Slow but steady progress toward improving eyewitness identification

In the wake of a landmark decision from the New Jersey Supreme Court mandating blind, sequential police lineups in that state ("blind" meaning the lineup administrator doesn't know who is the suspect, "sequential" meaning photos are shown one at a time rather than in a group), a new study adds to the growing body of evidence that police eyewitness identification procedures need reform. Via AP:

A new study says those lineups you see on television crime dramas and often used in real-life police departments are going about it all wrong.

The study released Monday by the American Judicature Society is part of a growing body of research during the past 35 years that questions the reliability of eyewitness identifications under certain circumstances. That research has been taken more seriously in recent years with the evolution of DNA evidence clearing innocents of crimes they were convicted of committing, often based on eyewitness testimony.

The new study finds witnesses should not look at a group of people at once to pick a perpetrator. Instead, they should look at individuals one-by-one with a detective who doesn't know which is the real suspect — known as a double-blind lineup to avoid giving witnesses unintentional cues — preferably on a computer to ensure appropriate random procedures are used and to record the data.

The study found witnesses using the sequential method were less likely to pick the innocents brought in to fill out the lineup. The theory is that witnesses using the sequential lineup will compare each person to the perpetrator in their memory, instead of comparing them to one another side-by-side to see which most resembles the criminal.

"What we want the witness to do is don't decide who looks most like the perpetrator, but decide whether the perpetrator is there or not," said Gary Wells, an eyewitness identification expert at Iowa State University and the project's lead researcher.

You can view a copy of the study here (pdf) and listen to audio of a press conference releasing the study results here (5mb wav file). The sequential method in particular significantly improved accuracy. In the study, "fillers" (i.e., non-suspects) were wrongly identified 12% of the time in sequential lineups compared to 18% in photo arrays presented as a group, according to press accounts. Austin PD was one of four departments participating in the inquiry.

Texas law enforcement agencies will soon have an opportunity to implement this advice. (Dallas PD was an early adopter of the improved methods.) This year the legislature finally passed a statute which will eventually lead to all Lone Star law enforcement agencies developing policies for eyewitness identifications. (A whopping 88% have no written policy, found a 2008 study.) The new law ordered the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy that departments could (but don't have to) follow, and LEMIT has convened a working group this Friday in Huntsville to give input to the academics charged with developing it. That model policy must be completed by the end of the year, then departments have until Sept. 1, 2012 to adopt their own.

(In the interest of full disclsure, I lobbied for the new statute on behalf of the Innocence Project of Texas as part of my day job, and will be participating in the LEMIT working group on Friday.)

In the New Jersey Supreme Court ruling, reported the New York Times:

the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.

“No court has ever taken this topic this seriously or put in this kind of effort,” said Gary L. Wells, a professor of psychology at Iowa State University who is an expert on witness identification and has written extensively on the topic. 

The notable flaw in Texas' statute is precisely that the Legislature failed to enact "consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications." If departments don't follow their own, written policies, defense lawyers can raise the issue in court but there's no pretrial hearing required, tainted evidence would not be excluded (Governor Perry's folks had said the bill would be vetoed if the exclusionary rule applied), and thanks to (IMO bizarre) opposition by the criminal defense bar, there isn't even a jury instruction if the cops don't follow their own rules.

Even so, Texas' new statute should improve the process in most cases once local departments have adopted written policies. Police won't want to be embarrassed in court or the media for not following their own procedures, and simply training on improved practices and putting the policies in writing should cause most officers to (eventually) acquiesce and embrace the new approach. If departments do routinely flout lineup policies, there's always the option of going back to the Lege down the line to create a remedy for violations.

Bexar jail personnel problems glaring

Lots of problems cropping up at the Bexar County Jail recently related to personnel issues:

Last week, "A Bexar County detention officer was arrested when he was caught trying to smuggle what he believed to be drugs into the county jail," while another was "charged with violating the civil rights of a person in custody, accused of sexual contact with a female inmate. Trials this summer saw convictions of a jailer who smuggled a hacksaw blade to an inmate in a taco, and another jailer who smuggled a cell phone into the jail in a box of ramen noodles.

Then there's the matter of sufficiently staffing the jail, which presently is sending prisoners to other counties despite having hundreds of empty beds because staff aren't available to guard the extra wings. County commissioners say it's fully staffed, as Commissioner Tommy Adkisson wrote in a recent op ed:

our jail, typically packed with inmates, has for most of this year been able to produce 600-700 empty cells. Recently, inmates were sent to one of the surrounding county's jail, creating a stir and questions about how that could be when we have surplus space in our jail.

Though staffed for a capacity of 4,600 inmates, we apparently were not able to guard 3,800 inmates with such staffing. Since every 400 inmates cost Bexar County $8 million, Commissioner's Court, the primary guardian of the tax rate, must scrutinize this and allow our sheriff to help us understand how this can be.

Indeed! Adkisson has long been one of the few commissioners in the state who understood so intuitively the relationship between high incarceration rates and high taxes, or at least he's one of the only ones willing to discuss it publicly. It should be said, though, that not everybody agrees with him that the jail is staffed for full capacity. A Bexar deputy recently told Grits that they'd been understaffed for years, only covering shifts with mandatory overtime, and that eliminating so many slots in the most recent county budget would only exacerbate problems. That assessment simply doesn't jibe with comments by Adkisson and other commissioners that the jail has more staff than it needs. Hard to judge who's right without more information, but the fact that commissioners included significant overtime in the budget for jailers tells me even they realize they don't have enough deputies to cover shifts with the staff they've presently got.

Shortcomings in the county's handling of suicidal inmates may also relate to shortstaffing, with notable failures in screening inmates and few services available to suicidal inmates, resulting in one of the highest suicide rates among jails nationally.

Managing jails is a messy business because of the "too many cooks" phenomenon. The Sheriff manages the jail but county commissioners control the budget. Meanwhile police, prosecutors and judges  make most of the decisions that determine how many people end up in jail at any given time, with no reference at all to budgetary constraints. Add in the bureaucracy at the local probation department, the deputies union, and other various actors and the result is a hodge podge of competing interests and agendas. That's not just in Bexar, that's the structure in every Texas county and in most other states as well. The biggest questions surrounding jail managemet are as much political as managerial. It's hard to solve such quandaries when the various actors can't even agree on what the problems are.

Short-term grants create artificial demand for prosecutor, law-enforcement slots

This blog has been critical of federal COPS grants that encourage law enforcement to hire extra police officers by paying their salaries the first three years, expecting locals to pick up the tab after that. The program encourages departments to overspend on staff that their tax base can't afford in the long term, artificially boosting budgets and forcing tax hikes if the positions are kept on. Even so, given police union pressure and the fear of being called "soft on crime" those slots are usually retained, with taxes commensurately raised to foot the bill. With tax revenues dramatically down, though, and local governments facing a tight budget squeeze, such reflexive acquiescence to grant-driven policy incentives is no longer automatic.

Dallas County is facing a similar dilemma over grants used to fund extra family violence prosecutors, which run out this budget cycle. Reports KERA-TV:

The Family Violence Unit in the Dallas County District Attorney's office could take a hit when County Commissioners approve a new budget tomorrow. KERA's BJ Austin says state grant money is running out, and the county can't pick up the cost.

