Prison cell phones used to rescue guard: What's a prosecutor to do?

In South Carolina, we learn at the TDCAA website, "Inmates used their illegal cellphones to guide rescue of guard held by armed inmates." (See the story here.) Asks John Stride, "Confiscate their phones and give them good time credit? What would you do?" Good question. Leave your answers in the comments.

FBI spending $1 billion on facial recognition technology

The FBI is spending a billion dollars to implement facial recognition software. This writer says "criminals are really the only ones who should fear the facial recognition program at present, because only mug shots from the national criminal FBI database are being used." That seems a bit naive, to me, considering that as soon as the Texas Legislature removed restrictions on biometric data from drivers licenses, including fingerprint data, the state uploaded the information to so-called "fusion centers" to give the feds access. See more on the new facial recognition program from New Scientist, which notes that "it is easier to match up posed images and the FBI has already partnered with issuers of state drivers' licences for photo comparison."

State Auditor critiques TDCJ oversight of diversion grants to local probation departments

The State Auditor has issued a report (pdf) critical of the Texas Department of Criminal Justice's Community Justice Assistance Division (TDCJ-CJAD), which oversees local probation departments. From the summary:

The Division also should improve its financial and program monitoring to ensure that local departments spend funds from Diversion Programs grants as intended. Specifically:

- Financial Monitoring. The Division's financial monitoring of local departments relies primarily on reviewing the reports from audits of financial statements and compliance-related information that external auditors conduct at local departments. However, the Division's guidance and checklist for those audits do not contain sufficient detail. In addition, the Division does not consistently review the reports from those audits in a timely manner or follow up to determine whether local departments correct issues identified in those audits.

- Program Monitoring. The Division conducts its own program monitoring at local departments. Its program monitoring includes reviewing local departments' compliance with special grant conditions. However, the Division does not determine whether local departments' performance output and outcome reports are accurate, and it does not have an adequate risk assessment to select local departments at which to perform program monitoring.

The Division also should improve its monitoring of available funds to ensure that it maximizes the use of Diversion Program grants.

One particular criticism that Grits has heard before from local probation directors found that: “the Division did not inform all local departments of all evaluation criteria before the local departments submitted their community justice plans. The Division’s instructions to the local departments did not specify the evaluation criteria the Division would use. The State of Texas Contract Management Guide states that 'the solicitation document must advise the respondents how a proposal will be evaluated.'”

Another issue was that TDCJ-CJAD cannot confirm the validity of data reported by local probation departments that's used to determine grant funding:

Program output data in the Actual Program Outputs (APO) system and offender-level data in the Intermediate System (ISYS) that the Division uses to make Diversion Program grant funding decisions may not be accurate.

The local departments enter annual performance data into the APO system. They also enter offender-level data into case management systems, and that data is subsequently transmitted to ISYS. The Division also receives data on monthly offender totals from the local departments and enters that data into a database. The Division compiles the data from those three sources and then uses it to score local departments’ community justice plans and make funding decisions. However, data in the APO system and ISYS may not be accurate. For example, the Harris County Community Supervision and Corrections Department explained to auditors that the data on outputs that it submitted to the APO system was inflated, and the Dallas County Community Supervision and Corrections Department could not provide support for totals it had entered into the APO system. Division management also stated that offender-level data in ISYS was not accurate.

If the Division does not ensure that data from those sources is accurate, that increases the risk that funding decisions could be based on inaccurate data and that funding may not meets the needs of local departments.

Yet another criticism highlighted a problem Grits has frequently complained about related to these diversion grants: "The Division does not have a schedule of sanctions that it can impose on local departments for noncompliance with the terms of their Diversion Program grant agreements." The agency promised that by January 2013 it would put in place a "system of graduated sanctions" for non-compliant departments.

To be fair, there's an extent to which TDCJ-CJAD doesn't have the staff or resources to provide more aggressive oversight of diversion grants or local probation departments generally. In an unrelated story out today in the Houston Chronicle, "Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, said funding cuts have hurt the division's ability to prevent a situation like that of Harris County, noting the agency's staff has fallen from 116 in fiscal year 1998 to 74 as of last November."

TDCJ-CJAD agreed with the state auditor's recommendations, most of them predicting compliance on relatively short timelines, but it's questionable whether the division has sufficient resources to effectively implement them all. TDCJ has always treated probation as a red-headed stepchild, even though far more offenders (three times as many, in fact) are supervised on probation than in prison. TDCJ and the Legislature both consistently prioritize keeping prisons open over strengthening community supervision programs, then everyone wonders why CJAD doesn't perform more aggressive monitoring with 36% fewer employees than they had in 1998. So while I agree with much of what's in the auditor's report, I also recognize that TDCJ-CJAD finds itself between a rock and a budgetary hard place. Oversight of diversion programming should improve, but it can scarcely do so if legislative budget writers and TDCJ administrators don't give them the resources to do so.

'What Texas criminal justice reformers could teach the booming immigrant detention system'

The San Antonio Current has a story with the same title as this post about a panel Grits moderated last week at the UT-Austin LBJ School regarding what the federal immigration detention system could learn from pretrial services programs on the criminal justice side. The article by Michael Barajas opened thusly:

GOP State Rep. Jerry Madden took the helm of the House corrections committee in 2005, just in time for a deeply distressing projection: booming incarceration in our notoriously tough-on-crime state meant Texas would need eight new prisons by 2012, at a cost of about $1 billion. Meanwhile, Madden got stern marching orders from then-House Speaker Tom Craddick.

"Don't build new prisons," Madden recalled last week. "They cost too much."

Pulling from both conservative and liberal playbooks, two years later Texas pushed through landmark criminal justice reforms, shuffling funding to drug and DWI courts, curbing the average time for probation (the prison system's top feeder) and ordering the state parole board to raise its parole rate.

This year, the Texas Department of Criminal Justice's population remained 17,000 prisoners below what state officials had projected, and "right-on-crime" advocates say Texas has saved over $2 billion in the process.

