'The Unknown Exoneree'

At the Dallas News, Diane Jennings and Selwyn Crawford have begun a fascinating series on an 1892 case in which a young black man was accused of rape, nearly lynched, then sentenced to death and later pardoned by Gov. James Hogg based on his innocence claims. "Although he did not match the victim's description and had an alibi," reported the News, "she picked him in a lineup." See 1892 newspaper accounts of the mob's attempt to lynch Isaac Bruce, and a timeline of the case.

Noted the reporters, "Across the United States, 1892 was the peak year for lynching, according to archives from the Tuskegee Institute in Alabama. At least 230 people were murdered by mobs that year." Indeed, "Months after Isaac Bruce faced a lynch mob in Hillsboro, a crowd in Paris, Texas, watched vigilantes prepare a platform for Henry Smith, a black man accused of killing a 3-year-old white girl. Before he could be tried in 1893, he was tortured with hot irons, doused with oil and burned to death. The lynching drew a crowd of 10,000 people."

The eyewitness identification aspect gives the story modern currency, demonstrating that some contributing factors to injustice in the past - including racially charged injustices - remain with us long after the lynch mobs subsided. This is an historical example of cross-racial eyewitness identification where the suspect failed to match the original witness description, and in an era when whites and blacks mingled precious little: We've seen basically the same set of facts play out repeatedly among DNA exonerees, with faulty eyewitness identifications accounting for the majority of those exonerated by DNA. And though literal lynch mobs have become a thing of the past, the lynch-mob mentality continues to exist and pandering to it exacerbates the type of rush-to-judgment and tunnel-vision errors which have contributed to so many modern false convictions.

Discredited "future dangerousness" expert was honored trainer at prosecutors' association

An investigator with the Special Prosecution Unit in Huntsville - who was honored by last year by the Texas District and County Attorneys Association for service as a faculty-trainer for the group - gave false "expert" testimony that's now caused two death sentences to be overturned by the Texas Court of Criminal Appeals. According to the Fort Worth Star-Telegram (June 15):

An "expert witness" who frequently testified for the prosecution in capital punishment cases has caused another death sentence to be overturned in Texas.

The Texas Court of Criminal Appeals on Wednesday justly threw out the death sentence for Manuel Velez of Brownsville, convicted of killing his girlfriend's infant son in 2005, because of false evidence given during the punishment phase of the trial.

A.P. Merillat, who testified for the state as an expert on prisoner security classification, told the jury during the punishment phase that if sentenced to life in prison, Velez would eventually be given lenient privileges allowing him to work outside the prison fence line. In other words, he would continue to be a threat to society.

The appeals court, in overturning the sentence (still upholding the conviction), said the Cameron County district attorney's office and the witness should have known the testimony was false.

The court in 2010 threw out the death sentence of a San Antonio man because of similar testimony from Merillat.

Given recent court rulings regarding testimony he "should have known" was false, one wonders what sort of training Mr. Merillat provides for TDCAA, not to mention whether the guidance he provided changed after the Court of Criminal Appeals ruled he gave false testimony in 2010? But since most of their training sessions are "open only to licensed prosecutors," that's impossible to say. Grits is a bit dumbfounded that TDCAA would continue to use this fellow as a trainer after the Court of Criminal Appeals cited him for false testimony in 2010, much less honor him with an award. Merillat has been a go-to expert for prosecutors in the sentencing phase of capital trials for years - his schtick is to help prove up "future dangerousness" of those locked up with life sentences - and there's no telling in how many cases he's provided similarly wrong testimony. And of course, he's not the only "expert" Texas courts have found to have given bogus testimony on "future dangerousness" in capital trials.

In an April 2010 article for the Bar Association, Merillat described his future dangerousness testimony and suggested that "A benefit to you readers who are on the defense bar [from reading his article] is that you can examine and dissect this information, put your heads together, and come up with ways to rebut my testimony and convince jurors that I am a crackpot." Two months later, the Court of Criminal Appeals ruled Merillat gave false testimony when he claimed, as he did in that article, that "Capital murderers are not singled-out for special precautionary custody while in prison" That's a pretty short turnaround from issuing challenges to the defense bar to having his testimony discredited by the state's highest criminal court.

With California de-incarcerating, Texas leads states with most prisoners

Texas now has the largest prison population of any state after California reduced its prison population by tens of thousands, as directed by a federal court order. Reported the Sacramento Bee:

California used to have the nation's largest state prison system, topping 173,000 inmates at its peak in 2006. But since a law took effect last year that shifts responsibility for less serious criminals to county jails, the state has reduced its prison population and is no longer the largest in the nation.

California now has fewer than 136,000 state inmates, eclipsed by about 154,000 in Texas. Florida previously was third, according to 2010 figures from the federal Bureau of Justice Statistics, and currently has about 100,000 inmates.

The reduction in California was ordered by federal judges in a decision backed last year by the U.S. Supreme Court. The courts ruled crowded prisons were causing poor care of sick and mentally ill inmates.

For the record, California's population is nearly half-again as big as Texas' (49% larger, according to the 2010 census), so for our prison population to outstrip their's speaks volumes about overincarceration here.

Comparing inmate population estimates in the story for the four largest states in the 2010 census makes the case even more starkly: Texas imprisons our citizenry 69% more frequently than in California, and at more than twice the rate as New York state. This table compares 2010 census population and crime rates to the approximate number of people in prison for the four largest US states (prisoner totals rounded to match rounded totals from the SacBee article; crime rate source here).


