinions regarding gubernatorial pardons in Texas, and found they cut both directions. Perhaps most supportive of the Governor's stance are rulings that pardons can't be granted in deferred adjudication cases because the defendant was never "convicted." (See this example.)

However, it's also clear the purpose of pardons is to mitigate the effects of over-harsh punishment, including collateral consequences, which is in line with the purpose requested by Mr. Graves. A 1944 opinion affirmed that pardons may be issued in order to remedy collateral consequences of a conviction (in that case, driver license revocation resulting from a DWI), adding forcefully that "well established rule that the discretion of those lodged with the pardoning power is not a matter which may be controlled or reviewed by the courts."

Going back even further, from an 1881 court ruling (quoted in this 1975 opinion): "The effect of a full pardon is to absolve the party from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided." Mr. Graves may have been absolved of his crime, but he has decidedly NOT been absolved from the "consequences ... of his conviction."

From what I'm reading in these opinions (though, of course, IANAL), I'd agree with Ruckman the Governor quite arguably retains his pardon power as long as Mr. Graves continues to suffer negative consequences from his false conviction at the hands of Texas courts, even though federal courts eventually overturned the conviction many years after the fact. Certainly if Gov. Perry did grant a pardon to Anthony Graves (following a recommendation, of course, from the Board of Pardons and Paroles), I don't see how anyone would have grounds to contest it.

Innocence Man: Gallego propels raft of innocence bills to front of Criminal Jurisprudence line

The House Criminal Jurisprudence Committee has posted an agenda which includes three important pieces of innocence legislation carried by Chairman Pete Gallego:

• HB 215 Relating to photograph and live lineup identification procedures in criminal cases.
• HB 219 Relating to the electronic recording and admissibility of certain custodial interrogations.
• HB 220 Relating to procedures for applications for writs of habeas corpus based on relevant scientific evidence.

State Sen. Rodney Ellis is carrying the first two on the senate side, while Senate Criminal Justice Chairman John Whitmire has filed a companion bill to HB 220. In the House, Gallego is Innocence Man!

All three of these bills passed out of the same committee last session before dying in the hyperpartisan tumult over VoterID on the House floor, where they all sat on the Calendar as time expired in 2009. Though the committee's membership has changed rather dramatically since then, the bills have since been vetted by the Timothy Cole Advisory Panel and most of the special interests who usually oppose reform bills have signed off on the compromise language. So, while weaker than Grits might prefer - particularly as it regards a "remedy" when proper lineup procedures aren't used or interrogations aren't recorded - this legislation represents an important first step toward addressing false convictions based on flawed eyewitness IDs, false confessions, and junk science. Once policies and procedures are in place and law enforcement realizes the new approach benefits them as well as suspects, it may be possible to strengthen the laws down the line.

Making me particularly hopeful, the Dallas News this week ran a blog post interviewing Criminal Jurisprudence Vice Chair Will Hartnett, who said he plans to sign on as joint author of the eyewitness ID bill. Says Hartnett:

"I'm trying to think of the old saying ... "The conviction of an innocent person is a crime unto itself." It's an indictment of our justice system. Our country was founded on protection of liberty and individual rights. The justice system needs to bend over backward to protect innocent people. The fact that we've seen so many people imprisoned for long periods of time, when they were innocent, indicates we've got a problem that needs to be fixed."

Though most Grits readers are aware, it bears repeating: Flawed eyewitness identifications lie at the root of the large majority of DNA exonerations, followed by mendacious informants, false confessions and flawed forensics. Far from maximally reliable as often presumed in court, eyewitness recollections are in fact a form of trace evidence, and like all trace evidence it can be contaminated during collection. HB 215 requires departments to have a policy on lineups (most don't) and lets defense counsel tell juries if the rules weren't followed. IMO this bill should have at least a jury instruction as a remedy, but inexplicably, in 2009 the criminal defense bar fought tooth and nail to remove all remedies from the bill, leaving the version considered by the Tim Cole Advisory Panel radically weakened. Ironic, that, but whaddya do?

By contrast, HB 219 and HB 220 won't necessarily prevent false convictions but provide new tools to try to rectify the problem. HB 219 requires recording interrogations in serious, violent crimes, with a jury instruction as a remedy. Here, though, I'd actually go farther. While for a variety of reasons I think a jury instruction is the right remedy for eyewitness testimony, a confession is a horse of a different color and if I had my way, I think the exclusionary rule should apply. That, however, is not what this bill does, which is why for the most part law enforcement interests are okay with it. Prosecutors actually prefer recorded confessions, of course, because they're better evidence. And the declining cost of viable recording equipment makes the expense factor for local agencies increasingly minimal.

HB 220 is perhaps my favorite of the three, a simple, clean little bill on a little-understood topic: habeas corpus. It addresses a situation which has faced several DNA exonerees before their names were finally cleared: They filed so many habeas writs they were declared writ abusers and prohibited from filing successive writs in the future in the interest of finality. (Of course, the Catch-22 is that, if you're really innocent, you might just keep filing habeas writs no matter how many times they were turned down!) This bill lets habeas writs under such circumstances be considered if "relevant scientific evidence is currently available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial." The bill was the subject of intense negotiation last session with the DAs lobby but (knock wood) those agreements appear to be holding I've heard no complaints about the version presently on the table.