Madden touted the lesson to criminal justice experts and immigration reform advocates from across the country that gathered last week. The forum at UT-Austin's LBJ School, sponsored by Human Rights First, was the first of four being held across the country aimed at carrying prison-reduction strategies over into the nation's booming immigrant detention system, which in 2011, according to the latest Office of Immigration Statistics report, jailed about 429,000 immigrants – a new record, even as illegal border crossers have dropped to a 40-year low.

The U.S. immigration detention network "is a fiscal conservative's nightmare, an absolute nightmare," said Texas criminal justice watchdog Scott Henson, who authors the closely-watched blog Grits for Breakfast. Moderating a panel on detention alternatives, Henson said, "I will tell you that the most right-wing county commissioner's court in Texas wouldn't tolerate for a second the kind of dysfunction and inefficiency and waste of millions and millions of dollars that's apparently just accepted in the immigration system."

I've been swamped lately and have not had a chance to write up my notes from the event, so I was pleased to see the coverage. See also a related recent story from the Texas Tribune titled, "Advocacy groups target private prisons for immigrants," and a fact sheet (pdf) distributed at the event detailing immigration detention data in Texas.

Medicaid expansion and addresing severe mental illness through the justice system

A friend forwarded me a handout being circulated at the Harris County Criminal Justice Coordinating Council detailing a pair of studies of "Kendra's Law" out of New York, which provides court-ordered outpatient mental health treatment to a small subset of probationers in the "most desperate need for psychiatric treatment."

According to the handout, "Taken together, the two reports establish that assisted outpatient treatment (“AOT”) drastically reduces hospitalization, homelessness, arrest, and incarceration among people with severe psychiatric disorders, while increasing adherence to treatment and overall quality of life. The independent evaluation further indicates that the effectiveness of Kendra’s Law is not simply a product of systemic service enhancements, but is in part attributable to the value of AOT court orders in motivating treatment compliance." In particular:

During the course of court-ordered treatment, when compared to the three years prior to participation in the program, AOT recipients experienced far fewer negative outcomes. Specifically, the OMH study found that for those in the AOT program:

• 74 percent fewer experienced homelessness;
• 77 percent fewer experienced psychiatric hospitalization;
• 83 percent fewer experienced arrest; and
• 87 percent fewer experienced incarceration.

The related findings of the independent evaluation were also impressive. AOT was found to cut both the likelihood of being arrested over a one-month period and the likelihood of hospital admission over a six-month period by about half (from 3.7 percent to 1.9 percent for arrest, and from 74 percent to 36 percent for hospitalization).

What's more:

Kendra’s Law also resulted in dramatic reductions in the incidence of harmful behaviors. Comparing the experience of AOT recipients over the first six months of AOT to the same period immediately prior to AOT, the OMH study found:

• 55 percent fewer recipients engaged in suicide attempts or physical harm to self;
• 49 percent fewer abused alcohol;
• 48 percent fewer abused drugs;
• 47 percent fewer physically harmed others;
• 46 percent fewer damaged or destroyed property; and
• 43 percent fewer threatened physical harm to others.

Even more encouraging, such improvements were to some extent sustainable beyond the time participants received intensive services. For those who spent more than six months in assisted outpatient treatment, increases in use of medications and reductions in hospitalization "were sustained in the post-AOT period, whether or not intensive services were continued."

Who knows if these outcomes would be replicable in Texas, but these data - particularly the bit about outcomes sustained beyond the probation period - made me think once again about the proposed Medicaid expansion under the federal Affordable Care Act. And since we're on the subject, I should reference a recent report referenced at Sentencing Law and Policy titled, The Affordable Care Act: Implications for Public Safety and Corrections Populations. That analysis noted that "About half of all people in jails and prisons have mental health problems and about 65 percent meet medical criteria for alcohol or other drug abuse and addiction," so clearly Medicaid expansion would impact many people who cycle through the justice system. What's more, "Pre-release and reentry programs might also be better able to connect people who are leaving jail or prison with community-based intervention services," which would definitely have implications for folks mandated to receive intensive services under some version of Kendra's Law (not to mention folks receiving psychiatric meds leaving prisons and jails). The report concluded that:

The ACA is not a panacea – it will not eradicate the societal factors that contribute to excessive poor health among African Americans and other minorities, nor will it eradicate other biases within the criminal justice system that contribute to disparate rates of incarceration. It does, however, pose an opportunity to level at least one dimension of the playing field – access to treatment for mental illness and addiction – two problems that increase the likelihood of arrest and recidivism. In doing so, it may help reduce racial/ethnic disparities in incarceration.

Mandating mental health services for folks with the most severe psychiatric problems could reduce the frequency with which they cycle through the criminal justice system, as is depressingly common, and if the NY results are any indication, could also prevent a good deal of crime and substance abuse among those with the most severe mental health needs. And if Texas were to expand Medicaid eligibility in 2014, it would present an opportunity for financing such services that at the moment seem fiscally out of reach.

And yes, I know Gov. Perry has said he opposes Texas expanding Medicaid eligibility, so maybe such musings are just a pipe dream. But these are recurring dilemmas and it's rare that an opportunity such as the ACA presents itself to plug such gaping holes in the system. In any event, it's worth a discussion.

GEO Group employees implicated in straw purchases of guns for cartel

Good heavens! Reported AP:

Six of the seven Laredo residents who pleaded guilty to illegally buying guns Monday worked at a federal detention center.

Federal prosecutors say the six worked at the Rio Grande Detention Center in Laredo. The center is privately managed by The Geo Group and holds federal detainees awaiting trial for the U.S. Marshals Service. The seventh was a close friend of one of them.

Prosecutors alleged that in 2011, the group acquired 16 guns, mostly semi-automatic rifles of the sort preferred by organized criminal groups in Mexico. In the purchases, they indicated they were buying the guns for their own use. However, they were being paid to buy them for someone else, a tactic known as straw purchases.