In the Family Violence Intake Unit of the D-A's office an assistant district attorney works with police, files felony domestic violence cases, and presents them to the grand jury. An investigator does that in misdemeanor family violence courts, and a legal secretary helps family violence victims get protective orders and otherwise navigate the legal system.

Officials with the District Attorney say the loss of these three jobs will make prosecution of domestic violence cases much slower. Brandy Smith, with the Brighter Tomorrow's shelter in Grand Prairie says that would not be good for victims.

Smith: When things take too long, they lose their nerve. They sometimes might not follow through. ...

County Commissioner Mike Cantrell says 100 million dollars in state and federal grant money for many county jobs is running out. And there's no way the county can afford to keep those positions. ...

Cantrell suggests the District Attorney look at his Hot Check Fund or Forfeiture Fund to see if he can find money to save the Family Violence jobs.

Such grants skew local budgeting decisions while discouraging using discretionary money - like the hot check and forfeiture funds - to fulfill local needs. Budget crises have a way of clarifying priorities: If Dallas County wants more prosecutors than it's budgeted, commissioners must pay for them. If they choose to prioritize spending in other areas, like fixing problems at the jail, repairing roads, public health, etc., such decisions are the essence of what budgetmaking is all about. Naturally every politician would like to be all things to all people, but taxation is the main, limiting factor. These grants allowed politicians to avoid those limits, temporarily, but eventually local taxpayers must pony up, or else hard decisions must be made.

Surprise to no one: Drug smuggling increased after border wall built

Drug smuggling in the Rio Grande Valley increased after the much-touted border wall went up in the area, a Sheriff's lieutenant told a community meeting yesterday. Reported the McAllen Monitor ("Impact of border wall discussed at meeting," Sept. 18):

Drug trafficking from Mexico into Cameron County has increased, not decreased, since the border fence was built, a sheriff’s lieutenant said Saturday at a public meeting.

It was one of many points discussed at the “Border Wall Impact” meeting hosted by State Senator Eddie Lucio Jr. at the Fort Brown Memorial Golf Course. The event brought together legislators, city representatives, state and county law enforcement and private citizens to air concerns about the fence.

“Is the fence keeping drugs from coming in? No,” Lieutenant Rick Perez said responding to a question. “We have more drugs now than before.”

Perez is part of the special investigations unit of the Cameron County Sheriff’s Department.

This outcome was as predictable as the sunrise. Law enforcement has known for years that most drug trafficking happens at the legal checkpoints, not in between them. Even in between the checkpoints, the wall can be easily defeated with tactics ranging from flying ultralight aircraft to drop drugs on the other side to flinging drugs with large catapults to waiting accomplices on the US side. Anyway, show me a 20 foot wall and I'll show you a 21 foot ladder.

This was never more than symbolism, and even Governor Rick Perry can see a border wall adds little to border security. But state Rep. Rene Oliveira told the audience, “The wall is here whether we like it or not ... I don’t think anybody is going to tear it down. The political will is clearly nonexistent for that.” For my part, I wouldn't be so pessimistic. There were many years when one could easily say there was "no political will" to bring down the Berlin Wall, but eventually the wall fell. Who knows, maybe if Rick Perry is elected president, he'll go to Congress and demand, echoing Ronald Reagan, that they "tear down this wall."

Holy junk science, BAT van! Houston's portable breathalyzers accuracy questioned

From typical discussions of forensic errors in DNA exonerations, etc., you might think they occur mainly in the most serious crimes like rape, murder, etc., but law enforcement's use of flawed science may extend to more workaday crimes like DWI as well. Reported the Houston Chronicle recently ("Controversy continues to dog BAT vans," Sept. 8):

A driving while intoxicated case that sparked doubts on the accuracy of test results from the Houston Police Department's breath alcohol testing vans has been dismissed, while evidence from the vans in at least two other cases has also come into question.

A former HPD crime lab supervisor testified during a court hearing in July that she quit because she could not trust the accuracy and integrity of breath alcohol tests from the department's breath testing vehicles. Since then at least two other defense attorneys ...  say evidence in DWI cases they are handling could have been compromised because of the problems with the vehicles.

During the testimony in July, the former HPD lab supervisor, Amanda Culbertson, said the breath alcohol testing vehicles, also known as BAT vans, incurred such electrical problems as overheating. Those problems affect gauges, she said, and can alter the control sample used to calibrate the breath-test machine in the vans, possibly affecting the accuracy of test results.

HPD officials have acknowledged there have been problems, including air conditioning, in the BAT vans since they were purchased in 2008, but said that no cases should be compromised as a result of the temperature in the BAT vans.

But defense attorney Mark Thiessen said he does not believe that the breath testing machines were working properly in the BAT vans and that the tests were not run under proper protocols.

Paul Kennedy had an excellent post in August explaining how changes in temperature can affect such tests if the comparison sample isn't just right. Notably, the company that makes the breathalyzer won't actually reveal the source code behind its analysis, nor guarantee beyond one year that their products will be free from defects in material and workmanship. Even when working properly, the margin of error for some versions of the instrument is up to 25%.

Concerns about the accuracy of breathalyzer tests have been raised for several years now in Houston and elsewhere, but the practical implications of how many cases would be affected if they were deemed untrustworthy have scared away elected judges from closely interrogating the technology. Between the political clout of groups like MADD and the fact that so much government employment, fine income, and even trauma hospital funding ride on a steady stream of DWI revenue, judges are no more likely to question breath-test results than officials in Salem would have questioned that dunking in water might expose witches.

See also: Paycheck vs. Integrity: Houston PD crime lab supervisor resigns over faulty breathalyzers, feared retaliation

Best way to cover up police misconduct: Plant drugs, ditch dashcam video, threaten subordinates, or have supervisor tell media 'all is well'?

Several police misconduct incidents caught this blogger's eye recently that merit Grits readers' attention:

False arrest covered up with planted drugs
At the Aransas Pass Police Department, "Several witnesses are coming forward saying they saw officers tase and beat a suspect only to find out they had the wrong guy. Witnesses also claim to have seen police officers plant drugs on the man." Six different people signed affidavits saying the drugs were planted after officers earlier announced they'd searched the suspect and found nothing. Sounds like a spur of the moment thing: Do you suppose the cop in question just carried drugs around on the job just in case?

Beating leaves cyclist on life support
Also from the Aransas Pass PD, Officer Jason Torres was placed on administrative leave over allegations that he knocked down a bicyclist then beat him so severely last month it left him on life support unable to speak. The badly beaten man, who was riding his bike to his home just blocks from the incident, was later charged with public intoxication and resisting arrest. The officer's dashcam conveniently failed to record the incident. The chief says he expects an investigation by the Texas Rangers to clear Torres, but the family's attorneys claim to be in possession of damning evidence. In any event, for a small town of around 10,000, that's a lot of cop controversy.

In-uniform cop hits school bus driving drunk to work
In Houston, reports the Chronicle, a police officer with a blood alcohol content of .205 was in uniform, driving to work, when his car slammed into a school bus. The cover up was nearly immediate: At the scene, responding officers ticketed the school bus driver (who told them the officer "smelled like alcohol, appeared to have been drinking and had open bottles of beer and wine in his vehicle"), then a supervisor "told reporters at the accident scene that blood tests would show [Officer Ruben] Trejo was not under the influence of any substances." Now the officer has been fired and the union has been informed that "at least two HPD officers, including supervisors, are under investigation for unspecified misconduct" related to the April 13 crash. In most allegations of police misconduct, of course, there is no forensic evidence available to debunk officers whose first instinct is to cover for one another. Good on HPD management for not sweeping the matter under the rug.