Though anything can happen and there's much work ahead, there's also reason for optimism these bills can pass: The Chairman choosing to author them, much less propel them to the front of the line, means they might actually have time to get out of the House this time, and essentially similar versions passed the Texas Senate in 2009. But that's getting ahead of ourselves. First up: Tuesday's committee hearing. I'm quite looking forward to it.

 RELATED:

• Responding to unanswered questions on Rodney Ellis' innocence legislation: "How much of an innocence problem do we really have in this state?"

Eyewitness identification

• First Texas DNA exoneration of 2011: Cornelius Dupree
• Bill requiring eyewitness ID policies a good first step, but remedy still needed for noncompliance
• 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
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Dallas PD moves to blind, sequential lineups
• CCA Integrity Unit: Eyewitness ID reform should be top innocence priority

Recording interrogations

• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Habeas writs

• The evisceration of habeas corpus in American jurisprudence
• On the usefulness and limits of federal habeas petitions
• Parsing post-conviction writs
• Prosecutors seek to thwart postconviction innocence claims
• Bill would allow habeas appeal based on discredited science

Drug courts are OK, and other stories

Here are a several stories that may interest Grits readers, starting off with items from couple of Houston criminal defense blawggers doing some heavy lifting:

Monday morning quarterbacking decision on police officer indictments
Paul Kennedy rounds up coverage from a town hall meeting in Houston where he sat on the dais, and critiques the District Attorney's decision not to seek felony charges against police officers whose beating of a 15-year old boy was incidentally caught on a nearby business' security video. Writes Kennedy: "When this issue of police brutality is raised at a city council meeting, the mayor, Annise Parker, waves her hand and tells the council and the audience that a public meeting is not the correct forum to discuss police brutality. What then, Ms. Parker, is the correct forum? We all know it happens. Until we acknowledge that fact, nothing will be done to stop it."

Part of the (Numbers) Game
Meanwhile, Mark Bennett on Tuesday published an internal memo from the DA's office laying out the rules for a game where prosecutors compete against one another for prestigious assignments by seeing who can first rack up the largest number of jury trials, a topic that received followup coverage from the Houston Chronicle.

'Deaths, lawsuits don’t stop expansion of GEO immigration prisons'
At the San Antonio Current, Michael Barajas has a critical feature cataloging recent victories and defeats for the private prison company, the Geo Group, particularly its aggressive expansion into the immigration detention market. The subhed to the story is: "Deaths, lawsuits don’t stop expansion of GEO immigration prisons."

Drug courts are OK
Those interested in the subject of specialty courts might be interested in this account of drug courts in Oklahom from the Tulsa World. 

Proposed criminal justice budget cuts at USDOJ
Via Sentencing Law and Policy, "the Crime Report has this effective entry, based on this official document, reviewing the criminal justice cuts in the proposed budget released today by President Obama's administration."

Spooks in San Antone
Off topic, I suppose, but did you know there's a secret CIA facility at Camp Stanley, an Army weapons depot north of San Antonio? Nobody else did either, apparently, until a whistleblower revealed it in the New York Times, alleging that "C.I.A. officials abused the State Secrets Privilege doctrine in an effort to cover up their own negligence." There have been all sorts of spooks migrating to San Antonio and Austin in the last few years, but I hadn't heard about that particular connection until Jason Trahan made it.

Bittersweet exoneration stories

Coupla notable, if troubled, innocence-related stories:

Tony Hall, the East Texas man whose false conviction for child molestation was discussed in this Grits post,  was formally exonerated by the Court of Criminal Appeals this week. These lines from the Lufkin Daily News, though, broke my heart:

While Wednesday should have been a happy day for Hall, it was a day of mixed emotions, as he unexpectedly lost his half-brother, Sammy Fuentes, Sunday morning. Fuentes, 44, was found dead at a park behind CVS on Frank Avenue. Hall said he believes his brother died of a massive heart attack, as their father died of one at 54.

“He was at my house Saturday. His momma called Sunday and said he was gone,” Hall said tearfully. “I thought Sammy would be here to share this with. We were going to go to Houston to celebrate when I won my case.”

A month ago, Hall lost another close friend, a woman named Jane.

“I don’t have anybody to share this with. This should be a happy day, huh?” he asked shrugging. “(Attorney) Jeff (Bates) called me this morning and said ‘you won, Tony.’ I just broke down. It was too much to take. I said ‘but it feels so empty.’ I’m free. I’m innocent and they know it now, but I would trade all of this to have Sammy and Jane back.”

Ugh! What a terrible, bittersweet "victory," having served the 15-year sentence day for day. Perhaps relatedly, this AP article describes the close-knit relationship among exonerees in Dallas, who are so numerous, and face so many unique difficulties, that they've more or less formed their own support group. As Mr. Hall's story demonstrates, there are some issues faced by exonerees when they finally leave prison that the rest of us could probably never relate to, the depth of compounded tragedy is so profound. Poor guy. “I’m going to take this money, pay my mom’s bills off and get her a place and then I’m gone,” Hall told the Lufkin paper. “I’ve got to go somewhere else and start over far, far, far away.” I don't blame him.

In other innocence-related news, Gov. Rick Perry said he thinks Anthony Graves' case was a "great miscarriage of justice," which must really irk former Burleson DA Charles Sebesta. From the Houston Chronicle:

Governor's office spokeswoman Lucy Nashed said Perry could not pardon Graves because a federal appeals court had thrown out the original conviction, and a governor could only pardon a convicted criminal.