Notice that New York's violent and property crime rates per 100,000 people are substantially lower than here in Texas despite us locking up twice as many people per capita. Indeed, all these states see less property crime per capita than does Texas, and only Florida (another high-incarceration rate state) has a higher violent crime rate among Texas' big-state peers.

The other day Grits ran through a series of hypotheses regarding why crime has continued to decline nationwide despite what appear to be countervailing economic and sociological trends. For those who believe that crime has declined mainly because of "tuff on crime" strategies by the government locking up large numbers of criminals, how do you reconcile New York's success at crime reduction with that state's relatively low incarceration levels? If locking up more people improves safety, why aren't Texas' crime rates lower than in California, or in the Empire State?

Use federal grant funds to train forensic scientists

Last week at the Forensic Science Commission's "roundtable," a common lament was that there exists no state-level source of training and continuing education funds for forensic scientists and technicians comparable to those for prosecutors, defense lawyers and judges. Many agencies have slashed or eliminated training budgets, we were told, with the situation especially acute at "fee for service" labs. I'd suggested some of the federal grant funds flowing through the Governor's Criminal Justice Division toward "border security" measures would be a good fit for that purpose. So I was pleased to see this press release announcing training for Texas crime scene investigators financed through the CJD. From the lede:

The Texas Forensic Science Academy (TFSA) at TEEX has received a $425,000 training grant from the Governor’s Office, Texas Criminal Justice Division. The grant will allow TFSA to deliver 27 tuition-free courses to over 540 crime scene investigators across the State of Texas. The grant also provides funding to convert its entry-level Basic Criminal Investigation course to an on-line course for easier access statewide.

After Texas eliminated federal grant funds to the state's regional drug task forces in 2006, Gov. Rick Perry shifted a great deal of money which previously sustained them to various border operations by DPS and pork-barrel grants to local agencies, some of which have been criticized for delivering little bang for the buck. Grits has little doubt that money would be better spent ensuring forensic scientists have adequate training (not to mention bolstering indigent defense), and am glad to see the funds going toward that purpose. The same pot of money should be used to improve training in other forensic fields.

Uncertainty at key committee chair slots clouds criminal-justice expectations

Brandi Grissom at the Texas Tribune a couple of weeks ago had an article first published behind their Texas Weekly paywall discussing the approaching transition in leadership on criminal justice issues at the Texas Legislature. Grits failed to mention the story when it came out in part because, among folks who work on the subjects this blog covers, uncertainty surrounding legislative leadership has for many months hovered over nearly every conversation. It's not "news," exactly, but neither will (nor can) the issue go away except with passage of time. Everywhere I've gone recently, it seems, someone brings up the question, so let's pose it: Who will chair the House Corrections, House Criminal Jurisprudence, and Senate Criminal Justice Committees next session?

The Case of the Missing Reformers
On the House side, both committees lose their chairmen this election cycle, with Criminal Jurisprudence also losing its vice chair. There are few obvious candidates to fill either slot as able or experienced as those departing, so either someone will surprise us or a leadership vacuum could form.

Corrections Chair Jerry Madden is responsible with state Sen. John Whitmire for Texas' major de-incarceration reforms passed in 2007 and has immersed himself deeply into the issues and agencies within that committee's jurisdiction. His departure will be a profound loss, especially if his replacement does not support continuing and extending Madden's work.

The problem is just as pronounced in Criminal Jurisprudence, where Chairman Pete Gallego retired to run for Congress. All the current heavyweights and senior members will soon be gone and the committee completely revamped. The absence of Reps Hartnett and Aliseda will be particularly hard-felt losses in terms of smarts, experience and gravitas. Chairman Gallego carried many of the innocence-related bills that passed in 2009 and 2011, including eyewitness ID reform, corroboration for jailhouse snitches, and expanding access to post-conviction DNA testing. Who if anyone is prepared to become a comparable champion in that slot?  ¿Quien sabe?

The Case of the Missing Gatekeepers
Besides any proactive legislation, there's also the arguably just as important gatekeeper role that a strong chairman must play, a role best served by a chair who's developed sufficient policy expertise (both on their own and within their staff) to vet proposals and cull as much of the foolish, political stuff as possible. This is an incredibly important but under-appreciated role because a lot of bills filed on criminal justice topics are simply terrible ideas suggested by ill-informed or self-interested people.

My principal critique of Pete Gallego's chairmanship was that he refused to play a significant gatekeeper role on criminal-penalty enhancements, basically deferring to the "will of the members," as they say, whose knee-jerk reaction was too often to criminalize and punish anything they didn't like, usually with a first-order assumption that harsher punishment is "better" punishment. (Typically, the Legislative Budget Board claims that this doesn't cost anything.) For the most part Chairman Gallego let that gatekeeper task fall unhappily to Criminal Justice Committee Chairman John Whitmire in the Senate, whose lonely but heroic efforts to mitigate the wave of criminal penalty enhancements coming out of the Texas House over the last decade go too-much unappreciated.

John Whitmire's long view
Speaking of whom, on the eastern end of the capitol, state Sen. John Whitmire has commanded the Criminal Justice Committee for years. But if Lt. Gov. Dewhurst wins his runoff and someone else takes his place, that chairmanship could be one that shifts to a Republican. In that case, some statehouse wags suggest state Sen. Joan Huffman as a possible replacement. I don't always agree with Sen. Whitmire, but from a perspective of both legislative experience and institutional memory, on its face that'd be a huge loss. It also would call into question whether Texas will continue down a reformist path or begin building more prison units.