Recurring allegations by women against Brazos deputy constable

According to KWES-TV, "A Central Texas law officer who quit last week after being charged with kidnapping has been accused of trying to rape another female. College Station police say the second young woman came forward after hearing news reports about the first case." In the latest incident, Deputy Augustin Rubio was "charged with abducting a woman Aug. 31 while working off-duty security." The other woman making accusations was arrested by Rubio in June for alleged underaged drinking: she told authorities the deputy "tried to rape her before driving her to jail."

Indictment follows constable's retaliation threats against deputies
In Dallas, reports the Morning News, "Prosecutors on Friday accused indicted Dallas County Precinct 1 Constable Derick Evans of enforcing a ticket quota, retaliating against whistle-blowers, forcing on-duty deputies to distribute campaign material and raising campaign money with an illegal raffle for almost a decade." This stems from one of the investigations Dallas DA Craig Watkins handed off to a special prosecutor after sitting on the allegations for two years. Reported the News, "The court documents filed Friday also allege that Evans tried to intimidate potential witnesses against him last fall by referring to special prosecutors in the case as 'snakes' and threatened to 'chop the heads off' any deputies who cooperated with them." A trial date has been set for Nov. 28.

Cameron jail fails inspection over understaffing, inmates sleeping on floor

The Cameron County Jail failed an inspection because inmates were sleeping on the floor - not because beds weren't available but because the jail was understaffed and couldn't monitor an additional wing. Reported the Brownsville Herald:

The Cameron County jail division has been reprimanded by the Texas Commission on Jail Standards for having inmates sleep on the jail floors, which violates TCJS rules.

An annual inspection of the county jails this week found the county in violation of Section 259.134 of the Texas Administrative Code that deals with multiple occupancy cells, said Adan Muñoz, executive director of the TCJS.

“We did find some noncompliance issues, but mostly they were in regards that they were operating above the approved capacity and the inmates were on the floor, which is in violation of standards,” Muñoz said.

The code specifically states that the floor space in the jail cells should be clear. In Cameron County’s case, inmates were found sleeping on the floors during the inspection, said Shannon Herkoltz, assistant executive director.

“They had available beds, but their deal was they said ‘We are not going to put them in the beds because we don’t have eyes to watch them,’” Herkoltz said. “So in their opinion, it was better to put them on the floor where they had officers stationed.”

Part of Cameron's problem is that, when they built their jail, they built beyond capacity in order to accept contract inmates from the US Marshals Service. For a while they were paying more to house their own inmates elsewhere than the Marshal's Service was paying them for the beds they rent.

The Sheriff's Office tried to spin the news, falsely claiming that this was an "emergency" inspection brought on by media reports, when really it was their usual annual inspection (which as of last session are now performed unannounced). Reported the Herald:

Chief Jail Administrator Mike Leinart told Commissioners Court that TCJS conducted an emergency inspection because of the media reports and “wrote us up.”

“The jail standards was in another county, and when they read that we were losing six jailers in the newspaper, they did an emergency inspection on us. ... They wrote us up and I have to send 60 inmates out today (Thursday).”

County Judge Carlos H. Cascos countered that the reprimand could not have come because of the media reports, because the changes in jailers won’t occur until October.

“They did not come and find the jail not in compliance (because of the number of jailers), because we had not done anything yet,” Cascos said.

Leinart later conceded that TCJS’s action had nothing to do with what action the county was to take Oct. 1.

Cascos said Friday that county commissioners were not given the full story at their meeting Thursday.

“We were not told that last night that (inmates) were sleeping on the floor. What we were told that the prisoners were moved out because we did not have adequate staffing,” he said.

“It’s disturbing and we need to make every effort to comply with the law and rules set forth by the jail commission,” Cascos said.

Sheriffs pretty routinely treat TCJS like the bogeyman, blaming them in the press for problems of their own creation. I find it rather humorous to see them getting caught in a fib over it.

Crime victimization continues to plummet despite economic bust: But why?

Consistent with reports from Uniform Crime Reporting data, the national crime victims survey found crime continues to decline at surprising rates. From the press release:

• The rate of total violent crime victimizations declined by 13% in 2010, which was about three times the average annual decrease observed from 2001 through 2009 (4%).
• The decline in the rate of simple assault accounted for about 82% of the total decrease in the rate of violent victimization in 2010.
• In 2010 the property victimization rate declined by 6%, compared to the average annual decrease of 3% observed from 2001 through 2009.
• Strangers perpetrated 39% of violent victimizations in 2010, down from 44% in 2001.
• About 50% of all violent victimizations and nearly 40% of property crimes were reported to the police in 2010. These percentages have remained stable over the past 10 years.

The violent crime reduction, it should be said, is mitigated quite a bit by this caveat from the report:

The number of violent victimizations declined from 4.3 million to 3.8 million from 2009 to 2010, which was a decline of 12%. Simple assault, which accounted for 63% of all violent victimizations, declined by 15%. This decline in simple assault accounted for 83% of the total decrease in violent victimizations. No measurable change occurred in the number of serious violent victimizations from 2009 to 2010. 

Still, long-term trends on violent crime remain both remarkable, and positive:

Since 1993, the violent crime victimization rate declined steadily from 49.9 per 1,000 persons age 12 or older in 1993 to 14.9 per 1,000 in 2010, a decline of 70% (figure 2). Most of this decline occurred between 1993 and 2001, when the violent crime rate declined by half to reach 25.1 in 2001. The serious violent crime victimization rate followed a similar pattern of decline as the violent crime victimization rate. It declined by 73% since 1993, from 20.5 per 1,000 persons age 12 or older to 5.4 per 1,000. The serious violent crime victimization rate declined by more than half between 1993 and 2000, reaching 10.1 per 1,000 persons age 12 or older in 2000. It declined by almost half again from 2000 to 2010, reaching 5.4 per 1,000 persons age 12 or older.

Further, property crime declines in the last two decades are nothing short of remarkable: "property crime victimization rate declined 50% from 318.9 per 1,000 households in 1993 to 159.0 per 1,000 households in 2002. It declined further to 120.2 per 1,000 households in 2010."

The decline in crime during the recession, as Doug Berman noted, flies in the face of common (though empirically false) assumptions that unemployment causes crime. Instead, Berman suggests that reduced crime may actually increase unemployment, arguing that " there are fewer so-called 'career criminals' and that in turn means more people out looking for legitimate work.  Add in the reality that, partially due to less crime, in recent years fewer persons are being sent to prison and thus fewer persons are hired to build and work inside prisons, and we may have a (viable?) criminal justice explanation for the modern stubbornness of the US unemployment rate."

I doubt that those elements are a significant factor in boosting unemployment,  certainly not here in Texas where we've closed just one prison unit but cut relatively few jobs (mostly in prisoner healthcare). And career criminals would have already been counted in the long-term unemployment data. Plus, crime was declining during periods of economic growth over the last two decades, so Doug's analysis strike me as a prisoner of the moment. It's certainly true, though, that the crime decline appears to have been unrelated to any economic boom, actually accelerating in the face of the economic downturn. That's remarkable news, for sure. The question is "why?" The best research indicates increased incarceration levels explain only a fraction of the reduction.