The governor's office has been consulting with Graves' attorneys, Nashed said.

"We understand that Anthony Graves is innocent, and have been in contact with his lawyers, who are pursuing every available option to ensure that he is granted the restitution he deserves," she said.

Graves attorney Jeff Blackburn of Amarillo said the governor's statement that Graves is innocent gives a moral boost to the effort to win compensation for him.

The Comptroller ruled that the innocence compensation statute, which in the interest of full disclosure I helped lobby for in 2009 on behalf of the Innocence Project of Texas, doesn't cover Graves' unique circumstances. The statute was designed to address the 21st century rise of DNA exonerations, while Graves' case doesn't fit that narrow procedural mold. And, the reality is the language was a compromise with DAs and law enforcement interests who didn't want to expand the definition of "exoneree" too broadly, which is the practical reason for the disconnect between the statute language and courtroom procedure that Scott Greenfield discusses. Still, it'd be a shame for him to have to resort to some massive federal civil rights lawsuit when the Governor agrees that Graves was falsely convicted and "deserves" compensation.

MORE: From Paul Kennedy, on the denial of Anthony Graves' compensation.

Reduce inmate population to cut prisons budget

Mike Ward at the Austin Statesman has a story today ("State looking at release of foreign, or sick inmates") in which legislators finally acknowledge the elephant in the room: Cutting as much at the Department of Criminal Justice as proposed in the draft House an Senate budgets will require policy changes to reduce the real number of human beings locked up, beyond just cutting the budget. His story opens:

Faced with making deep cuts to schools and human services programs, closing at least two prisons and slashing rehabilitation programs, legislative leaders are beginning to talk about what is usually unthinkable in tough-on-crime Texas: releasing more convicts to save money.

Not violent offenders, mind you, but nonviolent foreign citizens who are eligible for parole and old, infirm convicts, some of whom have been diagnosed as dying.

"We don't have the resources to continue business as usual in Texas," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston , whose committee oversees prison operations.

"Everything is on the table for discussion this year. Everything."

Of course, Grits has discussed these ideas before, but now that budget issues are on the front burner, they're not being pooh-poohed the way they might have been just a couple of months ago. On illegal immigrants, Ward reports:

About 3,000 were behind state bars as of December for nonviolent or drug offenses, according to statistics from the Texas Department of Criminal Justice. All were listed as parole-eligible. All are targeted for deportation as soon as they are released. The majority of the inmates in question were in the country illegally before their arrest, lawmakers said recently.

By some calculations, sending them all home could save more than $54 million a year — enough to restore some of the deep cuts planned in prison, human services, public education and many other state programs.

On medical parole: "Several hundred inmates who are considered terminal or completely incapacitated are among those being looked at for release, lawmakers said. The cost savings from these medical releases have not been determined."

A couple of remarkable quotes jumped out at me from the article. First:

"What this state is finally realizing is that we've got too many people locked up who may not need to be in prisons," said Sheryl Lynn Washington, a crime victim advocate from Houston and self-proclaimed tea party activist who was at the Capitol on Tuesday urging more treatment and rehabilitation programs and less imprisonment.

"Use prison only for the worst, most violent offenders, not everyone who violates any little law."

I'm not sure most folks would associate this issue with tea party activists, but it goes to show the extent to which the subject crosses party and ideological lines. Another remarkable quote comes from a victims' rights advocate:

"If they want to get rid of the dopers, OK. The drunks, hot check artists, the thieves, OK," said William "Rusty" Hubbarth , an Austin lawyer who is a vice president for Justice for All, a Houston-based crime victims group.

"But they should keep all the sex offenders and the 3G (violent) offenders right where they are. They don't need to go anywhere."

Of course, Grits would prefer the Lege consider even bolder options for reducing the inmate population. But I find it telling that even traditional "tuff-on-crime" types recognize that continuing to lock up low-level offenders isn't a viable financial option. If the tea party folks and victim rights advocates can wrap their heads  around that concept, maybe it's not completely beyond the pale to hope that, before the 82nd session is complete, a majority of Texas legislators will be able to do so, too.

Juvenile Justice Roundup

Here are a few juvenile justice stories which caught my eye recently that may interest Grits readers:

Ex-TYC Auditor: Lack of policy allowed abuse
A Lubbock TV station has this interview with a former TYC auditor who discusses how cases like that of John Paul Hernandez, the former TYC administrator currently on trial in Lubbock for sex abuse, might have been prevented if, in the 1990s, the agency had followed recommendations to enact a policy regarding staff being alone with students behind closed doors.

Half of TYC facilities now accredited
After facilities in Gainesville and Mart recently passed muster, now five of TYC's ten secure facilities have been accredited by the American Correctional Association. They may be more than halfway to the finish line, however, since proposed budget cuts would spur closure of three secure TYC facilities.

JJAEP not used for 'persistent misbehavior' in Wichita Falls
Here's a story from Wichita Falls about their Juvenile Justice Alternative Education program, which included this notable tidbit: "Unlike many other JJAEPs in Texas, students who have been expelled for persistent misbehavior but are not on probation cannot attend the program in Wichita County." The local juvie probation director told the paper, "We only accept probation kids because we have the philosophy that we do not want to mix nondelinquents with delinquents." Good on them. IMO that's exactly the right approach for such programs, which are much-oversubscribed across the state. Creating further disincentive not to overuse JJAEPs, both the House and Senate proposed budgets for the next biennium would cut JJAEP funding from $79 to $59 per student per day.