Sen. Whitmire famously  partnered with Rep. Jerry Madden to pass Texas' much-vaunted de-incarceration reforms, as well as helping shepherd Texas' innocence bills through the senate side of the process. Some fear those causes would find a much less sympathetic ear if Huffman were chair, and certainly she has not to date demonstrated similar priorities. OTOH, she's expressed reluctant support for the 2007 probation reforms and voted for much of Texas' recent "innocence" legislation, after opposing or seeking to weaken pieces of it. But the even bigger loss would be in sheer institutional memory: Whitmire chaired that committee (with John Bradley as his legal counsel, ironically) when Texas rewrote our penal code in 1993, setting the stage to fill the vast new prisons authorized for construction during the Ann Richards era. So when, in the wake of the 2003 budget crunch, the Lege of necessity began tinkering with the system, culminating in Texas' much-praised 2007 prison diversion package, Whitmire exhibited a scope of institutional knowledge coupled with a capacity for legislative nuance that few in the capitol could match.

'Heavy is the head that wears the crown'
All that said, heavy is the head that wears the crown. As any recent GOP House Corrections Committee Chairman (Madden, Allen, Haggerty, Hightower) would tell Sen. Huffmn, practical reality on many of these questions quickly trumps ideology when it comes to legislative policy and budget writing. Naysaying and bomb throwing is something one does from the bleachers: As chair, IMO the budget crunch combined with the vast expense and immense, bloated size of the justice system would force upon Huffman the same set of Hobson's choices imposed on Texas' Republican legislative leadership for the last decade. If that's true, her past, publicly expressed positions might not be an accurate predictor of how Sen. Huffman would behave as chair.

For that matter, Whitmire is not going anywhere and he remains arguably one of the most effective senators in the upper chamber, even with Dems in the minority. Time will tell. And of course, if Lt. Gov. Dewhurst fails to win his runoff - not a sure thing, by a longshot - it may be a moot point anyway.

'Waiting is the hardest part'
Tom Petty warbled that "the waiting is the hardest part," and that's the situation here: We'll know after the runoffs whether there will be a new Lt. Governor. (One supposes Dewhurst's replacement could re-up Whitmire's chairmanship, though conventional wisdom says he or she would shuffle the deck and name their own people.) But on the House side, uncertainty will remain until late January of next year, perhaps even prolonged by Rep. Bryan Hughes' announced Speaker's race. (Those East Texas boys are troublemakers, aren't they?) By that time, new House chairs will be learning of their responsibilities just at the moment when the process begins in earnest, with little planning or lead-in time to approach the session with a coherent, consistent strategy. The risk is that chairs thus appointed are weaker, not well-informed on the system's details, and worst of all reactive, failing to set an agenda or play a gatekeeper role.

To Grits, there's another factor even more disconcerting than the leadership transition: The Texas House next year will include a sizable population of freshmen and sophomores who in many cases barely yet understand how the legislative process works, much less the criminal-justice system, and are ill-suited to take on the types of leadership roles that will be much more immediately thrust upon them, not just in 2013 but also the years immediately ahead. This is one of several reasons Grits is not a fan of term limits: The learning curve is too steep for legislators to learn all they need to run complex corrections (or health, or education, or transportation) systems in just a few years of part-time attention. The Whitmires, Maddens and Gallegos of the world have been thinking about these topics nearly round the clock for many years. Anyone who replaces them has a lot of quick thinking to do, and that's if they hope to merely tread water.

Louisiana's de-incarceration reforms

From a sidebar to a story in the New Orleans Times-Picayune, here's a summary of the just-passed sentencing reforms from the Bayou State aimed at reducing their nation-leading incarceration rate:

Changes to Louisiana sentencing and parole laws in 2012

Amid increasing attention to Louisiana's world-leading incarceration rate, the 2012 Legislature adopted and Gov. Bobby Jindal has signed several measures that alter the state's sentencing and parole laws, primarily for nonviolent offenders whose crimes involved drugs or property. The Louisiana Sentencing Commission recommended nearly all of the changes. They include:

• Merger of separate pardon and parole boards (House Bill 518): Two members will be added to the five-member pardon board, and the seven-person panel, sitting as a "parole committee," will decide whether to release eligible prisoners on parole. The existing parole board will cease to exist.
• Discretion on mandatory minimums (House Bill 1068): Prosecutors, defendants and judges are given authority to make pre-trial plea agreements or post-trial sentencing agreements that call for lesser punishment than the minimum required in existing criminal statutes.
• Parole for nonviolent, second-time offenders (House Bill 1026): Certain second-time offenders, excluding those whose crimes were sexual in nature, could be eligible for a parole hearing after serving one-third of their sentences, rather than the current requirement of one-half.
• Parole for nonviolent offenders sentenced to life (House Bill 543): Certain nonviolent, good-behavior, low-risk lifers will be eligible for release earlier, including for the first time those sentenced to life without the possibility of parole. The change excludes anyone whose crimes were sexual in nature. Inmates who were sentenced between the ages of 18 and 24 must serve at least 25 years to be eligible. Those sentenced between ages 25 and 34 must serve at least 20 years. Those sentenced between ages 35 and 49 must serve at least 15 years. Those sentenced at age 50 or older must serve at least 10 years.
• Expanded re-entry courts (House Bill 521): A pilot court program that assists released nonviolent offenders with job training and other re-entry issues will be expanded into two new judicial districts.
• Streamlined discipline for offenders on probation (House Bill 512): In certain instances, officers will be able to use administrative sanctions to discipline offenders without taking them back to court.