Neoconservative criminologist James Q. Wilson published an essay recently analyzing possible reasons for crime declining, concluding that it may stem from "a big improvement in the culture," including reduced cocaine use, hot-spot policing, and potential victims who "have become better at protecting themselves." Environmental factors may even be at play: Wilson cites one researcher who estimated that "reduction in gasoline lead produced more than half of the decline in violent crime during the nineties" because of lower lead-levels in the blood. For property crimes, I'd add to that list the expanded use of GPS in so many products, which makes cars, phones, laptops, etc., easier to track when they're stolen. An ounce of prevention is worth a pound of cure.

As mentioned in the comments at Berman's shop, increasingly I've come to believe that the rise of the internet and video games explain a great deal of crime reduction since the mid-'90s, with young males who commit most crime spending more time in front of computer and TV screens than hanging out on the street corner, getting into trouble, etc.. The timeline certainly fits the crime decline nicely. Berman further has suggested that obesity, marijuana use, and addiction to prescription drugs may be "leading relatively crime-prone individual[s] to get so fat or to self-medicate so that they become relatively less crime-prone." Those factors certainly aren't exclusive to sitting in a chair playing video games or surfing the web.

There would likely be some who would dispute Wilson's suggestion that such factors, even if they lead to crime declines, represent "a big improvement in the culture." But it's hard to argue with results.

Vast majority of Midlanders skipping jury duty

I'm not sure I've ever heard of a county with such a radical problem getting people to show up for jury duty as in Midland, and wonder how the figures in this TV new story jibe with those from other counties:

Midland County Sheriff Gary Painter is shocked and dismayed to hear jury duty has fallen to the wayside for Midlanders.

Thousands of residents are skipping out on jury service and it's costing the county big.

Midland County admits they haven't implemented consequences for not showing up for jury duty in a few years, but now they're serious if you don't respond, you could end up at the county courthouse anyway.

"This is the worst problem with jurors not showing up for jury summons that I have ever seen in 25 years," said Midland Co. District Attorney Teresa Clingman.

This week alone, of 750 summons sent out only 149 people reported to the Midland County Courthouse Monday morning.

"75 percent of people fail to show up for jury duty, that is a constitutional right," said Sheriff Painter.

District judges said they will send a warning letter to those who didn't show up, but if that didn't work Sheriff Painter said "we will take summons in hand and we will go to every person's house that had a summons issued, go to their place of business, we'll snatch them up and we'll go to court."

What does it say about the system that so few folks show up for jury duty? Have attitudes changed since the rates were higher, and if so, how? Do Midlanders take the obligations of citizenship more lightly than in the past? Do folks think high conviction rates mean it doesn't matter whether they participate or not? Does there need to be more notice than a single letter mailed to prospective jurors? (Open rates for direct mail are notoriously low.) Is the low rate for juror pay a factor for people who lose wages when not at work? I find this datapoint particularly curious and surprising. What do you think is causing it? What strategies might fix it?

Imagine if 98+% of cases didn't result in plea bargains: The whole system would break down if defendants demanded jury trials at all more frequently.

UPDATE: From Texas Watchdog, "Jury duty stipends cut from $40 to $28 per day, $1.7 million savings for state of Texas." Further, "Letters from the state Comptroller went out in August reminding county courts that the robust $6 reimbursement for the first day of jury duty would not change."

Alleged coerced confession interrogated in El Paso habeas hearing

An ongoing habeas hearing in an El Paso district court seeks to overturn the 1995 homicide conviction of Daniel Villegas based on what the defense claims was a coerced, false confession. Testimony resumes today. The case has received widespread local attention and is even the subject of a corrido (ballad) by a band in northern Mexico. See coverage from a local TV station:

• Assistant District Attorney takes stand during Villegas hearing
• Man Villegas claimed coerced false confession to testify
• Man who helped put Villegas in prison now supporting him
• Surprise witness comes forward; Villegas hearing in recess
• Witness claims detective forced him to sign false statement
• Defense claims former detective forced false confessions

And from the El Paso Times:

• Judge says federal inmate must testify in Villegas case
• Daniel Villegas abused by detective, witness says
• Several heated moments during Villegas hearing
• Freed prisoners rally for Daniel Villegas
• Villegas hearing witnesses say they know the 'real' killer

"Community or Custody?" Why probation can be tougher, more effective than incarceration

The question in the title of this post comes from an interesting BBC story about debates in the UK over the effectiveness of imprisonment vs. probation, or what there are called "community" sentences. Wrote columnist Mark Easton:

Journalists sometimes characterise a court's use of such a measure as the offender "escaping prison" - the suggestion being that only depriving the criminal of his or her liberty amounts to a suitably rigorous punishment.

Custody and community are often seen as polar opposites in the justice lexicon: custody is tough; community is soft; prison is properly punitive; probation is a let-off.

The very word "community" has become associated in the minds of some with indulgent and misplaced compassion, a dangerously naive belief in the essential goodness of society.

It is cast as a left-right thing too, of course. Spiky traditionalists demand punitive sanctions. Fluffy liberals want care and rehabilitation. 

Sounds familiar, huh? But Easton reports that conservative leaders in Britain are moving away from such cliched dichotomies, citing in particular a new public policy report (pdf) with a foreward authored by a leading conservative thinker:

The criminal justice think-tank Make Justice Work wanted to introduce some rationality into this debate and a year ago assembled a panel of experts to consider "community or custody".

The commission included senior figures from across the criminal justice system and was headed by the chief political commentator of the Daily Telegraph, Peter Oborne, an influential figure in shaping conservative thinking.

Today we see the fruits of their labour, a unanimous report with Oborne invited to write the foreword however he saw fit.

"The first point that became shatteringly clear was that alternatives to prison are not a soft option as so often portrayed," he says.

Bemoaning the way "the debate is framed in favour of those who urge long prison sentences", he says his conclusion at the end of his year-long study is that "Ken Clarke's revolution is the most intelligent and realistic answer to many of the most intractable problems in the criminal justice system".

If other members of the committee had written that - former prisons inspector Dame Anne Owers or former Met commissioner Lord Blair for example - I suspect their words would have been quickly dismissed as woolly liberal propaganda.

But Oborne is part of the Tory establishment: independent minded but a man who understands and respects the way conservatives think.

The committee's report focuses on the problem of persistent, low-level offenders "who are currently filling our prisons to breaking point - and who leave prison only to offend again, and again". (For the perpetrators of serious and violent crime, the panel agreed, "custody is the only just and effective punishment".)

The conclusion is that rigorous community programmes not only deliver "real reductions in reoffending" they can also "cut crime at a fraction of the cost of prison".

Latest figures from the Ministry of Justice show that non-custodial sentences are up to 9% more effective at preventing reoffending than short prison terms and today's report points out that while a three month prison sentence costs around £11,000, a year-long intensive community justice course costs half of that.