Feds may alter juvie grants
Youth Today has an update on the Obama Administration's juvenile justice budget proposals, particularly regarding federal "Title II Formula Grants."  The administration has suggested eliminating "Juvenile Accountability Block Grants," rolling the money into Title II funding. In 2009, Texas received $5.1 million from this revenue stream, according to this report (pdf) from USDOJ. MORE: Via Sentencing Law and Policy, "the Crime Report has this effective entry, based on this official document, reviewing the criminal justice cuts in the proposed budget released today by President Obama's administration."

UPDATE/CORRECTION: The original version of this post referenced an article quoting a juvenile probation director commenting on the proposed TYC-TJPC merger, but he emailed me to say the article did "not represent me or my position on the issue accurately," so the reference has been removed.

Draft budgets reduce prison healthcare reimbursements to match Medicaid rates

In the wake of a recent audit alleging that the University of Texas Medical Branch overcharged for prison health services, I was interested to note that both the House and Senate budgets would university medical providers to get written permission from LBB to charge TDCJ more for services than would be allowable under Medicaid.

Rider 58 in the proposed Senate budget (large pdf, p. 599) declares that TDCJ "shall not pay rates to health care providers for hospital services provided to offenders in its custody that exceed the rates that would be paid for same services according to the Medicaid reimbursement methodology adopted by the Health and Human Services Commission in Texas Administrative Code, Chapter 355."

Presently, said the state auditor, "the UTMB-CMC Division's reimbursement amount for physician billing services is, on average, 135 percent of the Medicare reimbursement amount. Additionally, UTMB-CMC Division reimbursement amounts exceeded standard Medicare reimbursement amounts for each type of hospital service, including inpatient and outpatient services." Medicaid rates are even lower than Medicare, so if they were charging 135% of Medicare rates, UTMB billings are about to take a serious haircut.

Further, the bill creates a rather elaborate process for exceptions in order to charge more than Medicaid would pay:

In order to pay a rate that exceeds the rate that would be paid for same services according to the Medicaid reimbursement methodology ... the Department of Criminal Justice must receive prior written approval from the Legislative Budget Board. To request authorization to increase a rate, the Executive Director of the Department of Criminal Justice shall submit a written request to the Health and Human Services Commission and the Legislative Budget Board. The Health and Human Services Commission shall determine if the requested rate is reasonable and shall notify the Legislative Budget Board in writing of its finding. The Legislative Budget Board may consider the Health and Human Services Commission's finding in determining whether to approve the requested rate. The request shall include, but is not limited to, the previous rate; the requested rate; the reason for the request to exceed the previous rate; and the estimated fiscal impact of the increased rate. The request shall not be submitted for approval if such approval would cause expenditures to exceed appropriations.

Given that, it's almost certain that exceptions for higher rates would be few and far between, and even if individual rates are increased, the total aggregate amount providers can receive is capped at appropriated levels.

UTMB has complained for years that the state pays them too little for the healthcare they provide at Texas prisons, even threatening (read: bluffing) to cancel their contract if the state didn't fork over more money. But given the audit and draft budgets released recently, clearly the tables have now turned. Not only won't they get more money, prison healthcare now faces a whopping 24% aggregate budget cut, and there's nothing in this budget (nor that I've heard from anyone else) that makes me think anyone at the Lege plans to let UTMB out of this shotgun marriage anytime soon.

Lege briefing: 'Thinking Outside the Cell'

Yesterday, the Texas Public Policy Foundation (TPPF) and the Texas Criminal Justice Coalition presented a briefing to roughly 120 legislative staffers and other notables on policy and budget issues related to adult corrections in 2011 legislative session. Regrettably, I couldn't attend, but the Right on Crime blog posted an audio file of the event, and informative presentations from both Marc Levin and Ana Correa have been posted online.

Innocence roundup

Here are several innocence-related stories I don't have time to discuss this a.m., but which merit Grits readers attention:

No compensation for Anthony Graves
The Comptroller refused compensation to Anthony Graves, who was exonerated 16 years after a capital murder conviction, because his case was overturned on direct appeal instead of through a habeas corpus writ based on actual innocence claims. The Comptroller's decision stems in part from the unique circumstances of the case: Most exonerations occur post-conviction,  but because this was a death penalty case the feds reviewed it on direct appeal. The 5th Circuit overturned Graves' conviction and special prosecutor Kelly Siegler declined to re-indict, declaring there was no evidence pointing to his guilt aside from testimony tainted by prosecutorial misconduct. As a result, there's no court ruling or pardon affirming "innocence," or at least that's the excuse the Comptroller gave for refusing to pay. (UPDATE: See a Houston Chronicle editorial decrying the Comptroller's decision and more detail from the Chron's Harvey Rice on the basis for denying Graves' claim.)