See another summary of the legislation from Pardon Power.

Ward: Sunset may shift parolee supervision back to parole board

Mike Ward at the Statesman has more coverage of the recent TDCJ Sunset hearing, though IMO he overstates the chance that the parole board's authority will be substantially expanded. The story opens:

Discretionary funds from commissary to asset forfeiture money bolster local law enforcement budgets

At the Houston Chronicle on Sunday, James Pinkerton offered up a rare adumbration of all 18 county-level pots of "discretionary funds" available in particular to the District Attorney and the Sheriff. ("Harris County has access to millions in discretionary funds," June 10) The sources? "The discretionary funds are raked in after seizures from gambling raids, drug busts, or amassed from fees for writing hot checks or evading county highway tolls."

Further, "Seven of the 18 funds, including a million-dollar fund overseen by Harris County Attorney Vince Ryan, are not required to be audited and don't have to report their spending." Countywide, "The 18 funds - controlled by the sheriff, district attorney, constables, county commissioners, county attorney and fire marshal - hold a total of $38 million, according to the most recent accounting by county auditors."

At the Harris County Sheriff, the jail commissary is the single biggest revenue producer and the Sheriff controls revenue from that line item entirely. (Funds from phone services go into the county general fund.)  Sheriff's spokesman Alan Bernstein commented to Grits that with a total annual budget of $392 million, the $16.1 million in discretionary funds isn't much of a "'cash stash,' as the story calls it," which is true as far as it goes. It's also a fair amount of unfettered money during a tight budget environment. Bernstein says the Sheriff has not spent discretionary funds on either overtime at the jail nor for staffing patrols.

Sheriff Garcia's spokesman told the Chronicle such funds are justified because "criminals are helping to pick up part of the tab." But in the case of commissary profits (and phone service) it's more likely the alleged criminal's family footing the bill, which isn't exactly the same thing.

Hypothesizing reasons for continued crime declines

Reported crime including both violent and property crime continued its remarkable decline in the first half of 2011, reported the FBI:

Preliminary figures indicate that, as a whole, law enforcement agencies throughout the Nation reported a decrease of 6.4 percent in the number of violent crimes brought to their attention for the first 6 months of 2011 when compared with figures reported for the same time in 2010. The violent crime category includes murder, forcible rape, robbery, and aggravated assault. The number of property crimes in the United States from January to June of 2011 decreased 3.7 percent when compared with data from the same time period in 2010. Property crimes include burglary, larceny-theft, and motor vehicle theft. 

Here's a table including Texas cities over 100,000 people comparing reported crime rates for the first six months of 2010 and 2011. Notably, a few towns where murders had virtually bottomed out saw significant year-to-year increases, including Amarillo (3-8), Arlington (6-12), Beaumont (3-7), and El Paso (1-14). But overall murders declined because of offsetting reductions in other jurisdictions, particularly Houston (143-90) and Fort Worth (32-18), along with more modest declines in most other places.

Most Texas jurisdictions saw declines in reported violent and property crime in the first six months of 2011 compared to 2010. Despite reduced federal grant funds. Despite a faltering economy and rising wealth disparity. Despite increased gun ownership. Despite lofty drop-out rates in high schools. Despite depopulating Texas youth prisons, reducing their inmate numbers from 5,000 to 1,100 since 2007. Despite Texas releasing more than 70,000 adult inmates per year from prison back into their home communities. All that's going on and crime is still declining. So what's causing it?

Grits believes the answer lies in a confluence of several possible reasons. First, it must be acknowledged, the best econometric estimates (Spelman, Levitt) say around one-quarter to a third of crime reduction in the '90s came from locking up more criminals for longer stretches, which makes sense given the vast scope of expanded incapacitation. But those same models showed incarceration levels had long since passed the point of maximizing marginal utility (in the economists' jargon). Based purely on a cost-benefit equation, wrote Spelman, "Enormous cutbacks - reductions of 50% or more in the prison population - are not difficult to justify and would probably save the US public billions of dollars each year. Certainly there is little economic justification for continuing to build."

So those who argue most strongly for the effectiveness of incarceration at reducing crime say we've already gone to that well too often. And anyway, in Texas crime continued to decline even after we stopped building new prisons. Incarcerating ever-more people can't be the only factor. So the question remains, if expanded imprisonment accounted for a quarter to a third of the '90s crime decline, what accounted for the rest, and why does crime keep falling now that incarceration (even in Texas) has leveled off?

Our friends at the Texas Legislature might suggest that new probation and parole programming effectively reduced incarceration levels without harming public safety, and because I supported them, I'd love to give the 2007 reforms credit. But the trend is national, not Texas-specific, so even if that had a positive effect, it can't explain it all.

My own favorite theory: Young people spend a great deal of time engaged with technology like the internet, video games and cell phones that didn't exist 25 years ago. These activities occupy time of teens and young adults who are the most likely to commit crimes. The kid perfecting his skills at Grand Theft Auto V may not be preparing himself for the job market, but he isn't out stealing my car.

On property crimes, there's an hypothesis that the rise of cheap, mass-market goods has contributed to reducing theft because lots of things we own have relatively low resale value and simply aren't worth stealing anymore. The list of items most often stolen bears out that trend, consisting mainly of things that aren't cheaply produced or where brand value trumps utility among callow minds.

Some theorize that improved pharmacology reduced crime, both thanks to improved antipsychotic and anti-depression drugs for adults and potentially because of earlier diagnosis and more frequent medication of mental illness among juveniles. At a gut level, Grits remains skeptical of that explanation, but there's inarguably a time correlation.