I find this commentary especially notable because Britain's incarceration rate is so much lower than the United States', much less Texas'. (England's per 100,000 incarceration rate is 153, Newsweek reported Monday, compared to 743 in the US.) So if they're incarcerating more people than is justified based on a pure cost-benefit analysis, imagine how many prison inmates here might have been better served by strong probation programs! Looking at the report (pdf), Osborne's foreword is especially remarkable for his recognition that probation or "community" sentences can be "tougher" than prison:

The first point that became shatteringly clear was that alternatives to prison are not a soft option so often portrayed. In Manchester the Intensive Alternative to Custody Project was incredibly impressive and really opened my eyes.

Here young criminals were given very demanding community work. They were monitored night and day. They were obliged to confront their alcohol and drug problems- the issues that had typically got them into trouble in the first place. I was hugely impressed by the social worker who dealt with the offenders’ families. Again and again by talking to parents and siblings she would identify the deep problems that had sent offenders down a life of crime- and then mobilise families to provide support.

A number of the offenders at this Manchester course told us that it would have been much easier to have gone to prison for three months, and that some people did indeed make the decision to drop out and go to jail. But for those who did fully participate in the very intrusive and challenging twelve month alternative programme the rewards were huge.

By the end of it they had often been found jobs. They were far less likely to commit another crime and by the end some were well on the way to becoming fully-fledged members of society. It is perfectly true, as Conservative MPs in particular like to claim, that prisoners cannot commit crimes while in jail. But they are far more likely to reoffend when they have served their term than those who have been given an alternative punishment. At the woman’s project we visited in Bradford the reoffending rate is between 5-10%.

Furthermore the costs do not bear comparison. Three months in prison costs a bare minimum of £11,000 - the full 12 month Manchester course is approximately half that.

Sitting in a jail cell isn't that hard compared to confronting bad habits, addiction, working a steady job and eliminating negative influences in one's life. Indeed, too often prison is little more than an easy substitute for requiring offenders to do those things. Everyone would be better off - victims, offenders and taxpayers - with a justice system which recognized that fact and focused on changing behaviors, where possible, instead of mere punishment/incapacitation.

Britain also is apparently putting a lot more state resources into "community" sentences, whereas, for example, in Texas the majority of local probation department funding comes from probationer fees. If the Manchester program costs half what incarceration does in the UK, in Texas we spend far less than they do on probation programming. According to the LBB's Uniform Cost Report, in 2010 imprisonment cost the state an average of $50.79 per day, compared to $2.92 for probation - more than a 17-1 ratio. The Manchester program sounds impressive, but it doesn't sound free. Since they incarcerate so much less than we do, though, the money "saved" can be spent on probation and still cost (a lot) less than the justice system in the US. Similarly, this blog has long advocated reforming Texas' justice system by closing our most expensive prison units, reducing incarceration rates, and reinvesting the savings in strong probation programs like those described here. We don't need to spend more money, we need to spend it smarter.

Finally, if regrettably, I don't expect the American media any time soon to embrace Mr. Osborne's realization that their "reporting is often loaded" or that "the debate is framed in favour of those who urge long prison sentences," though the same thing is true of American crime reporting, in spades. The flaws that cause that dynamic are too deeply engrained in the structure of how American news stories are typically written (a subject I've been thinking about a lot lately, but which will have to wait for another day). Still, it's good to see memes the Right on Crime movement among American conservatives developed even more fully among their counterparts across the Atlantic.

Former TDCJ, TYC employee on trial for sex crimes against disabled, elderly

The man on trial as the so-called Twilight Rapist in southeast Texas is a former prison worker who also had two employment stints at the Texas Youth Commission. Reported AP:

A former Texas prison employee suspected of a being a serial rapist accused of targeting older women will be handcuffed and shackled during his trial after his defense attorney made the request.

Testimony was scheduled to begin Tuesday in the trial of Billy Joe Harris, 54, who is charged with aggravated sexual assault of a disabled person. Jury selection for his trial was completed Monday, the Victoria Advocate reported. ...

Harris was found about 100 miles from Rosharon, where he worked in the kitchen of a Texas state prison. Harris had worked in state correctional facilities on an off for about 12 years since 1995, according to state records.

His jobs included two stints at the once-troubled Texas Youth Commission, which was overhauled several years ago in wake of a widespread sex abuse scandal involving guards attacking juvenile inmates.

Harris bounced around to several prisons around the state, working mostly in food service. Background checks before his hiring revealed no prior criminal history, according to the Texas Department of Criminal Justice.

I'd read about these crimes and remember the alleged rapist being caught, but I hadn't realized until this story that the fellow was a TDCJ employee, much less that he'd previously worked at TYC before the scandals there broke in 2007. It makes one wonder whether such predilections ever played out on the job. According to the Advocate, Harris' attorney plans to enter a plea of not guilty by reason of insanity.

Reduced jail population spur budget, staffing cuts at Bexar jail, but do they go too far?

With its jail population falling, the Bexar County Commissioners Court is seeking to cut staffing at the county jail in a budget expected to be approved today. Reported KSAT-TV:

While collective bargaining negotiations between the county and sheriffs deputies are on hold for now, county commissioners are expected to adopt a 2012 budget on Tuesday that would reduce the county jail detention staff by 100 positions.

Bexar County Manager David Smith said the county originally called for 128 positions to be dissolved through attrition, but after an extra $6 million in revenue was found, the county dropped that number to 100.

"There were no law enforcement positions involved," said Smith. "It takes us almost two full-time people to staff a one person job at the jail and we also have over 800 empty jail beds."

The jail hasn't been near it's 4,596-inmate capacity since July 2009. This year, it's dropped nearly every month and had 3,915 during a count in August."

It doesn't compute to have the same amount of staff now that we did when we had four-thousand plus inmates at the jail," said county commissioner Paul Elizondo. "We want to run a safe jail, absolutely. We want to run a safe jail but we want to run an efficient jail that frees up funds to be spent on other law enforcement activities."

Some detention officers or their union representatives have argued that reducing the overall jail staff will make it unsafe for both employees and inmates, however Elizondo said the state has told the county that they already exceed the minimum number of required staff members by 200.

Certainly I favor reducing inmate populations to lower incarceration costs. But an email from a deputy at the jail to your correspondent raises questions about the wisdom of these particular cuts.

For starters, the reduction in inmates stems in part from shipping inmates to other counties: "Currently, we have shipped 100 inmates out to Zavala County at a cost of $45.00 per day, per inmate," wrote the deputy. This equates to over $1.6 million per year.  We also have another 24 inmates at Frio County but they are being housed at no cost to us at this time." Why is the county shipping inmates to other jurisdictions? According to my source, lack of staffing to open up currently empty wings in the jail: "Currently, we have 9-10 living units closed which, if occupied, would equal another approximately 650 inmates.  These units are not staffed because we simply don't have the people to put there."

At current inmate levels, the Bexar Sheriff must use overtime to keep the jail staffed, according to my source: "Currently most of our Detention officers are working mandatory overtime, which for now is paid at time and a half.  Every day, approximately 10 officers are kept for an additional shift or part of an additional shift.  At our Annex we also have mandatory overtime but we also have authorization for 2 voluntary overtime slots each workday and, I believe, 3 voluntary slots on the weekends.  This has helped our staffing a lot but you have to wonder when the money is going to be cut off or run out for overtime and then there's the issue of just working your people to death with overtime."