Texas DNA testing case at SCOTUS
The US Supreme Court will soon decide a Texas case (Hank Skinner) which may determine when federal law requires DNA testing in the fact of post-conviction innocence claims. The Washington Post this week published an in-depth preview. Texas has one of the stronger DNA testing statutes in the country, but access to testing still varies based on prosecutorial discretion. The evidence wasn't tested because the DA in Gray County fought it tooth and nail, even though the defense offered to pay for it. If Skinner's case had come out of Dallas, notes the Post, the evidence would likely have been tested long ago and the controversy put behind us. The lesson from Texas' decade-old DNA testing statute: When biological evidence exists in old cases and could be probative, there's really no downside to just testing it to find out the truth one way or the other.

Waiting game
Prosecutors and a district judge in Dallas already agreed Richard Miles was innocent of the 1994 murder for which he was convicted, a ruling which allowed him to be released on bail while the Court of Criminal Appeals considers his habeas corpus writ. That was in October 2009, though, and the Dallas News reports Miles is still waiting on final word in his case from the state's highest criminal court.

'Budget crunch forces a new approach to prisons'

The title of this post is the headline to a notable NPR story today about the metamorphosis of debates over incarceration in light of state and federal budget shortfalls. Even so, the Obama Administration has requested a 10% budget hike for federal prisons. By contrast, states like Texas, which can't borrow to pay for its day-to-day bills, don't have the luxury of continuing to increase prison spending when the budget is bleeding red ink.

Damning testimony at TYC sex abuse trial

Given what's been coming out in the John Paul Hernandez trial, I'm fairly shocked that the former Texas Youth Commission administrator didn't take a plea regarding the sex-abuse allegations against him. (See here, here, and here.) Perhaps he was overconfident that the local District Attorney and judge in Ward County where the offenses were committed would protect him, and indeed they did for many years (as is fairly common, sadly, though after TYC's 2009 Sunset bill, going forward, crimes by TYC staff can be prosecuted in Travis County if locals won't pursue them). Hernandez's case ultimately had to be moved to Hub City to get a trial date set.

Two Lubbockites who've attended parts of the trial both told me they were horrified at what they heard: One told me he was "disgusted," the other said he wanted to take a shower when he left. Though the delays have been unconscionable, I'm glad we're seeing the denouement of this sordid tale, a dark cloud which has hung over the agency for the past four years. Though this trial will finish the off legal aspects, the policy ramifications for the agency from this scandal are still reverberating, up to and including a recent recommendation by the Sunset Commission to abolish TYC and merge youth prisons with the Juvenile Probation Commission.

Jail deaths implicate state oversight, competency restoration funding

Having referenced recent media coverage of an untimely in-custody death in Longview of a woman jailed for traffic tickets, I should mention several notable stories about jail deaths out of Dallas, Houston and Corpus Christi. In Dallas, a homeless man died after he:

became increasingly sick behind bars and was mostly cared for by inmates, according to a Sheriff's Department investigation.

The inmates said they called officers for help as Morris' condition worsened but that no one came. Minutes before Morris was found not breathing, two jail guards walked by and saw him lying on the concrete floor but took no action, sheriff's reports show.

One of the officers who walked past him on the floor, reported Kevin Krause of the Dallas News, told investigators, "We decided not to wake him, as lying on the floor must have felt good to him, as the concrete was cool." But the problem appears to be a failure in healthcare delivery, not one bad decision by two jail guards: "A report from [federal] monitors' April visit said staff in the infirmary was 'not responding to patients in a manner consistent with an inpatient setting.'" 

The man's family has filed a wrongful death suit.

Meanwhile, the Houston Chronicle has a remarkable story by Peggy O'Hare detailing the final hours of a parolee arrested for burglary who police say died of cardiac arrest, but who appeared to have received a beating while in police custody. Mental health workers had seen the man earlier in custody with no apparent injuries, but after his "cardiac arrest" when family members saw him in the hospital, he was:

unresponsive in a hospital bed, wearing a neck brace and hooked up to a breathing machine. The side of his head was swollen, his chin displayed a bad gash and severe, gaping lacerations surrounded his wrists where the handcuffs had been, said his sister, Tamara Cathey, 35, of Houston. He had bruises on his legs where restraints had been applied after his arrest, she said.

She said her brother had a strange raspberry-colored mark on his chest, which his family suspects might have been caused by a Taser.

Police told Cathey's family he suffered cardiac arrest as they tried to book him into the Harris County Jail, but Cathey's visible injuries left his family wondering why his heart stopped. He never woke up. Two days later — exactly one month to the day after his release from prison - Cathey's family decided to disconnect his life support.

Police reports by the arresting officers do not explain the injuries. "The family's lawyer, John T. Floyd, is not ready to say if foul play was involved in the parolee's death. But he believes the case warrants close examination."

Finally, a jail death in Nueces County appears to have resulted from untreated meningitis; the deceased inmate had been declared incompetent to stand trial and was in jail awaiting competency restoration. The inmate had refused medical treatment, reports KIII-TV, but a commenter posed an excellent question with many implications for local jails:  "How can someone who is deemed mentally incompetent be allowed to refuse treatment?!" If an inmate is declared incompetent to plead "guilty," should they really be considered competent to dictate their medical care while in custody? This is an issue that will continue to vex Texas jails as long as there are waiting lists for competency restoration services.