James Q. Wilson has cited research to argue 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.

Professor Steven Levitt, co-author of the book Freakonomics, has provocatively argued (to paraphrase) that legalization of abortion and expanded access to family planning services during the 1970s reduced crime in the 1990s by enhancing women's control over their reproductive cycle and thus reducing the number of unplanned, unwanted children coming of age in that period.

Our friends at the NRA might suggest that the expansion of "concealed carry" laws to three dozen states contributed to deterrence, though that explanation fails to explain parallel declines in the other states and Canada, and Grits doesn't believe the practice is widespread enough to explain the observed crime decline.

Similarly, for Texas and other states with significant Latin American immigration, legal and otherwise, immigrants tend to commit crimes at much lower rates than US citizens and their out-sized presence could explain lower crime rates. But just as with concealed carry laws, that explanation doesn't account for (larger) crime drops in New York and other parts of the country that didn't see the same immigration wave. (Notice the theme: For several of these it's difficult if not impossible to link correlation and causation.)

In Texas (Grits can't speak for elsewhere), one seldom discussed factor may be the evolving makeup, culture and revenue streams of criminal gangs. Historically, conventional wisdom held that criminal street gangs primarily sought to nail down turf in their hometown for retail drug sales and sometimes extortion, tagging neighborhoods to mark their territory, etc.. But in Texas today the most important gangs are prison-affiliated organizations, some of which have become arms of transnational drug smuggling cartels out of Mexico, sometimes even working as paid assassins south of the border. Their focus is less on controlling a piece of turf in a Texas town so much as maintaining a transit corridor through which drugs may be smuggled to the rest of the country. They're still dangerous criminals but the focus of their business (and often, their violence) has changed along with the sources of prohibition-driven profits.

Finally, there are usually a few, typically anonymous zealots/trolls who show up whenever FBI crime data are reported to claim that they far understate actual crime, much of which, the argument goes, remains forever unreported. (Often this absurd construction attributes unreported crime to the success of the "stop snitching" meme.) But Grits believes those arguments are debunked by essentially similar trends demonstrated in national crime victimization surveys, which also show crime declining. I'm willing to believe numbers are juked in some jurisdictions, but that's something that must be demonstrated, not merely alleged.

Why do you believe crime is declining? Are the reasons related to things the justice system is or isn't doing, or something else entirely? And even if the answer is "something else entirely," is that something that government can double down on to reduce crime, or simply a happy, random accident that cannot be intentionally replicated? Your guess is as good as mine, so what's yours?

H/T: Sentencing Law & Policy

Who gets pardoned?

NBC Prime Time News and Prof. P.S. Ruckman at the blog Pardon Power recently highlighted the pending pardon application of Stephen Arrington, a former Navy diver once convicted of drug smuggling who went on to become a Cousteau Society expedition leader and founder of youth-oriented nonprofits in the US and Fiji. In an email notifying me of the story, Ruckman asked simply, "Why not?"

See also recent blog posts on clemency-related subjects from your correspondent at the Pardon O. Henry! blog:

• Clemency in a time of crisis
• Iconic toy rooted in presidential 'pardon'
• The conservative case for the pardon power
• 'There's no reasonable person who really believes Clarence Aaron should die in prison'
• Pardon Power recites O. Henry history
• FAMM calls for investigation of DOJ Pardon Office

The academic article described in that first bulleted post is an especially timely exposition on the subject and well worth the read for anyone interested in clemency topics.

RELATED: The case for clemency: Pardon power too-long ignored among checks and balances

DPS on the Rio Grande: Border security, economic goals diverge

Texas has spent some $600 million on "border security" since 2007 on the ostensible grounds that the state must do the job if the feds won't. But one can point to little public safety payoff from the spending that's remotely worth such vast sums, and meanwhile more fundamental problems at the border go unaddressed.

The SA Express-News yesterday featured a pair of stories giving a good deal of detail about the day to day activities of DPS border security, which some in local law enforcement have criticized as redundant and taking away from the agency's historic mission:

• New frontier for DPS is stopping smuggling
• Border security team in Austin focuses on Valley

The latter story offered this description of DPS' big-brotherish intelligence-gathering efforts related to border security:

The nerve center of the Texas Department of Public Safety's strategy for securing the Rio Grande is the Border Security Operations Center, an unassuming building tucked behind the DPS headquarters.

Opened in 2010, the BSOC is staffed by 18 people, including nine analysts and a Texas Ranger captain, as well as representatives from federal law enforcement agencies. They process tens of thousands of pieces of information from videos taken by helicopter pilots, images snapped by remote cameras, and reports from state troopers and local law enforcement about traffic stops.

The data is fed into TxMap system, a program that allows analysts in Austin and at seven joint operations intelligence centers along the border to visualize information such as pursuits, drug busts and where DPS assets are deployed.

The information is also distributed to local, state and federal agencies.

The main article focues in part on the culture and mission shift at DPS as a result of Texas' nine-figure border-security investment:

The Legislature has provided more than $600 million for border security since 2007, with most of the money given to DPS to target drug and human smugglers. The border operation today represents a small army, with specialized Ranger Reconnaissance Teams, new intelligence centers, patrol boats, helicopters and surveillance cameras watching for traffickers.

Even a high-altitude spy plane soon will be deployed.

It's a departure from DPS' traditional roles as highway patrolmen and a support service to local law enforcement agencies.