Read more here: http://www.sacbee.com/2012/09/10/4806787/6-detention-center-employees-guilty.html#storylink=cpy

'The Unexonerated: Factually Innocent Defendants Who Plead Guilty,'

An academic article titled, "The Unexonerated: Factually Innocent Defendants Who Plead Guilty," explores the seldom acknowledged subset of innocent defendants who enter guilty pleas. Here's the abstract from the paper:

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release. There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead. The second is the current draconian sentencing regime for criminal offenses. And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry. This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.

The case of Kerry Max Cook provides a vivid case study of an episode where "defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release." But less frequently discussed are low-level offenses where defendants enter pleas just to get out of jail and get their cases over with.

That second category of innocence cases - that are typically beyond the current purview of "innocence projects," which because of a lack of resources focus on the most serious cases - is bigger than it should be because of the common practice of requiring bail for low-risk defendants, which puts pressure on them to plea out to gain their release. Last year in Harris County, for example, Grits reported recently that, "27,635 people, or 46% of misdemeanor defendants couldn't make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed." Those are precisely the categories of offenders who are most likely to include innocent people who enter guilty pleas out of convenience and/or cost-benefit analysis as opposed to criminal culpability.

H/T: CrimProf Blog.

State paying bond interest on privatized forensic psych facility

Not only did the Legislature in 2009 approve a contract with a publc-private psychiatric facility in Montgomery County that the state Department of Health Services never requested (the GEO-Group run facility was tacked on during the budget conference committee), now it turns out the state is paying interest on the construction bonds. The Statesman's Andrea Ball reported ("Is state paying off bonds for county-owned psychiatric hospital?", Sept. 17):

The Department of State Health Services has spent more than $2 million on bond interest for a psychiatric hospital that it doesn't own and that was championed by Senate Finance Chairman Tommy Williams.

But that's not all the state is paying for, said Montgomery County Commissioner Ed Chance, who spearheaded the effort to build the Conroe facility. If its allocations remain the same, State Health Services will eventually pay off the entire $32 million Montgomery County borrowed to finance the hospital, he said.

"If they hadn't agreed to the funding behind it, we wouldn't have built it," Chance said.

The state maintains that it's not covering the total cost of the hospital's construction, just the interest. State Health Services pays the county $15 million a year for psychiatric services for patients accused of crimes and deemed incompetent to stand trial. 

Ball further observed that: "On its face, the state's contract with Montgomery County seems to prohibit any payments on the facility. 'Department funds must not be used to purchase buildings or real property,' the contract states. 'Any costs related to the initial acquisition of buildings or real property are not allowable.'"However, "State Health Services, however, says interest payments are acceptable because they are considered an ongoing expense of the facility." But think about it: If you take out a mortgage to build your house, isn't the interest part of the cost of construction? The same is true for this project.

This project was borne of a backroom deal at the Lege and never fully vetted - certainly in public hearings - before legislative budget writers surprised virtually everyone except insiders with its inclusion in 2009. But this seems too much: Montgomery County and the GEO Group should be required to repay the interest already forked over by state taxpayers and those payments should be ended going forward. Such deals are referred to as "privatization," but in reality only profits are privatized and costs are socialized.

See past, related Grits posts:

• GEO Group secretly snagged forensic psych hospital contract in budget conference committee
• Private psych hospital born of backroom deal fined, investigated
• Rocky start for private forensic psych facility

RELATED: ReportingTexas.com has a preview of a Texas House County Affairs Committee hearing today in Houston related to competency restoration services. Regrettably, since it's not happening at the capitol, the hearing won't be broadcast live online.

Prison ministry fundraising for visitor lodging facility in Gatesville

Cindy Culp at the Waco Tribune Herald had a story picked up by AP about a prison ministry effort by the Central Texas Hospitality House to establish a facility for inmate families visiting prisons in Gatesville - including TDCJ's biggest women's units - for inmate families to stay overnight when visiting relatives in prison. Reported Culp:

Grits attending Texas Tribune festival's Law & Order track

The Texas Tribune is holding its second annual "festival" this weekend (really it seems more like a conference), and their Law and Order track looks excellent. Thanks to the generosity of Grits for Breakfast donors, I signed up to attend and will report back on the highlights, but wanted to let readers know about it in case you're interested.  Just to mention it, I really appreciate those who donate to Grits because, though this blog doesn't pay me a wage, your contributions mean it doesn't cost me money and allow me to attend events like this one. So, gracias.

Special prosecutor needed after murder of Hearne civil rights activist

Photo via The Texas Observer.

Charles Workman, a Baptist minister, former city council member, and civil rights advocate in Hearne, Texas, was mysteriously murdered last week. According to news reports he was shot in the head and his car was found set on fire. Among local legal observers, fears have arisen that the Robertson County District Attorney, John Paschall, won't aggressively pursue the case because Workman had become an influential nemesis of the long-time DA in the aftermath of the infamous Hearne drug stings, which contributed to the ultimate de-funding of Texas system of narcotics task forces statewide, including one led by Paschall. (At the time the episode occurred, Paschall had "final authority for the policies, practices and/or customs of the Task Force," according to the lawsuit [pdf] filed by the ACLU Drug Policy Litigation project, which the county eventually settled.)

The drug sting in Hearne made national headlines, contributed to passage of multiple pieces of state legislation, and was depicted in a feature film, American Violet, directed by Tim Disney. Workman was among the most active Hearne family members fighting both to free those accused by confidential informant Derrick Megress and to get the state to regulate (and eventually abolish) Texas' network of regional narcotics task forces. A 2005 Texas Observer story recounted that, "Charles Workman understands the dynamic of Hearne-style justice as well as anyone. Paschall has a vendetta against his family, he believes, as his stepson and nephew were both arrested in the sting." Paschall tried, and failed, to prosecute Workman on voter-fraud charges soon after the Hearne case ended.

Making matters even more worrisome, Paschall has been accused by a former Hearne police sergeant of interfering with local law enforcement in another murder - that of a man named Hank Johnson, in which Paschall's brother in law was a key suspect. See local TV coverage of that case, including a recording made by the detective in charge accusing Paschall of interfering with the investigation, to which Paschall responded by threatening him.