I don't understand how reducing staffing will help lower costs if the county must turn around and cover shifts paying time-and-a-half. Indeed, commissioners seem aware that reduced staffing will increase overtime costs. "Along with keeping 28 positions, the county plans to use $1.5 million of the new-found revenue to help pay for overtime for extra shifts or when the jail population increases," reported KSAT-TV. It's difficult for me to understand how, if it requires overtime to staff the jail at current levels, Commissioner Elizondo could claim that the jail "exceed[s] the minimum number of required staff members by 200." There's a disconnect in there, somewhere - some hidden rationale that eludes this writer. If you've got more jailers than you need, why are you paying some of them overtime?

The union, laments my deputy informant, is "focused on our collective bargaining agreement rather than the immediate issue of staffing." Indeed, they may soon end up fighting for their very existence. Commissioner Kevin Wolff, son of Bexar County Judge Nelson Wolff, has called for a petition drive to decertify the union, which could come as early as this November. So the staffing cuts will likely be implemented, and we'll see the effects, for good or ill, down the line.

Indeed, if Commissioner Wolff and his supporters had their way he would privatize the jail outright, and my deputy informant fears cuts in the current budget may be setting the Sheriff up for a battle over privatization down the line:

Losing 64 officers and not replacing them is going to make things very difficult at the jail for staff and inmates.  While we are forced to work mandatory overtime we have to worry about when the money is going to run out and then we are essentially working for comp time, which we wont ever get to use due to...staffing issues. The loss of the 64 positions is just the start of the problem.  The attrition will continue past that because people quitting, retiring, getting fired etc. are just facts of life.  The call ins and absences such as sick, military leave, FMLA etc. will still continue unabated and the jail will become a more dangerous place than it is already.  I think our Commissioners are aiming to get the jail to fail a TCJS inspection (we have passed every inspection under our current Sheriff) and cripple our staff so badly, which will make the chances of failing a TCJS inspection that much easier, and either shame the Sheriff or force him to have to privatize.

If that's really the motive behind the budget cuts, it's quite a cynical one. Hopefully such speculation is ill-founded, but we're talking about a tense, politically charged situation where such tactics are not out of the realm of possibility.

No doubt, reducing jail and prison populations is the best, quickest way to reduce incarceration costs, at both the county and state level. So Bexar's inmate reductions on their face create an opportunity for savings. But the data on overtime and the practice of housing inmates in other counties raise the possibility that Bexar commissioners may be cutting more than is justified by the lower jail population. Cutting the jail budget is a good thing, but it must be done safely and smartly.

Medical examiners' work may be "void" for failure to file constitutional oaths, bribery statements

A controversy over the credentials of medical examiners raised by researcher David Fisher has counties around the state checking to see if their medical examiners have executed a written oath of office and a bribery statement, which seemingly most have failed to do. Reported KCBD-TV in Lubbock:

A legal challenge could unravel the validity of many murder cases in Texas, including some done in the past in Lubbock.  Former Lubbock County Deputy Medical Examiner Paul Schrode faces just such a challenge for the work he did as Chief Medical Examiner in El Paso.  In 2010, Schrode was fired from El Paso amid allegations that he falsified his resume while in Lubbock to get the El Paso Chief's job.

This newest challenge is not an allegation of lying but rather a failure to complete paperwork for public officers in Texas.  Schrode did not execute a written oath of office nor a bribery statement.  The Texas Constitution demands such paperwork for all public office holders.

Therein lies the rub.  Is a Medical Examiner a public office holder?

If so, the lack of such documentation could be used to challenge autopsies done by Schrode both in El Paso and in Lubbock.  Countless criminal cases involving an autopsy could suddenly be subject to tough legal questions.

Medical Examiners in Dallas, Tarrant, and other counties have recently executed written oaths of office and bribery statements.

By contrast, the Harris County Medical Examiner's Office said on Wednesday, "The Chief Medical Examiner serves at the pleasure of Commissioners court.  This is not a constitutional office; therefore, neither Chief Medical Examiner nor his appointed Assistant Medical Examiners are required to take an oath of office."

The man who has instigated some of these challenges statewide, David Fisher, is a document specialist who often works for defense attorneys.

Fisher says, "According to the state Constitution, all state and county elected and appointed officials must execute the bribery statement before taking the oath of office."  He also says, "Any public official who controls any portion of state sovereignty is subject to this requirement and this includes medical examiners."

Fisher cites an Attorney General legal opinion in support of his claims.  He also says, "It could affect 90 percent of the people on death row."

The same issue was raised earlier this summer in an El Paso case over essentially similar allegations. Notably, the National Academy of Sciences singled out medical examiners as facing a major talent shortage, and as a last bastion of un-examined junk science.  While the oath of office may seem like a technicality, it does speak to the loosey-goosey way in which medical examiners are regulated in Texas, or rather, how they are not. The Fort Worth Star Telegram reported in 2009 that the field had come under fire for a "lack of performance standards, poor documentation, a shortage of qualified personnel and lax oversight."

Besides Dallas and Tarrant, the medical examiner in Webb County (Laredo) also filed an oath and bribery statement just last week, though she's been in office since 2007. The Webb County Attorney had declared that "Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void." Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they "void" as well? I can see why the Harris County medical examiner stuck to their guns: Filing the oath now implies the ME agrees they should have done so earlier, which potentially calls into question all their old cases. What a Grade A mess it will be if courts decide those cases are invalid. And yet, if Fisher's interpretation of the AG opinion is correct, that seems to be the law. The El Paso case will likely be the first place the theory is tested.

UPDATE: In the comments, David Fisher pointed to this document (pdf) from the Texas Association of Counties giving guidance on who must have an oath on file, and it includes county medical examiners.  He also pointed to this AG's opinion (pdf) which declared, "Local officers must sign the statement and retain it with the official records of the office," though the opinion doesn't specifically address medical examiners. The court precedent Fisher relies upon to claim medical examiners are public officers (Prieto Bail Bonds v. State) similarly doesn't specifically mention medical examiners, but it does read: "An individual is a public 'officer,' within meaning of constitutional provision requiring oaths of appointed officers, if any sovereign function of the government is conferred upon that individual to be exercised for the benefit of the public largely independent of the control of others; public officer is one who is authorized by law to independently exercise functions of either an executive, legislative, or judicial character.." I'd have to agree with Fisher that it'd be hard to conclude the state has not conferred upon medical examiners a "sovereign function of the government" that is "largely independent of the control of others." The courts will have to decide - and the pragmatic aspects of this issue may end up trumping - but Fisher's seems like a strong argument.

From the off-topic irony department: Fire Follies

This is off topic, but I find this situation incredibly ironic and frustrating, if somewhat funny for fans of dark humor.

Earlier this year, Governor Perry and legislative leaders staunchly refused to allow Texas' Rainy Day Fund to be accessed  to prevent widespread budget cuts, ostensibly on the (entirely specious) grounds that the money might be needed to combat a natural disaster.

Then, when the drought of the century hit - while the legislative session was still in full swing, it should be mentioned - Governor Perry's response wasn't to focus more state resources on wildfire prevention or to push for a comprehensive water plan. Instead he asked the public to pray for rain, even issuing an official proclamation. In the months that followed (should we say, in response?), the drought spread by orders of magnitude to cover the entire state.

As it turns out, part of Texas' much-vaunted austerity measures this spring included slashing the budget for state firefighters and grants to volunteer fire departments, including  agencies now combating the blazes in Central Texas. Reported the Huffington Post, "The Texas Forest Service's funding was sliced from $117.7 million to $83 million. More devastating cuts hit the assistance grants to volunteer fire departments around the state. Those grants were slashed 55 percent from $30 million per year in 2010 and 2011 to $13.5 million per year in 2012 and 2013. Those cuts are effective now." Further, "In some cases, fire officials say, firefighters have had to pay out of pocket for basic necessities like proper protective gear and fuel to get them to the scene."

So Texas cut the budget to save money for a natural disaster, then when a natural disaster occurs we're unprepared to deal with it because of budget cuts. Genius.

Odds and ends: Crooked cops, cheering death, and Rick Perry's soft side

I don't have time for much writing this morning, but here are several items that merit Grits readers' attention and would probably warrant longer posts if the Forensic Science Commission didn't start up first thing this morning. Anyway:

Reactions to Rick Perry's soft side
Numerous reactions around the blogosphere to my post last week listing things Rick Perry has done that criminal justice reformers should like: Radley Balko called it "odd" but conceded that the list is "certainly worth considering, and it’s an important contribution to the discourse about Perry among those of us with an interest in these issues." At Mother Jones, reporter Tim Murphy reacted like an audience member in a John Waters film when Divine eats a turd, declaring that compared to Perry's water carrying for private prison companies and strident support for the death penalty, the items on my list had a "How was the play, Mrs. Lincoln?' quality to them." At The Economist, by contrast, Erica Grieder takes the record described on its face and looks to broader lessons from the example. She wonders if reforms in Texas didn't pass because when a "movement comes from the 'wrong' party, its framing reflects that party's concerns and has been reality-tested by its base (as in Bill Clinton's welfare reform, which was described as enhancing dignity and employment). Either way, worth keeping in mind. It may be hard to build a Republican coalition on climate change, for example, or Democrats for social security reform—but if those coalitions did come about, they would certainly get something done."

Cheering death
Rod Dreher at The American Conservative gave voice my own reservations when he said, "the crowd at [Wednesday's] GOP event cheering the execution of 234 Texas death row inmates was one of the most disgusting things I’ve seen in a long time. Even if you’re for the death penalty, you shouldn’t cheer the taking of a human life. At best the death penalty is a necessary evil. Putting even the worst criminal to death, even if he bloody well deserves it (as most of them do) is always a defeat for humanity, and something to be undertaken with sobriety, not bloodlust. What a repulsive display of stupidity and cruelty. Is this what the Republican Party is for?" Doug Berman helpfully suggests more probative questions journalists might ask the governor in the future on the topic.

Do privatized jails save money?
The San Antonio Current says "yes," but only because of lower pay, benefits and pension obligations for guards and staff. An analysis considering privatization of the Harris County jail found much the same thing. So the county could save the same money without privatizing, if they cared to, by slashing pay and eliminating or reducing pensions if that's what they want to happen. Much depends on the relative power of the local deputies union - they're the ones whose ox is being gored.

Dozen Fort Worth officers accused of faking tickets for overtime pay
Three more Fort Worth police officers were indicted over falsifying tickets to earn extra overtime pay. This is in addition to "nine [other] officers accused after an investigation. Six were fired and three resigned. Four of the six who were fired admitted to falsifying records but deny that they did so to collect overtime pay, according to police officials."

Dem candidate targets Alcala instead of Keller on CCA
Attorney and failed TCDLA presidential candidate Keith Hampton will take his second run as a Democrat for a slot on the Court of Criminal Appeals. Though Judge Sharon Keller will (likely) be on the same ballot, Hampton for some reason chose rookie CCA incumbent and recent Perry appointee Elsa Alcala as his target. Having examined her record in some detail, I consider Alcala the least objectionable CCA member up next year and can't understand why Dems would target her as opposed to Keller. The Presiding Judge should be the weakest statewide target for Dems on the 2012 ballot. She's likely the only CCA member with a (relatively) high, if negative, name ID (I'd imagine; I haven't seen polling on the CCA in years and at the time no one knew who they were). Plus, if she makes it to the general election, she'll be weakened by a primary fight with Larry Meyers, a fellow member of the court, as well as having had her campaign coffers soaked for legal fees in her fight with the Commission on Judicial Conduct. If I were a Democratic strategist, I'd be preparing to throw the kitchen sink at Sharon Keller in 2012 with the best candidate one could find. There really aren't any other winnable statewide seats for the Dems that are even a longshot - Keller is arguably the Texas GOP's weakest electoral link.

Alone, inside
Lots of good posts over at Solitary Watch about the aftermath of the Pelican Bay hunger strikes over solitary confinement in California.

Blackburn on traffic tickets as revenue generators and next steps for innocence reform

My boss Jeff Blackburn from the Innocence Project of Texas was in town today for the Forensic Science Commission meeting and we sat down for a recorded chat, the second-ever Grits podcast, fwiw. A little hissy (your correspondent is much more writer than audio technician), but as always Jeff's views are provocative and insightful, if a little on the cynical and glum side. Go here (about 20 minutes) to listen to what he had to say on the subjects of traffic tickets as revenue generators during the recession and what the Legislature needs to do next to prevent  false convictions and open the door to get more innocent people out of prison.

MORE: By popular demand from the comment section, here's a transcript of the podcast, courtesy of Grits donors and subscribers.

Albert's reading list on meditation, yoga, rehabilitation, and prisons

After the blog post about transcendental meditation in prison, I contacted the federal agency that maintains a website helping decide which evidence-based practices are really evidence-based. I received a nice email today in response, which read in full (with links embedded in the text):

Thank you for contacting CrimeSolutions.gov.

CrimeSolutions.gov is not an exhaustive list of all justice-related programs and reviews of programs are conducted on an ongoing basis. CrimeSolutions.gov has not currently evaluated any programs related to meditation or yoga in adult correctional settings. Meditation is, however, one component of the following program evaluation:

Motivational Interviewing for Juvenile Substance Abuse

Additionally, we were able to locate the following resources on your topic of interest which may be useful in your research:

Effects Of Group Practice of the Transcendental Meditation Program on Preventing Violent Crime in Washington, D.C.: Results of the National Demonstration Project, June–July 1993

Mindfulness-Based Stress Reduction in Massachusetts Correctional Facilities


Effects of the Transcendental Meditation Program on Recidivism Among Former Inmates of Folsom Prison:  Survival Analysis of 15-Year Follow-Up Data, Journal of Offender Rehabilitation, 1987: 36, 181-203. Link to Abstract.

Walpole study of the Transcendental Meditation program in maximum security prisoners I: Cross-sectional differences in development and psychopathology. Journal of Offender Rehabilitation, 2003: 36: 97-126. Link to Abstract.
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We also conducted a search of the National Criminal Justice Reference Service (NCJRS) library online through the NCJRS Abstracts Database. Using keywords, the Abstracts Database search engine will search for pertinent abstracts of materials from the NCJRS Library, which contains over 200,000 articles of justice-related literature.

Using the keywords meditation, yoga and corrections, we were able to locate the following resources from the Abstracts Database that may be of interest to you:

• Potential Benefits of Meditation in a Correctional Setting, NCJ 219850
• Transcendental Meditation in Criminal Rehabilitation and Crime Prevention, NCJ 203236
• Courage to Create: The Role of Artistic and Spiritual Activities in Prisons, NCJ 231190

If you would like to view additional information about any of the above items, or if you wish to conduct your own search of the Database, please visit http://www.ncjrs.gov/App/AbstractDB/AbstractDBSearch.aspx. 