The so-called Ranger Reconnaissance Teams "have seized 78,000 pounds of drugs and arrested 76 people, according to DPS. They've also referred 1,103 illegal immigrants to federal agents." Some, though, questioned:

the need for DPS' involvement in border security when the Border Patrol is at an all-time high in personnel and funding. Meanwhile, they say, there is no indication that beefing up border security has hurt Mexico's drug cartels. 

“That money could perhaps be used for other purposes, as we already have Texas Parks and Wildlife” patrolling the river in boats, said Zapata County Sheriff Sigifredo Gonzalez. “Ranger Recon Teams? I don't really know what they've done as we're not privy to that information. DPS is doing the best job they can, but I do, however, feel that their way of working is totally different from local law enforcement.”

We also learn that, after canceling an earlier program to install dozens of cameras along the border, DPS is doubling down on the idea with "Operation Drawbridge," in which:

the department is installing 500 cameras along the border, part of an electronic monitoring program called Operation Drawbridge. It's an update of the much-criticized Texas Border Watch Program, a multimillion-dollar effort by the state to set up video cameras along the border. It was recently canceled after only a few dozen cameras were put in place over more than three years and unimpressive results.

When a Drawbridge camera is triggered, it sends an image to DPS' Border Security Operations Center in Austin. If it shows something of interest — immigrants or drug mules — the image is saved and added to the stream of information DPS shares with other agencies.

Such "border security" efforts, though, are dealing with symptoms - in a particularly ham-handed way, no less - that can't mitigate more fundamental trends at the border exemplified in another recent story (June 1) from the Express-News business section, "Bill aimed at reducing wait times at the border." Give it a quick read; in the big picture, the problem Sen. John Cornyn aims to address in that story is more critical to border security than any law-enforcement angle.

Here's the bottom-line dynamic causing this now-chronic situation (and Grits has been discussing these issues for years): US trade with Asia is at an all-time high and growing each year at a massive rate, but the United States is building no new Pacific port capacity for reasons related to historic land use, tourism, and environmental concerns. Meanwhile, Mexico is constructing a series of super ports on its western coast, along with a massive series of highways funneling cargo mainly toward Nuevo Laredo (read: I-35) and the various bridges crossing into Texas.

The volume of legitimate north-bound traffic is so vast that rigorously searching all of it for drugs and contraband is a fantasy, particularly when, as reported in the story, the Customs and Border Protection agency is 6,000 agents short. DPS is spending all this money to police the areas in between the checkpoints, which is also mainly where the Border Patrol beefed up during its massive recent hiring binge. But the largest volume of contraband always has and always will come over the international bridges right past federal (and now state) officials because the volume is simply too high to catch all of it. Moreover, profit margins on wholesale drugs are high enough to incur losses without undermining their business model.

Meanwhile, the existence of maquiladora plants operated by US companies on the Mexican side of the river - not to mention increasing export volumes as the urban, Mexican middle class has expanded post-NAFTA - mean southbound commercial traffic is growing as well. These trends are not reversing, and even if they did (perhaps in some nativist, "shut down the border" fantasy), Texas' economy would be among those harmed the most.

Seldom discussed, but critically, anti-contraband measures contribute tremendously to backed up northbound traffic at international bridges, exacerbating the infrastructure shortcomings Sen. Cornyn and border officials lamented in the June 1st story. But media and policymakers never seem to connect the dots. Given the enormous expense and so few tangible public safety benefits, Grits considers Texas' border security spending almost entirely wasted. This is a federal issue and the main thing the feds need to do is dramatically increase capacity - both through expanded infrastructure and customs staffing - to process vastly more legitimate border traffic in both directions.

Posthumous exoneree Tim Cole's memory honored in Lubbock

In Lubbock, the city has approved a memorial for Timothy Cole, who died in prison after being falsely convicted of rape and was later posthumously exonerated. Reported the Lubbock Avalanche Journal:

A bronze relief sculpture and granite marker will pay permanent tribute to Timothy Cole, just blocks away from the Texas Tech bar district where he was arrested for a crime he didn’t commit.
His brother, Cory Sessions, helped sway the Lubbock City Council to support the memorial to his brother, who died imprisoned in 1999 after being wrongfully convicted in the 1986 sexual assault of a fellow Tech student.

“Tim may be remembered for things that happened after his life, but we remember him for what happened during his life,” Sessions said Thursday morning at the council meeting. “The most important part of his headstone is the dash, and that’s what we remember Tim by.”

The council approved a renewed proposal by Councilman Todd Klein to honor Cole with a memorial on city property to be designated as a park at 19th Street and University Avenue.

Klein designed the proposal with the help of attorney Kevin Glasheen, who has represented several wrongfully convicted people seeking compensation, including the Cole family.

Glasheen said his firm would pay the estimated $25,000 for the monument, a granite marker with a bronze relief sculpture of Cole and text similar or identical to the text on a state historical marker located near Cole’s Fort Worth grave site.

He praised Cole for his demonstration of character throughout his trial and imprisonment, recalling how Cole would not admit guilt even if it meant he had a chance for parole.

“That kind of character and integrity is worthy of honor,” Glasheen said.