I haven't seen Charles since 2005 - when we worked together to pass a statute regulating Texas' regional narcotics task forces - and certainly have no knowledge of the circumstances surrounding his death  But I don't trust John Paschall to disinterestedly prosecute, nor to avoid interfering with the investigation. Grits would feel much more comfortable if a special prosecutor were appointed in any criminal proceedings that arise from Workman's death and Paschall stayed completely out of the matter.

Charles Workman's funeral was on Saturday and regrettably I couldn't attend, but Grits extends sincere condolences to his family and friends. From our interactions over about a five year span following the sting in Hearne, I always found him to be a good and honorable man. May he rest in peace.

Recantation boosts possible innocence claims of four SA women

A victim recantation has cast new doubt on the case against four young women accused of child molestation in San Antonio, reported the Express-News, potentially corroborating allegations that forensics presented to jurors in the hot-button case were fundamentally flawed and victim testimony by the children at the time was highly inconsistent. "Very little stayed the same from their first statements to police through the last trial — and these accounts differed from the ones their father and grandmother recalled for authorities," the paper reported after an extensive review of the evidence.

In the interest of full disclosure, this possible innocence case is being handled by attorneys working with my employers at the Innocence Project of Texas, though I don't work on the legal side of the organization and have no knowledge of the cases beyond published reports. Reading the two Express-News articles linked above, though, if the four women really were innocent, it points yet again to how powerful victim testimony can be for jurors in court, frequently overcoming contradictions and evidentiary flaws that in hindsight seem clearly significant. One gets the same sense from DNA exoneration cases where convictions were obtained solely based on eyewitness ID, sometimes contradicting credible alibi testimony. Making the matter especially difficult to untangle, often in false ID cases, the witness themselves believe their testimony is accurate. Similarly, in cases where children have been coached and encouraged in their accusations, it's easy for jurors to believe "something happened" based solely on a child declaring in court, "she did it." Such testimony, though, while persuasive isn't always definitive. In this case, the evidence is mounting that jurors may have made a mistake. Read the extensive Express-News stories here and here and judge for yourself.

Banks, businesses central to money laundering but mostly ignored by Texas law enforcement

After British banking giant HSBC was called on the carpet by Congress for alleged money laundering this summer, two American banks which received among the largest bailouts from the federal government back in 2008 - Bank of America and J.P. Morgan - are under investigation regarding similar allegations, reported the New York Times on Friday:

The surge in investigations, compliance experts say, is coming now because authorities were previously inundated with problems stemming from the 2008 financial turmoil. “These issues may have been put on hold during the financial crisis, and now regulators can go back to focus on money-laundering and other compliance problems,” said Alma M. Angotti, a director at Navigant, a consulting firm that advises banks on complying with anti-money-laundering rules. 

Until now, investigators have primarily focused on financial transactions at European banks, most recently Standard Chartered. The authorities accused several foreign banks of flouting American law by transferring billions of dollars on behalf of sanctioned nations. 

As the investigation shifts to American shores, the Justice Department and the Manhattan district attorney’s office are moving beyond those violations to focus on money-laundering, in which criminals around the globe try to hide illicit funds in United States bank accounts. If these new cases follow the pattern of previous ones, prosecutors could follow up on regulatory actions with their own complaints.

Readers may recall that another bailout recipient, Wells Fargo (through their now-defunct subsidiary Wachovia), was alleged along with Bank of America as having been involved in laundering money for Mexican drug cartels back in 2010. Another banking giant which received an enormous bailout in 2008, Citigroup, earlier this year was also cited for lax oversight in this area, reported the Times:

In April, the regulator issued a cease-and-desist order against Citigroup for gaps in its oversight of cash transactions. The order cited “internal control weaknesses including the incomplete identification of high-risk customers in multiple areas of the bank.” A person close to the bank attributed part of the problem to an accident when a computer was unplugged from anti-money-laundering systems.

Citi did not admit or deny wrongdoing, but said in April that it had already undertaken many of the reforms required.

So now the four US banks which received the largest federal bailouts - $25 billion each for Wells Fargo,  J.P. Morgan, and Citigroup, and $15 billion for Bank of America - have all been implicated in alleged money laundering activities.

Indeed, one of the reasons such investigations were likely "put on hold" during the 2008 banking crisis, as the Times put it, is that, according to the United Nations Office on Drugs and Crime, during that period laundered drug money was one of the few remaining sources of liquidity for global banks. Reported the UK Guardian in 2009, "Antonio Maria Costa, head of the UN Office on Drugs and Crime, said he has seen evidence that the proceeds of organised crime were 'the only liquid investment capital' available to some banks on the brink of collapse last year. He said that a majority of the $352bn (£216bn) of drugs profits was absorbed into the economic system as a result."

Back in April, the Texas Senate Criminal Justice Committee held a hearing on money laundering, which Grits finally listened to online yesterday after reading these latest news stories. But if one were to judge from law enforcement testimony at that hearing, you'd never think banks were remotely involved in the practice. Instead, their focus was almost exclusively on bulk smuggling of cash, which DPS Col. Steve McCraw claimed is the number one technique of the six major cartels operating in Texas for repatriating funds to Mexico. However, even from testimony provided at that hearing, to this writer it didn't seem credible that that's the main method. After all, the cartels need to exchange bulk cash for Mexican pesos (usually), and for that it needs to be laundered.

While DPS focuses mainly on seizures by troopers, said McCraw, David Maxwell, deputy director of law enforcement at the Attorney General's office and a former Texas Ranger, told the committee their office has just 11 investigators who "concentrate on the financial end of it," but "that is miniscule compared to the overall scope of the problem," which he called "just amazing." Huge sums of money he said, are siphoned through front companies, citing one investigation alone where more than 100 corporations linked back to a cartel.

Maxwell said the main trigger for financial investigations are "SARs," or Suspicious Activity Reports. There were 70-90,000 SARs in Texas last year, he said, and out of those approximately 130 people were prosecuted statewide. In addition, he said, businesses must report on IRS form 8300 if they take in cash $10,000 or greater, but he admitted that nobody seriously investigated cash deposits below that threshold.

State Sen. Juan "Chuy" Hinojosa questioned Maxwell whether that omission left out a wide swath of money laundering activity: "I see businesses, for example, in the Valley that we know they are not making a profit but they take in a lot of cash and then they report it and pay their taxes or whatever." (Viewers of the hit TV show Breaking Bad will recognize this model from Walter White's car wash.) Maxwell said that unless deposits exceed $10,000, or someone reports the illicit activity of their own volition, those types of transactions are seldom prosecuted.

Indeed, all the suggestions offered for improving anti-money laundering enforcement at the Texas hearing in April focused on the lowest folks on the cartel totem pole - so-called "mules" carrying bulk cash, often for as little as a 1% fee. Justin Wood of the Harris County District Attorney's office said that most cases they prosecute involve small-time mules at airports or bus stations. Practically speaking, he said, when someone is detained with large sums of cash, they are questioned and hopefully they admit it. Otherwise, in many cases, without an admission, their "hands are tied." Often mules are chosen because they have no history of drug involvement. And even if drug dog alerts on the cash, he said, there's research that says there is drug residue on much of the money in your wallet. Law enforcement can still seize the money, he said, but often can't prosecute without an overt admission.

His solution: Reduce the level of mens rea - or criminal intent - that prosecutors are required to prove in bulk seizure cases. Wood wanted to change the "intent element" in such cases to include a "duty to inquire." State Sen. Glenn Hegar asked what good it would do to prosecute mules, who Wood admitted are typically extremely poor and very "low on the totem pole." Even if such individuals had a duty to inquire, said Hegar, they likely wouldn't be cognizant of it. "You're probably right," Wood replied.

Houston PD narcotics detective Martin Skeen granted that his department focused mainly on bulk cash instead of commercial money laundering, but considered it justified because "We not only fund our own initiatives, we actually make a profit." For every dollar spent on interdiction activities, he said, they seize $2-3. However, he admitted, the people they deal with are typically lowest link in the food chain, often smuggling $50K in cash for just $500, he said.

Over the years, I've come to view this focus by law enforcement on bulk cash smuggling as all but willfully ignoring the larger problem, which of necessity given the vast sums involved must implicate multinational banks and businesses. Impoverished mules, who as Sen. Whitmire noted can be "replaced overnight," make relatively easy targets compared to bankers with a cavalcade of attorneys at their beck and call. And as Skeen noted, focusing on such low hanging fruit generates "profit" whereas marshaling resources to go after well-heeled banks and businesses has a higher cost-benefit ratio for law enforcement from a funding perspective.

Also, just as with the banks during the financial crisis, focusing on money laundering at businesses would risk harming the state economy, whereas seizing bulk cash transfers has fewer domestic economic implications. If a cartel front company buys a crate of tomatoes in the Rio Grande Valley, for example (or really, any commodity), and resells them in Mexico, that generates income for Texas businesses, taxes for the government, etc.. I've often wondered if the failure to more aggressively pursue such activities doesn't stem mainly from a desire not to kill the goose laying golden eggs.

Harris County jail population reductions may be short-lived if judges, new DA don't act responsibly

It wasn't long ago that the Harris County Jail - the largest in Texas and one of the largest in the country - was bursting at the seams and county commissioners were seeking voter approval to issue more debt to expand the facility. "There is no question that we need more jail cells," County Judge Ed Emmett told the Houston Chronicle after voters rejected jail expansion in 2007, yet that turned out to be flat-out wrong.

Harris County has successfully reduced its jail population in the last couple of years to the point where they no longer must ship inmates to jails in Louisiana and other Texas counties due to overcrowding. And despite Chicken-Little pronouncements from the police union and tuff-on-crime zealots, the sky didn't fall and in fact crime continued to decline in Houston. As of August 1, the jail was at 86% capacity, with zero inmates housed in other counties, and there's little question that those numbers could decline even more through relatively minor policy tweaks. But that would require the cooperation of judges and the district attorney's office, and there are few signs at  the moment that those public officials will act in the taxpayers' interest to further reduce jail costs.

The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney's office: The cessation of charging people caught with drug paraphernalia with felonies based on trace amounts, and the creation of the DIVERT program for DWI defendants, which reduced the long-time trend of offenders choosing jail over probation for low-level DWI offenses. Unfortunately, the incoming District Attorney has pledged to reverse both those policies, meaning we can expect the Harris jail population to climb upwards beginning next year. Soon thereafter, the inevitable calls to build more jail space will resume in earnest, with more Chicken Littles telling us the sky will fall if more people aren't locked up for longer periods.

It doesn't have to be that way, and besides the DA, local judges are primarily responsible for excessive incarceration in H-Town. Last weekend, the Houston Chronicle ran an important story implicating jail populations ("Judges leery of no-cost personal bonds," Sept. 9) that merits Grits readers' attention. The story focused on a familiar theme to long-time Grits readers: the failure of Harris County judges to utilize personal bonds, requiring bail in most cases regardless of risk assessments from the county's Pretrial Services division. The story by James Pinkerton opened:

Whether the charge is robbery, shoplifting or drug use, most people arrested in Harris County stay in jail because they can't afford to post bail.

That's largely because this conservative county and its judges have been reluctant to grant no-cost personal bonds that are increasingly popular in other large metropolitan areas in Texas, say attorneys, judges and those in the bail bond industry.

"There's no good reason for it,'' said Mark Hochglaube, the trial division chief of the Harris County Public Defenders Office. "I can't speak for what they do in other counties, but I can tell you the general sense of the culture here is one that is opposed to pretrial release. I wish it weren't, but it's as basic as that."

Last year, just 5.2 percent of slightly more than 94,000 people arrested by Harris County police agencies got out of jail on no-cost personal recognizance bonds, according to a report by the Harris County Pretrial Services office.

In July, 65 percent of the county's 9,133 inmates were pretrial detainees rather than convicted criminals serving sentences, according to the Office of Criminal Justice Coordination.

If judges granted personal bonds based on risk assessments, the jail population would quickly drop:

Last year the pretrial office screened about 80,000 defendants, and [Pretrial Services Chief Carol] Oeller said her officers recommended that 25 percent of those arrested on felony charges and 40 percent of misdemeanor defendants be granted a PR bond.

However, judges granted a little more than 1 percent of the felony requests and 7.4 percent of the misdemeanors, or a combined 5.2 percent.

"I think sometimes the charge is given more weight than our risk assessment," said Oeller.

In Travis County, by contrast, judges approved personal bonds for more than 19,000 defendants, or "61 percent of those who were eligible."

The federal courts abolished bail in criminal cases long ago, as have several US states. Indeed, the United States is an outlier on this question: Besides here, only the Philippines still relies on commercial bail bonds, which have been abandoned everywhere else on the planet. Here, though, bail bondsmen are often politically influential locally, on the short list of campaign contributors in judicial and other criminal-justice related races.

Mark Hochglaube, the trial chief for the new Harris County public defenders office told the Chronicle that "bond practices in Harris County force some innocent defendants to plead guilty because they'd rather accept a plea deal and a short sentence than spend months in jail waiting for a trial. In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received."

It's not just felony cases, though. According to the Pretrial Services division's annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail last year. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn't make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed. (That happens more quickly in Harris than some other jurisdictions because of the DA's direct filing system, but as defense attorney Paul Kennedy noted, it still results in a system designed to maximize pressure on defendants to accept a plea deal.)

These numbers demonstrate why, as corrections expert Tony Fabelo has noted, expanded pretrial detention has been the main driver of increased jail populations since the turn of the century. By his calculations, while statewide jail populations increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. In that sense, Harris County's situation isn't unique except for its massive scope and outsized costs.

Though only judges can approve personal bonds, Mark Hochglaube told the Chronicle, often in Harris County the defense bar doesn't even ask for them. "It's not just a failure of the judges, the district attorney - it's everybody. It's a failure of the defense bar. Even good attorneys don't ask for a personal bond. Everyone is indoctrinated with the idea that if you are charged with a felony you're not going to get a PR bond," he told the Chronicle.

If the incoming DA follows through on his promise to charge trace paraphernalia cases as felonies - a move that would not just clog the jail but boost felony court dockets and crime-lab backlogs - local defense attorneys and judges will need to overcome that "indoctrination," or else the county will soon be shipping pretrial detainees to Louisiana again. These are soluble problems, but the solutions begin with more fiscally responsible decision making by local elected officials.

Texas Congressman pushing restrictions on law enforcement's use of drones without warrant

A Texas Congressman has introduced legislation to restrict the use of aerial drones by federal law enforcement without a warrant. Here's a description of the legislation from a recent report (pdf) by the Congressional Research Service:

Representative Ted Poe’s Preserving American Privacy Act of 2012 (H.R. 6199) would restrict the domestic use of drones. It would only permit use of drones by law enforcement pursuant to a warrant and in the investigation of a felony. Any search would be subject to the\ same limitations and exceptions as apply in the jurisdiction where the search is conducted. There is an express exclusionary provision so that evidence obtained in violation of the act would be inadmissible in a federal criminal prosecution. Such evidence would also be excluded from administrative hearings. Additionally, no federal agency may permit a private entity from [sic] monitoring an individual. The bill has an exception for searches conducted within 25 miles of the national border.

Bully for Congressman Poe! The bill has 25 cosponsors in the House including four other GOP Texas congressmen: Michael Burgess, John Culberson, Louie Gohmert, and Francisco 'Quico' Canseco. Acording to the CRS report:

Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years. Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015. However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use.

The bill (see the text) would prohibit the FAA from approving drone use by law enforcement "including by any State or local government, except pursuant to warrant and in the investigation of a felony." The bill would also prohibit drone use by "any private person to conduct surveillance on any other private person without the consent of that other private person or the owner of any real property on which that other private person is present."

Grits sees no reason why this should be a partisan issue and hopes many more in Congress sign on. We've already seen state and local law enforcement agencies entering the drone market, so if the federal legislation doesn't pass, the Texas Legislature should follow Rep. Poe's lead and require warrants for use of drones by Texas state and local law enforcement and prohibit their use for surveillance by private individuals.

H/T: Fierce Homeland Security.

MORE: From Digital Trends, see: "Drones: 13 things you need to know from Congress' new report."

Appellate court upholds ruling in favor of TYC whistleblower alleging misconduct at parole revocation hearings

Reported the Dallas News ("Appeals court upholds a Dallas attorneys award for blowing whistle on state judges," Sept 12), "An appellate court has upheld a judgment now totaling about $1 million awarded to Dallas attorney Chris Koustoubardis after he was fired for blowing the whistle on fellow judges at the Texas Youth Commission four years ago."

Go here for the best account available of the allegations upheld by the appellate court in affirming the jury verdict, which involved supervisors pressuring judges regarding their rulings in parole revocation hearings and an administrative judge coaching a police-officer witness in order to get inadmissible hearsay testimony admitted as an "excited utterance."

The former administrative law judge told the Dallas News "he doesn’t regret speaking up but didn’t realize it would cost so much," adding, “You know ... it doesn’t pay to do the right thing.” He's not the first at TYC/TJJD to think so, but in this case, if the appellate ruling stands, perhaps for once, this time it will.

New criminal penalties wrong solution for TJJD pay hikes

In reaction to controversial raises for administrators at the Texas Juvenile Justice Department, reported Mike Ward at the Austin Statesman: "'We need to put in a criminal penalty for violating the Appropriations Act and not following the intent of the Legislature,' said Senate Criminal Justice Committee Chairman John Whitmire, a Houston Democrat who is also a member of the budget-writing Senate Finance Committee."

Really? More criminal penalties are the answer? I'll ask again: Why are increased criminal penalties seemingly the only solution the Lege can imagine to every problem that crops up? Making the suggestion more problematic, we learn deep in the article that the agency appears to have gotten around the legislative limits without actually "violating the Appropriations Act":

privately, other officials familiar with the budget laws said one problem with enforcing the pay-raise ban is how it was written.

The budget law contains a so-called rider that prohibits the juvenile-justice agency from giving raises to eight top officials above their base rate of pay on Aug. 31, 2010.

The term "base rate" is not defined. And several of the officials said that several officials who got raises had their job titles changed, which also got around the rider.

The Legislature has plenty of ways to punish agencies that flout their budgetary wishes. They've already run the executive director who authorized the raises out on a rail. And ironically, the new E.D. is using the same method to rescind raises which was adopted by his predecessor to allow them: Reported Ward, "no one lost their jobs in Thursday's reorganization, but some reassignments came with pay cuts for several former top officials."

As Grits has written before, "If the only tool you own is a hammer, everything looks like a nail, the saying goes. And thus for too long a bipartisan tool shortage has encouraged reformers of all stripes, and from all points on the political spectrum, to reach first for solutions involving police, courts, fines and punishments instead of other less coercive strategies." Certainly new criminal statutes weren't necessary to resolve this situation.

Whether or not one thinks the raises were inappropriate, it's over now and time to focus on more pressing concerns.

Texas Juvenile Justice Department may eliminate 20% of executive staff

The new head of the Texas Juvenile Justice Department (TJJD), Mike Griffiths, plans to shake up agency management, the Austin Statesman's Mike Ward reported today, reducing the number of top supervisory staff by as much as 20%, and has handed out writing assignments to agency leaders asking how they hope to fit in with thenew management stucture and soliciting suggestions for improving the agency. Reported Ward ("Juvenile agency plans to rescind pay raises, reduce management ranks," Sept. 11):

Griffiths said he will make public his new organization chart for the agency that runs Texas' youth corrections programs, perhaps as soon as today. And he said he plans to quickly begin filling the jobs.

As for the raises, Griffiths was clear: "I'm going to make sure the salaries at this agency are in line with legislative directives."

Griffiths briefed the agency's Austin headquarters staff on those details during an afternoon staff meeting on Tuesday, and top managers were given a two-page form to select their "preferred leadership roles" in the remade agency.

The form listed 16 jobs. Agency officials said about two dozen executive-level officials were asked to complete the novel, at least for state government, writing assignment.

On the form, they were asked to list the two leadership roles they would like to fill. They were then asked to list the top three action steps to take those jobs or divisions "to the next higher level of achievement."

Griffiths provided a copy of the form to the American-Statesman, unusual for an agency that has spent much of the past five years withholding details of its problems from the media and lawmakers.

"We are going to be transparent as we move forward," Griffiths pledged.

"I've got thick skin. I'm hardheaded, and I will work just as hard as anyone can to turn this agency around."

Griffiths is touring the agency's lockups and briefed legislative leaders on details of the shakeup.

Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, said he believes Griffiths plans to cut perhaps as much as 20 percent of the senior staff as part of his reorganization.

Griffiths said the details of his plan will emerge clearly in coming days.

Two dozen managers seeking 16 jobs would mean cutting even more than 20% of executive staff if things really turn out that way. (Two more have already been let go.) Grits is looking forward to acquiring copies of those manager "writing assignments" once they're completed. They should make for interesting reading.

N.b.: Commenters should accept Griffiths challenge to "list the top three action steps to take [the agency] 'to the next higher level of achievement.'" Please don't turn this comment string into a series of screeds about who should be fired. That's Griffiths' call, not yours, and the sort of prattle that tends to accompany such suggestions quickly becomes counterproductive.

O. Henry pardon application submitted as postal service issues eponymous stamp

USPS: O. Henry (Forever)

Today is William S. Porter's 150th birthday, though readers' more likely know the man by his nom de plume: O. Henry. The US Postal Service is issuing a stamp in the writer's honor. To celebrate, Grits has partnered with Prof. P.S. Ruckman at the Pardon Power blog (see his latest post on the topic) to submit an application for a presidential pardon on O. Henry's behalf to the Office of the Pardon Attorney at the Department of Justice, with a copy also submitted directly to President Obama. Porter/O. Henry was convicted of bank fraud in Austin in the old federal court building that now houses the UT-System offices, which has since been renamed O. Henry Hall. But quite a few biographers and historians - not to mention the prosecutor in his case, Duval West, who went on to become a federal judge in Texas' Western District - came to doubt his guilt in the years following his death.

Whether or not he was actually innocent, though (the application takes no firm position on the subject), there's little doubt that the writer left federal prison not just rehabilitated but prepared to make an enduring contribution to American literature and culture. Even if he never received presidential forgiveness, the American public forgave and embraced him. Porter's pseudonym to this day graces an Austin middle school as well as the nation's most prestigious short story prize. Indeed, a school was named for the writer in Llano, TX just two years after his release from prison! There are elementary schools named after O. Henry in Garland, TX and Greenville, North Carolina, and even a middle school in New York City.

The pardon petition idea first bubbled to the surface after President Obama quoted the great writer last year while pardoning a pair of Thanksgiving turkeys in an annual ritual that IMO makes a mockery of  executive clemency powers. The Constitution's framers considered a pivotal check and balance to excesses of the criminal justice system. In Federalist Paper #74, Alexander Hamilton wrote that, "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." In modern times, though, executive clemency, especially at the federal level, has itself become a cruel joke to those who seek it.

Prof. Ruckman was the primary drafter of the pardon application and Grits appreciates his hard work on this project more than I can say. So partially in appreciation, and partially because he framed the argument so well, I'll close with a quote from the section of the pardon application articulating the reasons why the President should honor this great American writer with posthumous clemency:

the conventional view of pardons (state and federal) is all too often deeply infected with a kind of cynicism that is based in ignorance. This cynicism is directed at both those wielding the power of clemency and those who benefit from it. In this view, politicians use pardons to benefit personal friends, family members, large donors and fellow partisans. Anyone outside of the ranks is assumed to be a violent criminal, being tossed into the streets to terrorize society once again. In this view, acts of clemency are seen as “gifts” (fittingly distributed around Christmastime), “gifts” which may (or may not) be deserved. Sadly, members of the media do little to better inform, or discourage, this conventional wisdom.

Of course, students of the pardon power (state and federal) know that the typical clemency recipient does not spring anyone from prison. The typical recipient has already served his/her  time – if there ever was any to be served. The offenses addressed are usually minor / non-violent and the recipient has, over a considerable period of time, integrated back into society as a law-abiding and productive member.

In sum, the typical pardon (which usually has the effect of merely restoring rights) is not a “gift” at all. It is earned and deserved. Executives are thus not “doing favors.” They are fulfilling their constitutional duty to make sure laws are not “too sanguinary and cruel” and that – where deserved - there is “easy access” to mercy.

The posthumous pardon of William Porter can be the very first to make this critical point, educating the American public - like no other - as to the original purposes and actual usage of the pardon power. It can be a much-needed giant step toward realigning the conventional wisdom with reality. The American public needs to understand the relationship between the rehabilitative function and the pardon power and Porter’s case is the perfect vehicle. School teachers across America could discuss rehabilitation and pardon as their students read The Gift of the Magi or the Ransom of Red-Chief. In an environment where the value of clemency is understood and appreciated, presidents and DOJ officials can exercise the pardon power more generously, and more effectively, as they should. O. Henry is considered a master of “surprise endings” and his life-story deserves a better ending. 

Go here to sign a petition in support of O. Henry's pardon application. Here's a copy of the application itself and attachments articulating an account of the offense and reasons for granting the pardon, as well as a summary brief submitted separately to the President.

See past posts from Prof. Ruckman's Pardon Power blog on O. Henry:

• O. Henry application: A worthy exception
• O. Henry: The early years
• O. Henry: Trial and conviction
• O.Henry: Prisoner No. 30664
• O. Henry: The American writer
• Pardon for O. Henry: Prelude
• Obama quotes fugitive, felon while pardoning turkey!

Here are several past, related Grits posts:

• Might O. Henry deserve a posthumous pardon for actual innocence?
• Why O. Henry: Would pushing Jack Johnson pardon have more 'symbolic heft'? 
• Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him

Finally, see more items on O. Henry's pardon application and related clemency issues at the Pardon O. Henry! blog.

IPOT study to grade Texas eyewitness ID policies at local police, Sheriffs

The Texas Tribune this morning published a story about a research project your correspondent is spearheading on behalf of my employers at the Innocence Project of Texas to analyze new eyewitness identification policies which Texas law enforcement agencies were supposed to adopt by September 1 of this year. The story by Brandi Grissom opened:

The Innocence Project of Texas is preparing to grade about 1,200 law enforcement departments statewide on their compliance with a law that requires police agencies to adopt eyewitness identification policies.

“Unless somebody is really grading their papers, nobody knows whether the law is really being implemented,” said Scott Henson, a policy consultant for the Innocence Project.

Last year, Texas legislators approved a measure that required police agencies to adopt policies meant to prevent faulty eyewitness identification in criminal cases. Under the law, departments were required to adopt a written policy by Sept. 1. Last week, the Innocence Project sent the departments letters requesting copies of their lineup policies.

Faulty eyewitness identifications are the leading cause of wrongful convictions, according to the New York-based Innocence Project. In 297 DNA exonerations across the nation, the Innocence Project reported, mistaken identifications contributed to 75 percent of the wrongful convictions.

In Texas, faulty eyewitness identification contributed to wrongful convictions in 40 of the 52 DNA exonerations, according to the National Registry of Exonerations.

“There’s almost nothing more powerful in a courtroom than eyewitness testimony,” Henson said.

The story quoted Assistant Chief Bryan Carlisle of the Shenandoah Police Department, "who has been traveling the state conducting training for the Texas Police Chiefs Association," declaring that “We really thought as a profession we had been doing right,” but “Now, science has caught up and said, ‘Hey, there really is a better way to do this.’” He hoped, as do I, that "what they’ll find is that most agencies are in compliance with the law."

As background, regular readers may recall that:

Legislators instructed the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy on eyewitness identification that departments could use as a template.

That policy sets out guidelines for conducting lineups in a way that does not suggest to witnesses whom they should select. Those guidelines are the criteria against which the Innocence Project of Texas plans to judge the policies that departments have adopted, Henson said.

Among other things, the criteria include ensuring that the person presenting the photos does not know who the suspect is, asking witnesses how confident they are that the person they identified is the same one they saw at the crime scene, giving witnesses instructions that include letting them know the perpetrator may not be among the choices presented, showing potential suspects sequentially instead of simultaneously, and choosing subjects for the lineup who have similar characteristics to one another and to the suspect described.

Texas' new law allows agencies to diverge substantially from the "model policy" when crafting their own local standards. So it's possible for departments to comply with the law but still avoid adopting best practices. The IPOT analysis will grade departmental policies based on compliance with the LEMIT model policy, weighting its components based on the most critical elements identified in the research on eyewitness identification practices. Anecdotally, many departments have welcomed LEMIT's legislatively mandated advice, while others have been more resistant. Until the policies come in and are analyzed, though, there's no way to know which how many agencies adopted key elements from the model policy and how many failed to do so.

IPOT's open records requests apparently began to hit yesterday. As of this morning, we'd already received policies from 77 departments at a dedicated email address set up for the project.

Notably, though the best practices promoted in the model policy will significantly reduce eyewitness errors, but they will not eliminate them. That's because eyewitnesses, especially when they did not know the perpetrator before the crime event, tend to make relative judgments, and one lineup member will always look more like the perpetrator than the others, even when the actual perpetrator is not in the lineup. The most comprehensive field study on the topic found that, even using best practices including sequential presentation, 12.2% of eyewitnesses chose a filler instead of the suspect. (And of course, it's impossible to say how many suspects chosen were really the wrong person.) So requiring new policies won't be a panacea, but it's an important first step toward reducing eyewitness errors and, by extension, the rate of false convictions based on them.