The death in Corpus Christi may raise additional questions about conditions and treatment of prisoners at the Nueces County Jail. Brandi Grissom at the Texas Tribune had reported last year that:

According to [Texas Commission on Jail Standards] records, the jail has failed about 40 percent of its inspections over the last five years. Since September 2009, there have been five deaths at the jail — the same number of deaths that occurred in the same period of time at the Dallas County Jail, which houses eight times more people. The commission issued six noncompliance notices to [Sheriff] Kaelin from September 2009 to April 2010. The most recent failure notice cited three violations, including jailers failing to notify the commission of an inmate death within 24 hours and jail officials not completing mental health and suicide screening forms.

These stories have additional implications for the state budget being debated in Austin. The Commission on Jail Standards already has little ability to evaluate jail health matters, but instead of beefing up its capacity, the agency faces significant cuts. Meanwhile, the proposed House and Senate budgets would both cut inpatient mental hospital funding at a time when jails face waiting lists to get competency restoration for defendants like the fellow in Nueces County.

Jails are the single biggest expense of county government, and arguably their biggest source of liability. Given these incidents (and others like them), surely it'd be unwise at this juncture for the state to scale back county jail oversight or reduce the number of "forensic" state hospital beds available for competency restoration. When it comes to deaths in custody, an ounce of prevention is worth a pound of cure.

UPDATE/RELATED: This morning I noticed legislation by Rep. Jose Menendez, HB 748, which among other things would require mandatory dismissal of cases where misdemeanor defendants wait in jail longer for competency restoration than the law would allow them to be sentenced if they'd been convicted. Good bill.

Investigating neglect in Lonview death of mother jailed for traffic warrants, denied seizure medication

Brandi Grissom has a feature at the Texas Tribune on the disturbing number of recent inmates deaths at the Gregg County Jail in Longview - nine since 2005 in the smallish East Texas county - focusing particularly on the most recent instance, where a young mother locked up for traffic warrants died after her seizure medication was denied to her. The Texas Civil Rights Project recently complained that poor healthcare in Texas prisons constituted a "secret death penalty," and whether that provocative accusation is justified, certainly in this case it's easy to argue poor jail healthcare turned into a death penalty for Amy Lynn Cowling. And she's not the only one.

Rather than excerpt and comment, those interested should go read the whole thing. Well done, Brandi, and as an aside this is the type of journalism I hoped we'd see from the Tribune when it launched with such deep pockets and its admittedly impressive cadre of writers - not just reporting the same stuff everybody else does from the capital but regional investigative features that folks like me with no resources can't do from Austin, and which local reporters don't have either skills, resources or often editorial backing to perform.

That said, I should add that the Longview News Journal arguably is the best small-town paper in the state (an accolade I don't grant them lightly), and their coverage of this topic has been very good, see:

• Deadly lockup: Young mother's death should prompt review of jail procedures
• Family: Woman who died in lockup got death sentence for speeding 
• Inmate death spurs broader jail probe
• Dead inmate's medical records in 'legal limbo'
• Woman dies in Gregg County jail, family says medication was denied
• Inmate who died was unresponsive after seizures, jailer says
• Second Gregg jailer charged in connection with inmate death
• Jailer charged in inmate's death, four others fired as investigation continues
• Gregg county jailer arrested in connection with inmate's death
• Inmates not guaranteed own prescription medications 
• Inmate's meds weren't on the approved list
• Gregg County jail back in compliance but Upshur County jail isn't
• Woman found dead in Gregg County jail, sheriff and Texas Rangers investigating
• Jails across Texas routinely found noncompliant

This tragic story has benefited from some excellent journalism, which is unusual when such things happen to say the least. So I don't have much to add on the subject - go read what the reporters who actually researched the topic have to say.

Norquist on 'Conservative Principles and Prison'

Anti-tax activist Grover Norquist, writing in yesterday's National Review Online, argues that "the 'lock ’em up and throw away the key' mentality forces conservatives to ignore [their] fundamental principles," encouraging reduced incarceration rates and citing Texas' recent example:

Consider Texas, a state legendary for being “tough on crime.” When the Lone Star State’s incarceration rates were cut by 8 percent, the crime rate actually dropped by 6 percent. Texas did not simply release the prisoners, however. Instead, it placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities. Moreover, it linked the funding of the supervision programs to their ability to reduce the number of probationers who returned to prison. These strategies saved Texas $2 billion on prison construction. Does this mean Texas has gotten “soft on crime”? Certainly not. The Texas crime rate has actually dropped to its lowest level since 1973.

The lesson from Texas is that conservatives can push reforms that both keep Americans safe and save money, but only if we return to conservative principles of local control, performance-based funding, and free-market innovation.

The article closes:

Conservative principles don’t have to change to make the criminal-justice system successful, but the stance conservative leaders take must. There is no reason that conservatives should be tied to the “lock ’em up and throw away the key” strategy; rather, we must stand for the very principles of limited government, federal accountability, and reduced spending that our forefathers effectively deployed. I ask my fellow conservative leaders to reconsider the “tough on crime” approach so that we can cost-effectively increase public safety.

Good stuff. Read the whole thing. Mr. Norquist strikes me as a man who is prepared to believe impossible things.