Suing over false police tips, why Dallas PD quit using spike strips, Kerry Cook gets DNA test, and more

Just a few odds and ends that didn't make it this week into their own, full posts:

• A court has ordered DNA testing in Kerry Max Cook's case, potentially presaging a long overdue habeas writ based on actual innocence for the Tyler man who spent 19 years on death row.
• A prosecutor in El Paso allegedly took bribes to dismiss family violence cases.
• More on the lawsuit alleging employment  retaliation by former TDCJ flack Michelle Lyons.
• Dallas PD has ceased using spike strips to end high-speed chases because of dangers to officers and the public. Fort Worth may follow suit: “As pursuit policies become more restrictive resulting in their reductions, stop sticks may be phased out throughout all of law enforcement,” Fort Worth police spokesman Pedro Criado said in an email. “It’s not worth injuring or killing an officer over. The debate has reached the Fort Worth Police Department.”
• A judge upheld the Texas prison system's ban on certain politically oriented books brought by Prison Legal News. Reportedly, "TDCJ has approved about 80,000 of more than 92,000 books sent to its inmates"
• Suing for a false police tip: After a false allegation regarding mass graves on their property last year from a purported psychic, a Liberty County couple has "filed a lawsuit against the Liberty County Sheriff's Office, the woman who first called in with a tip, and a number of media outlets that allegedly reported that dozens of bodies, including those of children, had been discovered"
• See a story on a Mexican-born artist/printmaker portraying Juárez drug war violence.
• The Christian Broadcasting Network, of all sources, has come out with a series titled "Nation of Criminals." Here are the titles so far:

Selling Prisons 'for Profit'
Gibson’s Blues: Endless Laws Criminalizing Business 
Web of Laws Creating Hosts of 'Accidental Criminals'   
'Overcriminalization' Making Us a Nation of Felons?

Web clips from TDCJ Sunset hearing

The group Texas IMPACT put snippets of video on their website of some of the reform-minded testimony at this week's Sunset Commission hearing focused on the Department of Criminal Justice, (discussed on Grits here) for those who didn't get to attend.

Go here to see the full, unexpurgated hours-long June 5 hearing, for those who'd like to watch the whole thing online.

Don't look now, the government is watching ... do you feel safer?

According to Men's Health magazine, four of the 15 American cities under the most government surveillance are in Texas:

• Houston (2)
• Dallas (6)
• Austin (7)
• Corpus Christi (13)
• El Paso (26)

You might expect more of El Paso would be under surveillance more than other cities because of military and border security installations and concern over feuding drug cartels in Juarez, but they're relatively far down the list. As per the question in the headline, to folks in Houston, Dallas, Austin and Corpus: Does so much surveillance make you feel a) more safe, b) less safe, or just c) like the government wasted your tax dollars on something pointless? Tell us in the comments, or feel free to suggest your own "d."

Ex-TDCJ flack sues agency over alleged retaliatory firing

Former TDCJ public information office Michelle Lyons has filed a federal lawsuit alleging she was fired in retaliation for revealing information about irregularities in agency time keeping, The Backgate blog reports. This should be interesting. Lyons is a woman who at this point likely knows where a lot of (figurative) bodies are buried.

Prisoners released in 2009 cost Texas $620 million extra thanks to increased length of incarceration

Inmates' average total length of stay in Texas prisons has increased 32% since 1990, according to a new report (pdf) from the Pew Center on the States, compared to a 36% increase nationwide. (See a press release touting the national study and a Texas-specific fact sheet.) Texas prisoners' typical length of incarceration falls just below the national average at 2.8 years compared to 2.9. On average, a Texas prisoner released in 2009 served eight months longer than his or her counterpart released in 1990.

By contrast, noted the New York Times, "In Florida, the average time served rose by 166 percent; in New York, 2 percent." (Notably, New York's crime declines have led the nation, flying in the face of the notion that longer incarceration times are the cause of modern crime reduction.)

Grits finds this data fascinating. Texas sentence lengths (on paper) declined significantly over the 20-year period, while the proportion of sentences prisoners served rose by even more and actual time served increased. The bulk of the Texas increase occurred in the 1990s, when the proportion of sentences served for violent and nonviolent crimes in Texas increased 101% and 99%, respectively.

For violent offenders, those trends flattened out after 2000, with sentences and the proportion served staying about the same ever since. But sentencing for nonviolent offenders remained dynamic and began to reverse itself. From 2000 to 2009, the average sentence length for nonviolent offenders decreased 68% (for reasons which elude me), but offenders served a greater proportion of their allotted time, so the decline in incarceration length came to just 37% over that period for nonviolent offenders.

All told, Texas prisoners released in 2009 who'd been convicted of a violent crime stayed in prison 44% longer than those released in 1990, while drug and property offenders served 14% and 15% longer sentences, respectively. The study was able to calculate that, for Texas prisoners released in 2009, the 8 months extra average length of stay compared to 1990 cost taxpayers an extra $620.1 million.

The report closes out discussing strategies used in various states recently to reduce incarceration times:

• Reclassifying offense types
• Amending mandatory minimum sentencing laws
• Using risk-based sentencing
• Expanding earned-time opportunities
• Changing parole policy and practices
• Making administrative changes to parole
• Enacting revocation caps

MORE: From KUT.

Texas pays to train prisoner for job the state then won't let him have

The Austin Statesman's Eric Dexheimer has an item about an ex-TDCJ prisoner who was trained while in prison as a barber on the taxpayers dime but was then turned down for licensing ("State government giveth, then taketh away," June 6). Asked Dexheimer, "Why would one branch of the state government buy a citizen something with public money only to then to have another branch take it away a few months later?" Why, indeed!

in an unusually eloquent presentation to Department of Licensing and Regulation commissioners, [Lynn] Mays noted that the cost of barber training wasn’t the only bill citizens had footed on his behalf:

“When I was incarcerated, I was in a correctional facility that was run by the state of Texas. Taxpayer money paid for programs that are called rehabilitation programs, therapeutic programs, that I successfully went through…I’m not here because I’ve broken the law; I’m here because I want to work. I’m asking for a chance to prove the system works.”

They denied him, anyway. The reason:

“Barbers have direct contact with members of the general public, often in settings with no one else present, and a person with a predisposition for crimes involving prohibited sexual conduct would have the opportunity to engage in further similar conduct.”

Mays, agency staff concluded, had not been out of prison enough time to demonstrate that he’d been rehabilitated.

Ironically, at the events Grits attended this week on forensic science, a frequent refrain lamenting the lack of qualifications in certain fields was that people are required to be licensed to cut hair but need no particular certification to perform most forensic analyses with the notable exception of DNA testing. Perhaps Mr. Mays should pursue a job at a crime lab?

MORE: From Texas Watchdog.

External review suggested for botched Austin Yogurt Shop investigation

Grits was fascinated to see this week that "The Austin Public Safety Commission on Monday passed a resolution that would establish a process and provide funding for the external review of selected major cold cases, starting with the infamous 1991 yogurt shop slayings." Here's why:

Vice Chairman Kim Rossmo ... [gave] a short presentation on the weak evidence that took two men to trial in the notorious murder investigation, which he described in a written statement in advance of the meeting as having "suffered from ‘tunnel vision' and ‘group think.' "

"It appears detectives are trying to twist the evidence to fit pre-existing theories, rather than adjusting their beliefs to accommodate the new DNA evidence," wrote Rossmo, a Texas State University criminology professor and former police detective. "A proper investigation requires an open mind and a constant exploration of alternative suspects. It appears this has not occurred in any meaningful way in the tragic Yogurt Shop Murders case."

At the meeting, Rossmo argued that:

"Groupthink" within the Police Department has hindered progress in the investigation, Rossmo told fellow commissioners. He said that investigators had failed to take a fresh look at the case, even as poor evidence gathered from a crime scene damaged from fire and water had contributed to faulty theories against the four teenagers originally arrested in the crimes, Rossmo said.

More than 50 people interviewed had falsely confessed to committing the crimes, but police had relied heavily on the confessions of the two teens whose convictions were later overturned, Rossmo said.

"There are strong emotions surrounding this case," he said. "However, strong emotions have been shown to interfere with clear thinking."

The Statesman noted that "Some commissioners said they did not agree with Rossmo's criticisms but voted in favor of the resolution because they said a fresh set of eyes could develop new leads." (See more from the Austin Chronicle here and here)

The Yogurt Shop confessions were so notoriously unreliable that, when the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit wanted to explore the subject of false confessions, they brought in a national expert who described the case as a textbook example of how they are obtained.

Likely Rossmo's suggested review stems from concerns raised in December by the Austin Chronicle's Jordan Smith that tunnel vision and hubris prevented police and prosecutors from pursuing other, more likely suspects even after DNA evidence disproved the state's theory and contradicted the confessions. Her reporting identified other problems besides false confessions, like APD reworking forensic results to support their weak case:

For example, the city's fire investigator, Melvin Stahl, concluded from reviewing the crime scene that the fire had started in a corner of the shop where supplies were stored. Later, after investigators obtained from [Michael] Scott a confession that he started the fire on the bodies of the girls by using an accelerant, investigators went out and got a second opinion from ATF agent Marshall Littleton that matched Scott's confession; Stahl then recanted his conclusions and reworked his theory to match Littleton's. "That stunk to high heaven," says [retired APD Sgt. John ] Jones. "That bothered me."

Having now learned much more from the Forensic Science Commission's Todd Willingham/Ernest Willis investigation about how flaky and unscientific arson investigations were in Texas back in the early '90s, we can't be surprised at such shenanigans, but they indicate how the law enforcement first identified a theory then cherry-picked or manufactured evidence to support it instead of looking at the evidence and deriving conclusions from it.

The case deserves the external review and I hope the commission does a thorough job. I also hope that prosecutors and APD can avoid taking justified criticism personally and reacting with hostility and defensiveness, which is typically what's happened before now. The case was botched, the prosecution was botched, and afterward officials seemed more interested in justifying their errors than correcting them or pursuing other viable suspects.

OTOH, it's been more than 20 years. Why review it now? Because those who do not learn from their mistakes are inevitably doomed to repeat them.

Forensic seminar materials, roundtable

For those who couldn't attend the event, here's a link to all the power point presentations and handouts from the forensic science seminar sponsored Monday and Tuesday by the TX Court of Criminal Appeals Criminal Justice Integrity Unit and the Forensic Science Commission.

In addition, yesterday your correspondent participated in an all-day stakeholder "roundtable" sponsored by the Forensic Science Commission consisting of forensic scientists (half of the invited bunch), prosecutors, attorneys judges and a few advocates like myself. The goal was to identify strengths and weaknesses of forensic science in Texas and outline a path for reform.

Grits promised not to blog details so discussions could be open and probative, but I did want to congratulate the FSC and especially their staff on a useful and constructive event. I've been working on some of these issues for years and this was the first place I've been where a) all the various constituencies, or most of them, engaged in substantive, detailed conversation about forensic reform topics and b) it was possible to have honest and constructive conversation because nobody was speaking in front of legislators, the FSC, or somebody else they felt they needed to impress. Grits was pleasantly surprised, learned a lot, and hope some of the ideas and suggestions compiled become action items going forward.

This roundtable was originally scheduled nearly three years ago, but when Gov. Perry appointed John Bradley to chair the commission, canceling the event was one of his first acts. So finally, after all this time, it was good to see the project implemented, and IMO well done.