For instructions on how to obtain copies of the resources from the Database, please go to http://www.ncjrs.gov/tutorial/obtain.html.

Finally, you may be able to locate program evaluations on this topic in another program library. To locate information and URLs for such online libraries, please visit the following section of our site:

Other Evidence-based Program Libraries
http://www.crimesolutions.gov/about_otherlibraries.aspx

Please let us know if you have any further questions or comments.

Sincerely,
Albert
Content Specialist
National Criminal Justice Reference Service (NCJRS)
Office of Justice Programs (OJP) Clearinghouse
http://www.crimesolutions.gov

I haven't gotten such a helpful response from someone in a government agency in so long it caught me off guard. Good show, Albert. More on this, perhaps, once (if) I get a chance to go through this reading list Albert has now assigned for us

Federal judge bench slaps parole board over assigning sex-offender conditions without due process

The Statesman published a brief description of a case that attorney Bill Habern had notified me about, signalling a growing frustration by federal courts with the Texas Board of Pardons and Paroles over their application of Condition X to parolees not convicted of sex crimes. (For those not familiar with the parlance, Condition X assigns offenders most restrictions on sex offenders except for public registration.)

In June, an attorney who's knowledgeable on the subject predicted to Grits "that most cases will have Condition X withdrawn by transmittal to a Board panel, and not by a mass of hearings," but  that's not what's happening. Around 7,000 parolees have been assigned Condition X without having committed a sex crime, according to published estimates, but the parole board has held what are known as "Coleman hearings" to assess parole conditions for only 3 parolees so far, according to Habern, who at Grits' request described the case's signifigance in an email thusly:

Our client was placed on sex offender supervision, has no sex conviction and was given sex offender conditions without proper due process or a hearing, as were approximately 7,000 other parolees. Since May, 2011 only 3 Coleman hearings have been had, with 300 people under consideration for Coleman hearings. The board refuses to reconsider anyone on Coleman supervision unless they request relief, and the board continues those who were not subject to Coleman due process on sex supervision no matter the failure to consider them for due process. When we demanded due process for our guy the board started telling him he'd have to jump through a bunch of testing including plysmograph before they would consider giviing him Coleman due process. Our position is he is not even legally on sex offender supervision, so the board cannot enforce such conditions until due process has been afforded..  Ct. order (TRO) prevents the board from enforcing sex offender condtiions until we can have a full hearing on the issue Sept 20th.  

As we were having the hearing yesterday the client was sitting in his parole officer's office. If we lost, we anticipated he was going to be arrested for non-compliance with sex offender conditions.

I uploaded the actual court ruling (pdf) for anyone interested. The question becomes, what happens to all those without attorneys to request Coleman hearings, and will the court's dicta after the hearing on the 20th affect only this case, only the 300 who've requested hearings but haven't received them, or all 7,000 people similarly situated? If not the latter, will it take a class action suit to get it done for everybody, and if so what deep pocketed civil attorney dares to file it? (This may be a good one for public interest attorneys at ACLU, Texas Civil Rights Project, etc., to take a second look at.) The Western District judges - Sparks and Yeakel, at least - are already unhappy with the parole board over failing to follow their direction on this, having already found rampant due process violations in near-open defiance of the court. At one point Sparks called Rissie Owens "some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed'"; the only way he could have been harsher would have been to step off the bench to slap her face in court. So there's fertile ground, but it'd be a significant undertaking, requiring a skilled attorney or firm with significant resources to really do it right. That many clients in a federal class-action civil rights claim is a lot to manage, even if a case looks like a slam dunk.

Until then, one supposes, these cases will continue to be filed in federal court one by one. Surely it'd be better, if only for reasons of judicial economy, if Judge Yeakel were to nip this in the bud at the Sept. 20 hearing and order Condition X removed for all 7,000 eligible parolees until hearings can be held. Otherwise, it's pretty clear the BPP will needlessly stall as long as possible. The Board of Pardons and Paroles may not like the court's decision, but at this point they're either dragging their feet or thumbing their nose at the court (depending on which body part you'd like to choose for a metaphor). Either way, that's an untenable position. Federal judges are appointed for life, so Sparks, Yeakel, et. al., aren't going anywhere.

See related Grits posts:

• Did parole board dawdling create civil liability for Texas on sex-offender conditions?
• New parole rules require due process for sex-offender conditions
• Court: Parole board can't impose sex-offender conditions without evidentiary hearing
• Judge Sam Sparks: Parole chief Rissie Owens is "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed"
• Federal judge: Parole board may have improperly labeled thousands as 'sex offenders'
• Federal litigation seeks individualized review of sex-offender cases by parole board

Post-conviction appeal may be allowable under new DNA testing statute

A pair of stories at the Texas Tribune about post-conviction appeals deserve Grits readers attention. First, reports Brandi Grissom, Hank Skinner may benefit from a new, little discussed statute passed last spring by state Sen. Rodney Ellis and state Rep. Pete Gallego, SB 122, which removed certain grounds for prosecutorial objections to post-conviction DNA testing. Sounds technical, and it is, but it means that when potentially exculpatory evidence exists, prosecutors now have few means short of destroying it to prevent the evidence from being tested.

Skinner using SB 122 is ironic in one respect. Its passage was made easier because of Skinner's victory at the US Supreme Court, which ruled this spring that Skinner could sue under federal civil rights statutes if the state denied him DNA testing. So the tort-reform minded legislators figured, if we let prosecutors delay testing we'll be inviting newly approved federal litigation under the Skinner ruling. The law was passed, then, in part, because Skinner won the right to sue in federal court for DNA testing, but in practice it will likely be the state statute that gets the evidence finally tested. Whether the evidence exonerates him, implicates him, or is deemed inconclusive, Skinner's case has had a significant effect on jurisprudence surrounding DNA testing, setting new federal precedent and helping spur a new state law.

Also, the case of Duane Buck, whose execution is scheduled for Thursday September 15, is a mess of Attorney General Greg Abbott's creation. Here's the background, via Trib reporter Lara Lapin:

Buck was convicted in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. During his 1997 trial, psychologist Walter Quijano testified that because Buck was black, he was more likely to be a violent threat in the future. Quijano gave similar testimony in six other death row cases.

In 2000, then-Attorney General John Cornyn admitted that all of the cases, including Buck’s, were tainted by constitutional error because the government relied on race as a consideration for the death sentence.

Cornyn said it was “inappropriate to allow race to be considered as a factor in our criminal justice system,” and promised to “continue to do everything [he could] to assure Texans of [the Office of the Attorney General’s] commitment to an equitable criminal system,” according to court documents.

In each of the other cases in which Quijano testified, the petitioner was granted a new trial. All but one, who has been executed, remain on death row. Buck’s is the only case that has not been retried.

I don't know why Abbott had his office reverse course, but as they say in political circles, the optics are bad. What's the harm from giving the guy a re-sentencing hearing instead of defending an execution based on this hot-button argument about race that now-Senator Cornyn, Abbott's predecessor as AG and former colleague on the Texas Supreme Court, could not bring himself to endorse? It's like the state is looking for reasons to pick fights with the federal courts. Hmmm, I wonder where I might have gotten that idea?