The Jail that Ate Tyler, and other stories

Just a few items for y'all this morning while I'm focused elsewhwere:

House crimjust committee assignments boring but significant
First, I should belatedly mention that Texas House committee chairs on criminal justice yielded no surprises but set the stage for a session where reform bills will have a serious chance of passage in the lower chamber. Congratulations to Jerry Madden, who resumes his former leadership role as Chair of Corrections, Pete Gallego, who remains Chairman of Criminal Jurisprudence (though presiding over a committee with a lot of new faces), and Sid Miller, who replaces Joe Driver as head of what's now the Homeland Security and Public Safety Committee. Madden has been central to Texas' recent probation reforms and his appointment by the Speaker appears to endorse his approach, which has received national acclaim. Further, Todd Hunter, who chairs the Calendars Committee (which decides what legislation will be voted on, when, on the House floor), will also sit on Corrections, signaling that bills coming out of that committee have an excellent chance of getting a House floor vote. Criminal Jurisprudence Chairman Pete Gallego is sponsor of a slew of innocence legislation - requiring eyewitness ID procedures at police departments, recording interrogations, writ reform - and this appointment puts him in a good position to get those bills out of committee. Pretty much good news all around, or at least, as my father likes to say, it's better than a sharp stick in the eye.

Brain science and the law
Check out the Law and Bioscience Daily Digest, which summarizes legal opinions "in which cognitive neuroscience or behavioral genetics evidence has been introduced."

Prison blogging
The blog Texas Prison Bidness has several posts up that may interest Grits readers, as does The Back Gate.

The Jail that Ate Tyler
Officials in my home county really, REALLY want an expanded jail. They're about to put jail expansion on the ballot in Smith County for the fourth time since 2006, and judging from news coverage the voters still don't want it. During the last, failed plebiscite, a local PAC opposing the jail ran radio ads featuring snippets from Lorrie Morgan's country classic, "What part of 'no' don't you understand?" The chorus to that song rings in my head upon reading this news. There's a lot more local officials could do to reduce the jail population, recited many times on this blog and by Judge Cynthia Kent (now retired) who helped lead the charge opposing the last three jail-bond proposals. If they'd tried those other strategies and failed, voters would probably support jail expansion. But when Build! Build! Build! is the only option presented, after it's been rejected over and over, one suspects voters may start to seriously resent it.

Tax my online purchases, please
Off topic, but I'm unusually vexed by Amazon.com's decision to pull its physical plant out of Texas to avoid charging sales tax on purchases by Texas residents. I'm a bit of an agoraphobe, despise malls and shopping centers, and enjoy the convenience of online shopping, including at Amazon. But I don't want that convenience to then gut the state's tax base, and I don't mind paying consumption taxes on online purchases, given that Texas has no income tax and the sales tax is our biggest source of revenue. I like that online shopping is cheap, but to the extent that means the state must close neighborhood schools, eliminate financial aid for college, etc., because online sales aren't taxed like those on Main Street, that makes me want to check my use. Amazon owes the state $269 million, or about 1% of Texas current budget shortfall. Apparently under Texas law they can avoid applying the tax by moving their physical plant out of state, but that doesn't seem right to me. To be fair to local retailers, online purchasers should pay the applicable sales tax in whatever jurisdiction they're making the purchase. If Amazon can recommend stuff to me based on purchase patterns from 7 years ago, they can take my address from the credit card form and figure out how much tax to apply.

Roundup of recent Grits posts you might have missed
Finally, since not everybody checks in at Grits daily, while I'm focused elsewhere on stuff for which people are actually paying me, I thought I'd round up some notable Grits' posts published since the beginning of the year covering subjects or angles on stories you probably haven't seen elsewhere:

• 'Six Impossible Things': Do you believe in a conservative, rational and smaller corrections budget?
• Responding to unanswered questions on Rodney Ellis' innocence legislation: "How much of an innocence problem do we really have in this state?"
• Technical revocations still awfully high after much-vaunted probation reforms
• Governor endorses radical cuts to prison agency
• Corrections budget cuts concentrated in community supervision, set TDCJ up to fail 
• Adios to Texas State Law Library? Legal collections statewide feeling budget pinch 
• TDCJ reduced spending on prisoner food 13.5% since 2009 
• Budget cuts would separate church from state (prisons): Chaplains on the chopping block
• House, Senate budgets set up false debate on corrections priorities
• Pub ed going well on surcharge amnesty, but probationers need to be notified
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• DPS announces rollout of amnesty, indigence programs for Driver Responsibility surcharge
• Dozens of new crimes proposed at the Lege: Will LBB man up and assign them fiscal notes?
• Delay, delay, it's the word of the day: Bradley proffers excuses to put off investigating forensic errors
• Victim recantation spurs possible East Texas innocence claim
• Bill requiring eyewitness ID policies a good first step, but remedy still needed for noncompliance
• Justice solutions proffered at TPPF orientation
• Security theater vs. crime fighting reality during an era of tight budgets
• Experts: Willingham investigation negligent even by 1991 standards
• 'Putting iPhones behind bars"
• Pretrial detention for misdemeanors contributes to Bexar jail costs
• Rise in officer traffic deaths points to need to limit high-speed chases
• Senate Criminal Justice Committee: Highlights from interim recommendations
• Top Texas Criminal Justice Stories of 2010

LBB lays out recidivism study, adult and juvie corrections population, cost projections

I turned on the House Appropriations Committee hearing first thing this morning to listen to exceedingly brief presentations from the Legislative Budget Board and TDCJ chief Brad Livingston about the prison system. LBB presented the committee with several important new reports, including updated adult and juvenile inmate cost and population projections and three-year recidivism rates. Here they are:

• Adult and Juvenile Correctional Population Projections: 2011-2016
• Statewide Criminal Justice Recidivism and Revocation Rates
• Criminal Justice Uniform Cost Report: 2008-2010

Since both adult and juvenile systems (especially juvenile) saw major reforms in 2007, Rep. Warren Chisum wanted more recent, post reform recidivism data, complaining that the report linked above only included offenders released in FY 2006 and 2007. That, of course, is because they calculate a three-year recidivism rate, so the number can't be produced until three years after the release of any particular "cohort" of offenders (their word). Thus data on post-reform recidivism rates won't be available until the next report in 2013. Chisum said he'd "get it from somebody else," but he doesn't understand. Unless he's planning to consult someone with Tarot cards or a crystal ball, nobody can tell him the three-year recidivism rate including offenses in the future that haven't yet occurred. Sans magic wand, LBB and everybody else must wait until three years out to calculate a three-year recidivism rate. TYC does produce an "annual" recidivism report, a staffer later recalled, but frankly that doesn't tell you as much.

Rep. Sylvester Turner would (and did) say the same about LBB's adult population projections because they don't take into account cuts to probation, parole and diversion programs in HB 1. Thus, projections of a slight rise in inmate numbers over the next few years "don't do anything for me," he blithely declared. Whatever his opinion, emphasized data team manager Michelle Connolly, this is the projection the agency will use as a baseline for fiscal notes, budget estimates, etc., based on status quo pre-session laws and practices. Whatever HB 1 (or other options) might do to the budget, she said, are separate calculations and LBB has already been asked to undertake that task.

Turner insisted legislators must "dismiss" LBB projections until they see estimates based on HB 1, and I get what he means: The prison population will go much higher if community supervision funds are cut. But that's what fiscal notes are designed to tell them, these are projections updated every six months which can only base estimates on laws in place at the time. And as a practical matter, they're important because they're the basis for how LBB makes all sorts of other calculations.

Speaking of which, no one brought up the question of fiscal notes, but given these projections - prisons full with demand rising slightly, but much higher if diversion programs are cut - to me a critical question facing LBB is whether criminal penalty enhancements will begin to receive positive fiscal notes. More than 11% of Texas' prison capacity is made up of private prisons, so we pay for every single extra bed. Since beds are fungible across the system, the marginal extra cost of each additional prisoner is not "insignificant," as LBB has always claimed in the past, but equal to the last private bed leased by the agency, which according to the Uniform Cost Report averages $37.47 per day (excluding transportation and offender classification expenses, p. 3). There's no excuse for new felony crimes or felony enhancements to continue to receive fiscal notes calling their cost "insignificant." It's just not true that incarcerating more people is free and LBB's projections in the past in this regard have been more aimed at facilitating political theater - allowing legislators to pass as many enhancements as they want without paying for them in the budget - than giving accurate estimates of what penalty-increase bills cost. That should change.

Beyond that, LBB's projections confirm my sense, expressed in this post the other day, "that the 2007 probation reforms, while a great start, are starting to hit a wall regarding the limits of their effect on the prison population." The question is whether the Lege will double down on investments in strong probation or gut them to keep more prisons open. It's about time they began seriously discussing policy changes that will significantly reduce the inmate population, or else local decisions by prosecutors, judges and juries will trump cuts made on paper by the state: When inmates show up, TDCJ must find somewhere to put them.

There was some talk about how cuts in other parts of the budget might affect the prison population. Livingston said 40-45,000 inmates have serious mental health diagnoses. Cuts to mental health funding - and in the long-term, higher dropout rates in schools (he adduced in response to questioning from Rep. Scott Hochberg) - will likely increase the prison population down the line, Livingston said.

Prison healthcare issues were discussed briefly, with Livingston pointing in particular to rising costs for treating just under 13,000 offenders who are age 55 and above. There was loose talk, nothing too specific, of making medical parole easier for incapacitated or terminally ill inmates, but there's a lot of cost savings to be had from that strategy. In California recently, a federal receiver told state legislators, "You let me unload 1,500 inmates [with high medical expenses], and I'll give you a 30% drop in costs."

On the question of continuing UTMB-Galveston's contract with TDCJ to provide medical services, a move endorsed this week by the Governor in his suggested budget, Livingston said ultimately it's the Legislature's decision whether UTMB provides prison healthcare as part of its "statutory responsibilities." That conforms to everything I've read and heard: UTMB can't unilaterally back out of this shotgun marriage, and I doubt the Lege will let them after the recent state auditor's report, which will almost certainly spur the Lege to reduce their reimbursement rates.

One option for savings LBB suggested will piss off county sheriffs: Waiting longer to pick up paper-ready prisoners from county jails. Currently average time in county is 28 days before heading to TDCJ after an inmate is paper ready, says LBB. Lengthening that average time could save millions at counties' expense while still coming in under the 45 day statutory maximum, after which the state must pay counties. That suggestion was tantamount to whacking a hornet's nest with a stick: So-called "blue warrants" Delays in picking up "paper ready" inmates are a perennial sore spot for county officials complaining of "unfunded mandates." I bet the good folks at the Sheriffs Association and the Texas Association of Counties leaped out of their seats and were on the phones complaining about the idea before the LBB staff left the witness table.

UPDATE: Robert Garrett at the Dallas News has more from the hearing, focusing on detail not included above on the medical parole debate: