Graph your own Gmail metadata; TX updates data breach law

Since the NSA domestic spying scandal broke there has been much talk about "metadata," mostly surrounding phone calls. Few people outside the tech community, though, have a clear sense of what metadata is or what it might tell others about us. Not just phone calls but other electronic communications like email and texting also generate metadata. Brian Fung at National Journal brings word of a new tool that lets you see what the metadata from your Gmail account tells about your connections and relationships:

When Google hands over e-mail records to the government, it includes basic envelope information, or metadata, that reveals the names and e-mail addresses of senders and recipients in your account. The feds can then mine that information for patterns that might be useful in a law-enforcement investigation.

What kind of relationships do they see in an average account? Thanks to the researchers at theMassachusetts Institute of Technology Media Lab, now you can find out. They’ve developed a tool called Immersion that taps into your Gmail and displays the results as an interactive graphic.

To analyze your own data you must give MIT access to your Gmail info, though you're given the option to delete it once the analysis is done. Or check out an example using anonymized data.

Also on the electronic privacy front, though it wasn't a piece of legislation Grits was tracking, this item from Lexology brings word of SB 1610 updating Texas' data privacy breach statute to require notification of consumers when their data is compromised even if they live out of state. Glad to see it.

Via Pogo Was Right.

FCC webcast today on inmate phone service

For those interested in the always-hot topic of inmate phone service, particularly the unconscionably high rates charged by some vendors to inmate families, Cindy George at the Houston Chronicle brings word of an all-day webcast today on the subject. Here are the details:

In a daylong workshop beginning at 8 a.m. CST [sic: surely CDT] on Wednesday, the Federal Communications Commission will explore the possibility of new regulations that could potentially cap state-to-state rates and eliminate per-call charges as well as examine policy issues related to inmate phone services.

A live webcast will be available at www.fcc.gov/live and click here for the full agenda. Viewers can submit questions to livequestions@fcc.gov.

A “consumers and public policy” panel will explore impacts of inmate calling fees on society and individuals, rate reform and increasing contact between incarcerated individuals and their families.

Spurred by pleas from inmates and their loved ones, Acting FCC Chairwoman Mignon Clyburn urged a look at new regulations.

“It’s a justice issue, it’s a civil liberties issues, it’s an issue of trying to keep families as intact as possible,” she said in the McClatchy story. “This is a situation that cries out for attention.”

Private prison fundamentals shifting: Anonymous predicts demise of Corrections Corporation of America

An unlikely source - the computer hacker group Anonymous - has put out a report on Corrections Corporation of America (pdf) predicting near-imminent doom for their business model. (See also a blog post from the ACLU detailing highlights.) Grits has made many of these arguments myself and agree that the underlying, long-term fundamentals of the private prison industry are rocky. Still, Anonymous may have overstated their case just a tad.

True, incarceration in state prisons and county jails appears to have peaked and now begun to decline. And with US incarceration rates leading the world and far above historic trends, common sense dictates that the vast American gulag built up over the last three decades can't be sustained forever. But as long as private prisons can count on a) the War on Drugs and b) expanded immigration detention to provide them with inmates, the industry won't dry up and go away. Anonymous is overly optimistic about how rapidly drug reform might occur and, while acknowledging that immigration detention rates are likely to expand in the near term, seems to pooh pooh that countervailing trend, counting on the feds to employ alternatives to incarceration more than this writer thinks is likely.

That said, the Anonymous report provides a blue print for advocates to attack prison privatization by attacking each of their particular revenue streams. As Grits has written in the past, opposing mass incarceration means opposing private prison growth opportunities, so identifying which sectors are particularly weak provides important strategic insight for advocates.

Anonymous has correctly identified long-term trends but IMO overstated how quickly they may overtake the company's bottom line. I consider scaling back the war on drugs and reducing immigration detention a realistic opportunity over the next decade or two. But I'm not sure those developments will take down the private prison industry in time to benefit today's short sellers.

A final, interesting facet of the report - analyzing a recent development that's been little discussed among advocates - was its dissection and critique of the company's decision to become a "real estate investment trust" (REIT) as essentially a tax dodge. Find below the jump a substantial excerpt (citations omitted) from the report explaining CCA's REIT strategy and the implications for their business model, shareholders and taxpayers:

Dallas saw spike in safecracking, dying down after recent arrests

Thanks to our friends at TDCAA for pointing out this interesting Dallas Morning News article ("Dallas police take aim at old crime that's hot again: safecracking," July 8) revealing that safe robberies at businesses are on the rise.

Safes aren’t so safe these days.

Bandits have been breaking into safes or stealing them outright from businesses all over North Texas. The problem is so pervasive that Dallas police recently created a safe burglary task force and have been working with other area agencies to battle the onslaught.

“I don’t think you could name a city that borders Dallas that hasn’t been hit,” said Deputy Chief David Pughes, who oversees the task force.

“It’s not necessarily a well-structured criminal enterprise,” he said. “It’s groups of individuals who have decided that this is their crime of choice. It’s very lucrative and obviously what’s driving it right now is that they’ve had a lot of success.”

A Dallas Morning News review found that Dallas police recorded more than 165 business safe burglaries through the first half of 2013. That review found that thieves have swiped more than $500,000 in cash and caused at least $390,000 in damage. ...

The safes range from easily removed cash boxes to bigger bolted-down ones. The thefts typically involve thieves crudely bludgeoning their way inside the safe or simply carting the safes away to be opened later. Authorities said this isn’t high-tech Mission Impossible work.

Thieves have hit car dealerships in Rockwall and Garland, and even an upscale Mexican restaurant in Carrollton, authorities said.

Break-ins often take place overnight. Thieves typically wear gloves and masks and force their way in using crowbars and sledgehammers. Often they are in and out with their loot within minutes.

Some of the episodes have been caught on video but with perpetrators wearing masks and gloves, that didn't help much. The activity died down after the feds nabbed a crew last summer, but this year, "In May, the numbers exploded with Dallas-area agencies recording an average of about 30 safe burglaries a week." Then they dropped off again in late June after several recent arrests of people associated with the guys the feds caught last year. That's not surprising: Safecracking is not a grassrootsy crime committed on impulse like shoplifting or fighting. It requires intention, specialized knowledge, preparation and execution. Few criminals have that sort of focus or discipline and those who do tend to make their money selling dope.

Grits has recently evinced a passing interest in locks and keys, arguing that locks' symbolic role is as or more important than the physical barrier they pose to thieves, which a determined person can typically overcome. Clearly that goes not just for the lock on the front door but the safe in the office.

What reform legislation might be revived once Rick Perry no longer wields the veto pen?

Rick Perry announced this afternoon that he will not run for re-election as Texas Governor, meaning someone else (odds-on favorite is Greg Abbott) will be wielding the veto pen in 2015. Time to go back through Perry's vetoes on criminal-justice reform over the years to see what might be revived under a different chief executive.

For me, the biggest one that jumps out was Perry's veto of two different legislative fixes to the US Supreme Court's ruling in Atwater v. Lago Vista, which held that law enforcement can arrest people for Class C misdemeanors for which the maximum penalty includes no jail time. After that ruling, the Legislature in 2001 passed a ban on the practice in most instances, which Perry vetoed at the behest of the police unions. (See an op ed from Michelle Deitch criticizing that action.) Then in 2003 the Lege passed a compromise bill requiring only that departments have a written policy saying when such arrests are allowed. The governor vetoed that, too. Between Perry's departure and the arrival of a new, more libertarian Tea Party contingent at the Legislature, perhaps 2015 would be a good time to revisit that topic.

Freshman lauded for email privacy legislation

The July issue of Texas Monthly has a lengthy interview with freshman state Rep. Jonathon Stickland, mostly focused on his amendment requiring law enforcement to secure warrants to access cloud-based email. Grits was interviewed recently for a D Magazine feature about the legislation which I understand will run in its August edition. Glad to see him getting in-state credit. The amendment received terrific attention nationwide, particularly from the tech press, but the Texas media hasn't seemed to want to give the freshman the credit he deserves.

See related Grits posts:

• Third-party doctrine and the future of the Fourth Amendment in the digital age
• Stickland warrants for cloud-content amendment continues to rack up media praise
• National tech press loves Stickland email legislation: Will it become law?
• Federalism, search warrants, and cloud-based email: Correcting a false meme
• Texas first state to require warrants for old email if bill survives veto period
• Texas closing email loophole, requiring warrants for content: Feds should follow suit
• Texas House approves electronic privacy legislation
• Texas House votes to require warrants for emails stored with third parties
• Protecting email from warrantless government searches
• Require warrants for police to read old email

Hardly 'hackproof': Vehicles' remote keyless entry systems vulnerable

Grits earlier mentioned that I've been spending some time post-session, as a diversion from political topics, immersing myself in the history and functioning mechanical locks and keys. But of course, these days electronically controlled locks are replacing mechanical ones in many settings, perhaps most commonly with the advent of "remote keyless entry" (RKE) for automobiles. As it turns out, the keyless locks used in many modern vehicles are just as vulnerable as the pin-tumbler lock on your front door to somebody who understands how they work.

The auto industry has relied on "security through obscurity" in this arena, hoping ignorance and a lack of technical expertise among car thieves would prevent them from bypassing RKE locks. That worked for a while, but now auto thieves have discovered how to bypass many of those systems, often more quickly than they could have 30 years ago with a "slim jim" or a pick gun. NBC's Today Show reported on June 5:

You think when you lock your car and set the alarm, your car is pretty safe. But criminals have designed a new high-tech gadget giving them full access to your car. It's so easy, it's like the criminals have your actual door remote. Police are so baffled they want to see if you can help crack the case.

A Long Beach, Calif., surveillance video shows a thief approaching a locked SUV in a driveway. Police say he's carrying a small device in the palm of his hand. You can barely see it, but he aims it at the car and pops the locks electronically. He's in, with access to everything. No commotion at all.

Then his accomplice shows up and hits another car, using that same handheld device.

Long Beach Deputy Police Chief David Hendricks is mystified. "This is bad in the sense we're stumped," he told us. "We are stumped and we don't know what this technology is."

He said it's almost like the thieves are cloning your car remote, which is virtually impossible to do. Here's why: On most cars, when you hit the unlock button, it sends a code to the car. That code is encrypted and constantly changing — and should be hackproof.

Except RKE devices are decidedly NOT "hackproof," clearly.  See more background on how thieves may be spoofing them. These vulnerabilities were known long before this recent episode in California. For example, in 2011 USA Today reported that, "Those remote key fobs nearly all automakers offer -- turns out they're fairly easy to hack so the bad guys can unlock your car and high-tail it before you even finish your shopping, Swiss researchers discovered." For that matter, here's an informative item from 2008 titled, "Hacking car security system and remote keyless entry." So at least five years ago these vulnerabilities were well known. In 2009, a commenter at Car and Driver offered up this detailed explanation of one method to bypass such systems:

it's been already over 15 years since car thieves began to use not single but double code-grabbing. with keyless entry systems it works a little more complicated, but the general principle is like this:

1) a driver comes to his car. The key in his pocket sends a code to the car to open

2) while this is performed, car thieves wirelessly capture the sent code, and instead send a wrong one to the car, which the car rejects

3) in a few seconds, the key again sends a code to the car (the "next" floating code, generated by both key and the cars safety system)

4) which thieves again capture, but then immediately send to the car the FIRST code which was captured.

5) the car unlocks (by the first code), the owner drives in a car somewhere, being followed by car thieves who have the next correct code which the car's safety system will be awaiting next

6) when driver leaves the car, thieves simple come and open the car with this "2nd" code.

Clever. Apparently, the Long Beach police and Today Show reporters don't use Google or they'd have figured this out.

This method allows thieves to open doors and trunks but not necessarily start the car. However, last year it was widely reported in Europe that BMW key fobs could be easily reprogrammed using the vehicle's onboard diagnostic port and actually start the vehicle. See here for a video explaining the details of keyfob programming and footage of BMW thieves making use of the tactic.

These vulnerabilities will apply to a huge number of cars on the road for the foreseeable future. It's easy to purchase key fob blanks and clearly knowledge of their detailed functioning is filtering down to the criminal class.

While locking technology will improve over time, historically secrecy surrounding the locksmith's trade has caused technology in that field to innovate at a snail's pace. Whereas most other technological fields operate within a relative culture of openness - e.g., the tradition of scientific publication and the filing of patents - locksmithing is a rather insular profession where detailed technical knowledge is rarely shared outside a relative handful of licensed commercial vendors. Even their trade journal restricts who can subscribe. That makes it less likely that vulnerabilities will be identified by the industry or that security upgrades will be promptly created to patch them when they're exploited by others. The development of encoded keys was one of the most significant improvements in lock technology in the 20th century. But unfortunately, we're now in the second decade of the 21st century and technology that was cutting edge two decades ago is already becoming outdated.

Bottom line: There's no such thing as a "hackproof" lock, there are only locks that no one has hacked yet. And increasingly, there aren't that many of those.

McLennan Co. looks to reduce pretrial detention to save jail costs

There's been a major shift in Texas over the past half decade or so regarding county jail overcrowding and how county commissioners should respond. For many years, when jails filled up there was really only one option ever considered, no matter what the jurisdiction: Expand the jail; build more cells. Today, it's more common for counties to seek to lower the jail population by other means, particularly reducing pretrial detention for low-level offenses. That same debate is playing out right now in McLennan County, reported the Waco Tribune Herald this week ("County pretrial release program could cut costs, expedite release of nonviolent offenders," July 5). Here's how their story opened:

McLennan County commissioners are examining a plan to accelerate the process of releasing nonviolent offenders awaiting trial in the county jail, thus cutting the costs of housing them.

The commissioners discussed last week the option of forming a pretrial release program and agreed to continue researching similar programs throughout the state.

A pretrial release program would combine the county’s PR bond coordinator, indigent defense coordinator and a full-time magistrate into one office with the goal of processing and releasing nonviolent offenders from the McLennan County Jail on State Highway 6 as they await the resolution of their cases.

The county now employs only one part-time magistrate. And the indigent defense and PR bond coordinators work separately.

“To have the three of those working separately from one another can cause great inefficiencies and cause unnecessary costs,” Precinct 4 County Commissioner Ben Perry said.

Merging the three entities would cut costs immediately and allow the county to dissolve the position of bail bond coordinator, officials said.

Texting while judging: Judge texted assistance to prosecutors during trial(s)

The Houston Chronicle today published an update ("Ex-prosecutor admits helping judge accused of sending secret text messages") on an ugly case of alleged judicial and prosecutorial misconduct out of Polk County. The article opened thusly:

A former prosecutor has confessed to assisting a state district judge who is accused of texting clandestine messages from the bench to bolster the prosecution's case during an East Texas criminal trial last year.

Such communication by Polk County Judge Elizabeth Coker was a violation of judicial impartiality that's required during court proceedings, said the former Polk County Assistant District Attorney Kaycee Jones. Jones has since been elected as a state district judge for Polk, Trinity and San Jacinto counties.

Her confession and a photo copy of Coker's text message - detailing a line of witness questioning that would aid prosecutors - were outlined in a letter Jones sent to the Texas Bar Association's disciplinary counsel, which is investigating the incident. The Houston Chronicle, which first reported the allegations against Coker earlier this year, recently obtained a copy of the letter.

For her part, Jones wrote, "I deeply regret that I acted in this manner. It was wrong and I knew better." An official in Jones' office said she could not comment on a pending investigation.

So not only is the judge who texted advice to prosecutors still on the bench, the assistant prosecutor accused of passing on her texts has herself been elected state district judge! What an embarrassment. Further evidence that the mechanisms for holding prosecutors and judges accountable for misconduct in Texas simply aren't effective or functional.

A report by a court observer from the DA's office found that this was "not the first time" the judge had provided such ex parte assistance and the lead prosecutor said her second chair was "in her ear all the time regarding information she believes to be given her by Judge Coker via text during trial," not just in this case but in others. Further, "Besides complaints about Coker coaching prosecutors by dictating questions, complaints have been filed against her alleging discrimination in picking attorneys to handle indigent cases."

As Mark Bennett pointed out, the surprise here isn't that a prosecution-oriented judge coached the state's attorney ex parte but that she did so in a form that could be documented and traced instead of face to face. Pretty darn brazen.

Women in jail, growing court dockets, corrupt cops on steroids, and the privacy impact of federal databases

Here are a few stories that caught my attention perusing the news this a.m.. Happy Independence Day!

More women among Texas jail inmates
Most Texas jails aren't overcrowded but many are feeling the pinch from a change in inmate demographics, with more women in the mix than some jails have designated facilities for them, reported the Amarillo Globe-News. This trend has been going on for a while but the article provides a good regional perspective. BTW, it had been too long since I checked in at the Texas Jail Project website, which has lots of interesting stuff up. check it out.

Women's theater troupe from Travis jail schedules public performances
Speaking of women in jail, folks in the Austin area may be interested in the first-ever public performance by Conspire Theatre (July 12-14), a women's theater workshop run by volunteers out of the Travis County jail. The event will be catered by Central Market.

Solutions to large court dockets: Fewer defendants or more judges
Harris County criminal courts suffer from lengthy dockets. Many of the judges, led by Judge Michael McSpadden, had asked the Legislature to help them by reducing less-than-a-gram drug offenses from a state jail felony to a Class A misdemeanor, getting them out of the district courts. Charles Kuffner, by contrast, says if Harris County needs more courts they should just ask the Lege for them. A tad late for both suggestions, really. No way the governor puts these issues on the call and the Lege doesn't meet for a year and a half.

Will feds pursue corrupt police steroid users as aggressively as star athletes?
The feds have indicted 17-year Arlington police veteran Thomas Kantzos on charges of using secure databases on behalf of a steroids dealer. We already know this is just the tip of the iceberg. Reported the Dallas Observer, "At least two of the license plates checks were conducted by Kantzos' Arlington PD colleagues when he wasn't at work." Will the feds go after others in the department who allegedly ran license plates for drug dealers or lied about using steroids as aggressively as they did star athletes like Roger Clemens or Marion Jones? I doubt it. See prior Grits coverage of the Arlington case.

Many more private prisons remain after Lege, TDCJ shut two down
It was an important victory for taxpayers, reformers and plain ol' common sense that Texas decided to shut down two private prison facilities this year. As this map from Texas Prison Bidness shows, however, the state remains littered with private prisons to a quite remarkable degree. And the city of McAllen just put out an RFP to possibly build another one.

Privacy impacts of federal databases
Check out this long list of links to "Privacy Impact Statements" for every criminal justice database used by the US Department of Justice/FBI.

Texas Redistricting and Election Law Blog
Off topic, but for those following redistricting issues and the potential impact of SCOTUS striking down Sec. 5 of the Voting Rights Act, check out the Texas Redistricting and Election Law Blog if you haven't already. Good stuff.

Third-Party Doctrine and the Future of the Fourth Amendment in the Digital Age

With Independence Day approaching, Grits still laments this session's near-miss loss for the Fourth Amendment regarding warrants for cell-phone location data, legislation carried by state Rep. Bryan Hughes and state Senators Juan Hinojosa and Craig Estes that nearly passed as an amendment. This NY Times headline yesterday would have looked a lot better with Texas in the title than Montana, that's for sure.

The public faces increasing commercial pressure to utilize cell-phone location data that right now is not covered by Fourth Amendment protections under the Supreme Court's third party exception. But location data is only the spearpoint of the issue. To me, eventually the entire third-party doctrine spawned from the court's Smith and Miller cases in the '70s (see here for an example of an Obama apologist using those cases to justify the NSA gobbling up everyone's cell-phone metadata ) must be reconsidered in light of the advent of cloud computing in the digital age, as Justice Sonia Sotomayor rightly argued in US v. Jones. These were already going to be some of the biggest Fourth Amendment issues of the decade before anyone ever heard of Edward Snowden, though he certainly heightened their profile.

Approaching a holiday celebrating our freedoms, I am gratified the Lege offered its own contribution to the national debate over digital Fourth Amendment protections, making Texas the first state to require law enforcement to get warrants for cloud-based email and other content. Grits expects other states to follow our lead, just as other states are already following Montana's on cell phones. Maybe in 2015 the Texas Electronic Privacy Coalition can convince the Lege to pick up the cell-phone location data bill like a bowler picks up a spare. But it sure would have been nice to get both of them this time. Rep. Hughes and Co. were awfully close to have it peter out at the end.

A brief occupation: Direct action as an effective tactical maneuver

Off topic, but Grits wanted to address a subject that's been on my mind since state Sen. Wendy Davis'  nationally hailed filibuster which, in case you've been living in a cave, helped run out time on Republicans' big abortion bill on the final day of Texas' first special session, spurring the governor to call another one. To be clear, this post seeks neither to promote a pro-choice nor an anti-abortion point of view, but instead to discuss issues of grass-roots political tactics, including the "direct action" by the crowd which prevented the bill from passing at the end-game.

TX parole officers allegedly taxed parolee drug dealers, Evins JCOs arrested for official oppression

Depressing story of corruption out of the Houston parole office from the Austin Statesman's Mike Ward, whose story ("Parole officers, youth prison workers busted in separate crackdowns," July 1) opened:

Four Texas parole officers were jailed in Houston on Monday as authorities began the first arrests in a continuing, year-long federal and state investigation into allegations that the officers took payoffs to ignore drug-trafficking and other illegal activity by recently freed convicts. ...

In Houston, U.S. Attorney Ken Magidson said the indictments allege that the four arrested parole officers took took bribes averaging $1,000 to allow them to continue dealing drugs. On one occasion, the payoff was $3,000.

The arrested officers — identified as April L. Carson, 35, of Missouri City, and Crystal M. Washington, 52; Darlene J. Muhammad, 42, and Ernie Rogers, 56, all of Houston — were to be arraigned on federal charges, according to authorities. They said bond was not immediately set.

Officials said the investigation is continuing, hinting that other arrests are likely.

Federal authorities said the four officers worked at two Houston parole offices, where allegations of bribery and exchange of sexual favors had been under investigation for some time.

Though the timeline and precise chain of events underlying this episode remain unclear, Ward wrote that the investigation was initiated after state Sen. John Whitmire's office "was tipped by an inmate who said he was being shaken down for money and sex "

Separately, reported Ward, juvenile correctional officers from the Evins unit in South Texas face allegations of excessive force, official oppression and covering up misconduct:

In a separate case, juvenile-justice system director Mike Griffiths [Monday] announced the arrests of three employees at the Evins lockup, including security director Pete Martinez. The other two employees were identified as Juan Tamez and Julian Fuentes, both correctional officers.

The Evins lockup has been plagued by gang violence and assaults by youths on staff and other youths for nearly two years.

Griffiths said Tamez and Fuentes, both alleged to have used excessive force on teen-aged lawbreakers incarcerated at the lockup, face official oppression charges, and Martinez is accused of falsifying records concerning the abuse.

He said that three youths who were identified as victims did not sustain serious injuries.

In addition to the three employees who face criminal charges, seven other Evins staff members have been suspended for having knowledge of the alleged abuse but failing to report it, according to Griffiths.

 Ugly, disturbing allegations.

MORE: See more detail on the situation at TJJD's Evins unit from the McAllen Monitor, July 2:

Three employees at an Hidalgo County juvenile detention facility were arrested last week for allegedly using excessive force against inmates.

Officers from the Texas Juvenile Justice Department’s Office of Inspector General arrested Evins Regional Juvenile Center correctional officers Juan Tamez and Julian Fuentes, along with Evins Director of Security Pete Martinez between June 21 and 27.

Tamez and Fuentes were charged with official oppression, a Class A misdemeanor, and Martinez was charged with tampering or fabricating physical evidence, a third-degree felony. ...

A probable cause affidavit against Martinez charges him with deleting a video that showed Fuentes mistreating an inmate.

On April 8, an inmate who had been in Evins for almost two years was ordered to a special detention area for being disruptive, the affidavit said. Fuentes escorted the handcuffed inmate, and while doing so twisted the inmate’s arm, slammed him against a concrete cell wall and his bunk. Then, after the teenager told Fuentes to stop, the jailer slammed the youth hard against the cell floor and fell on top of him.

The youth was being cooperative at the time of his mistreatment, the affidavit said. Fuentes admitted to investigators that he intentionally physically mistreated the youth.

After the incident, Fuentes’ direct supervisor told him that the violence had been recorded on camera, but that Martinez had deleted the video.

Details of Tamez’s arrest were not available at press time Tuesday. His charges are identical to Fuentes’. The probable cause against Martinez does not mention any incident involving Tamez.

Jails forwarded inmates to TDCJ without mentioning dialysis needs

On April 19, Texas Commission on Jail Standards executive director Brandon Wood sent a memo to all Texas Sheriffs and jail administrators (pdf) advising them that:

In the past week, Texas Department of Criminal Justice (TDCJ) officials have notified us that two dialysis inmates from separate counties were sent to TDCJ facilities without prior notification. As a result, one inmate had to be immediately hospitalized in a private hospital because TDCJ was not prepared for the inmate and did not have an available dialysis unit.

The memo included a reminder that under the law and TCJS regulations counties have a "duty and responsibility to notify and coordinate the care of inmates with serious medical or mental impairments with receiving facilities." It doesn't say which were the offending counties.

Mentioning, "Hey, you might want to have a machine ready," before sending somebody who needs dialysis to prison seems like pretty basic stuff. And given that there's a formal process in place, such documentation should be part of their regular "pen packet" so there's really no excuse. Two in a week from different counties could be a fluke or it could also be a red flag, so Wood was right to take the opportunity to issue the reminder.

Seven Texas county jails out of compliance with state regulations, other jail news

Now that the 83rd Texas legislative session is behind us (save for the unhappy and hot special session that starts today), it's time to explore some of the local and regional issues that have arisen while Grits' attention has been diverted. E.g., here are the latest inspection reports for county jails deemed non-compliant with regulations established by the Texas Commission on Jail Standards (TCJS):

• Ector County (Special)
• Madison County
• Presidio County
• Stonewall County
• Yoakum County
• Young County
• Zavala County

Let's run through the highlights.

Ector County (Odessa) is one of the rare Texas jails of any size that's above capacity, though lately not by much.

In Madison County (Madisonville), the jail had a leaky roof and the locks to all the cell doors could not be operated electronically, requiring use of a key. (Grits mentioned the other day that locks and keys are more important to human security than most people give them credit for; nowhere is that more true than a jail.)

In Presidio County (Marfa), TCJS found fire safety violations, failures to meet training requirements and one jailer working who was unlicensed.

Tiny (population-wise, anyway) Stonewall County (Aspermont) was not adequately assessing inmates on intakefor mental health and suicide prevention criteria. Apparently one mentally ill inmate was incarcerated more than a month without being properly identified and referred. Also inmates weren't being given the required minimum amount of exercise/recreation time, which by TCJS rule is a paltry one hour per day, three days per week. On the day of the inspection, one jailer was working who was not properly licensed.

Slightly larger Yoakum County (Plains) had not provided adequate training to its staff and had not tested fire extinguishers or emergency power equipment as frequently as required.

Young County (Graham)was using new recruits in the jail before they'd received required training and jailers were not completing the required screening instrument for mental disabilities/suicide prevention.

The Zavala County Jail (Crystal City) is another rare jail with two dorms over capacity. Jailers had not received required life-safety training and the required Suicide Screening Form was not being completed immediately upon intake.

Click though on the bulleted links above for more detail on any specific county. It's a bit surprising that so many very small jails are on the list and none of the larger jails have lately been deemed non-compliant - for a while there, the big jails topped the list. Perhaps dramatically reduced jail populations have relieved their problems, which were frequently a function of overcrowding and/or understaffing. One hopes it's not an indication that the new administration (their long-time executive director Adan Munoz retired last year, replaced by his long-time understudy, Brandon Wood) has become hesitant to go after the more politically powerful players in larger counties.

Maybe it's good news that none of the larger counties (and only Ector among mid-sized counties) are on the commission's s#%t list. Perhaps it's a sign that the larger county jails are improving and professionalizing. Or perhaps it's a bit to early to make that inference. Another possibility is that regulators lately have focused on sanctioning jails in smaller, less-politically potent counties - either because there's less blowback than from sanctioning larger jurisdictions or perhaps because they'd been ignored in the past when the big jails dominated the commission's time. And, of course, the commission does not have adequate inspection staff, so the lack of big counties on the non-compliant list could just mean that TCJS hasn't gotten to those facilities yet this year. ¿Quien sabe? There's not enough information to tell, these are just the questions floating around in my head as I read these reports.

In other news garnered from perusing the TCJS website, I saw this new report on staff turnover (pdf) which found that Texas county jails statewide collectively suffered a 2% turnover rate in the month of March. If that figure held year round and jails really do lose 24% of their staff each year, that's a large number.

Another TCJS report (pdf) revealed that, in the month of May, county jails spent $6.45 million housing 5,406 offenders on immigration "holds" for a collective 109,476 bed days waiting for the feds to pick them up.

It's been a while since I've attended a Commission on Jail Standards meeting, which as formal public hearings go are remarkably well-attended by county officials and sometimes a hoot. And unfortunately, I'll be on vacation when the next one rolls around in August. It'd be great to have interns or somebody to help cover such TCJS meetings, sanctions, and other county jail issues. (Ditto for juvenile stuff.) The MSM have abandoned the beat, for the most part, and except in spurts this blog does not have the resources to effectively follow far-flung county jail issues. That's especially true where the local media don't provide particularly keen or critical coverage, as is often the case in rural jurisdictions. At the August commission meeting, which I'll have to miss, there will be a "workshop" (see the agenda [pdf]) where commissioners consider revisions to standards in the following areas:

• Complaints
• Remote Holding Cells
• Audible Communications 
• Supervision Outside the Security Perimeter
• Work Assignments

Kind of important stuff but lately, whether due to staffing cutbacks or simple disinterest, no Texas journalist has been routinely covering that beat. Regrettable.

Midland juvenile probation director lauded upon retirement

One seldom sees a feature-length profile of a juvenile probation chief, even upon retirement, but the Midland Reporter-Telegram has a nice story on Adolfo Salcido who is retiring after 33 years with the Midland juvenile probation department, the last 20 as director. He began his career picking cotton as a 10-year old, considered a job as a dishwasher in a Furr's cafeteria a step up (and potentially lifetime employment), then followed a girl to college, back to Midland, and ended up being groomed to run the department. Mainly one finds bad news with each morning's batch of press, so it's nice to see good work lauded. Here's a notable excerpt:

"I hope that people will remember me as being fair, honest and a leader," said Salcido, who then declared, "You are only as good as the people you are surrounded by, and I am surrounded by a great bunch of people."

Stalwart and unflappable, Salcido over the years became hailed as a gentle soul, quiet and contemplative, celebrated for calmness even in a tempest when others might be tempted to rush and relent.

Calm, reflective, attentive, "a good listener" and "always even-tempered" though issues may be steeped in controversy, Salcido was "always in control of his department," observed Midland County Court-at-Law Judge K. Kyle Peeler, who has served as Juvenile Court judge since January 2011.

"He always had his heart in his job," Peeler said. "Adolfo always had the welfare of youth as his primary concern. He could be firm. It was a respectful firmness, not overbearing. He would not shy from doing the right thing. His integrity was without question. His credibility was beyond reproach."

Peeler assumed the judgeship of the Juvenile Court after Midland County Court-at-Law Judge and Juvenile Court Judge Al Walvoord retired after serving in the judgeships for 20 years.

Walvoord said Salcido was "an excellent monetary supervisor" of the "massive amount of money," down to the penny, from federal, state and local sources that would "come and go" in efficiently running his department operated by a 40-member staff.

Salcido's overriding concern was that the program be conducted "correctly, appropriately and beneficially for the kids," Walvoord said. "That has been his thrust and goal."

His focus was on rehabilitation of the errant youngsters, not punishment. "They are mostly good kids. They are not bad. They have made bad decisions."

Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or question of law

Here's a cool graphic from Bad Chemistry comparing crime lab scandals in Massachusetts, Colorado, and the DPS crime lab scandal in Houston involving Jonathon Salvador:


Nice comparison, and for the most part a good summary, though I'd have said nearly 5,000 tests and "at least" 700 convictions were compromised in Texas - it could be many more. (Nice story, too; read the whole thing.) But there was a development this week in these cases that could alter that second Texas bullet. The Texas Court of Criminal Appeals withdrew its prior decision in the Harris County habeas writ for Leroy Coty, which prosecutors had considered a critical test case, following "reconsideration on its own motion."

The court cannot hold a full-blown evidentiary hearing - for that they would have had to kick the case back down to the district judge for further fact finding. So Grits is not precisely clear what's being considered here. All of the state's arguments are things the district judge refused to allow into evidence, like  information about chain of custody, the results of re-testing, etc.. Without putting such material into their briefs and arguments, what can the state even talk about? I'd love to know the backstory regarding how they came to reconsider this case. Are they reacting to media accounts? Were there ex parte communications with prosecutors warning them about "opening the floodgates"? Why would the court reconsider this on its own motion? And why would they choose the 19th such case - the prosecutors' designated test case - to begin asking these questions after blithely dismissing them for months?

The legal issue parties are asked to brief is "under what circumstances, if any, we should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case." So there's no statute they're interpreting, no legal precedent called into question except their own past decisions in these Salvador cases (which did not explain their own reasoning). Am I missing something or are these oral arguments just about determining a desired policy outcome? The parties are being asked to pose hypotheticals under which the court's own, prior rulings (holding that Salvador's possession of the drugs in the chain of custody in and of itself constituted a due process violation) should be followed or ignored. What question of law, really, is at issue that the court has not already decided? It's not like there are conflicting appellate court rulings, etc..

Though IANAL, to me the answer is simple to the question, "under what circumstances, if any, we should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case"? I'd respond: "In cases where, based on the Court of Criminal Appeals decisions in X, Y, and Z (all the past Salvador cases), drug evidence was tainted by being in the lab worker's sole custody." Just quote their own rulings back to them. What other Texas case law would cover such a novel circumstance? (I suppose we'll find out when they brief it, but none was cited in the court's prior Salvador-related orders.) At a minimum, IMO these cases merit relief when the evidence used against them is unavailable for retesting. The high court, though, went even further than that and their unequivocal rulings on the topic as things stand are the law of the land. Now, though, apparently at least some of the judges are suffering from buyer's remorse.

These "oral arguments" may end up having have more in common with a legislative committee hearing than a normal appellate conclave. The question posed to the parties really doesn't ask how to interpret the law, which the CCA has already done in 18 prior, related cases, but what policy the CCA judges should prefer and whether those policy preferences should outweigh the court's prior legal interpretations. If the court flip flops from its past rulings, it will be a pretty blatant example of outcome-based judicial activism. Though in recent years moderates on the court - three of whom are departing in 2014 - have been pushing back toward a more textualist approach, some CCA judges have an unseemly history of deciding the policy outcome they want and then constructing an often-tenuous legal justification to support it, ignoring or embracing stare decisis when it suits them. Time will tell if that's what happens here. The result will potentially affect hundreds or even thousands of cases.

As an aside: Based on past coverage, and taking into account the disappointing MSM silence following the latest Coty ruling, Grits optimistically places the over-under for how many MSM reporters show up to cover these important oral arguments at 2.5. Place your bets.

Perfumed perpetrator wouldn't get ticket under new Texas statute

Don't know how I missed this 2011 Austin story, but if you did too, check out this TV news report about a girl given a Class C misdemeanor ticket in school for allegedly disrupting class by wearing too much perfume. (Somebody posted the dated item on Reddit yesterday.) The alleged perpetrator was being bullied and used the perfume in response to taunts that she "smelled."

Seeing that story makes me happier than ever that the Texas Legislature this year approved Sen. John Whtimire's SB 1114. That bill prohibits giving Class C tickets to kids under 12. So the girl in the above news story couldn't get a ticket at all under the statute that goes into effect September 1st. After that, police cannot ticket children under 12 in Texas schools. For students 12 and above, all Class C charges must include "an offense report, a statement by a witness, and a statement by a victim. This would apply to offenses that were alleged to have occurred on school property or on a vehicle owned or operated by a county or school district. Prosecutors could not proceed in a trial unless the law enforcement officer met these requirements," according to the official digest (pdf) from the House Research Organization. Moreover, "The Education Code offenses of disruption of class and disruption of transportation would no longer apply to primary and secondary grade students enrolled in the school where the offense occurred." That's a big change.

There are other amendments to the code that should significantly reduce the number of Class C tickets written in schools:

Children accused of any class C misdemeanor (maximum fine of $500), other than a traffic offense, could be referred to a first - offender program before a complaint was filed with a criminal court. The cases of children who successfully completed first - offender programs for class C misdemeanors could not be referred to the court if certain conditions in current law were met.

SB 1114 would prohibit arrest warrants for persons with class C misdemeanors under the Education Code for an offense committed when the person was younger than 17 years old. School district peace officers no longer would be authorized to perform administrative duties for a school district but would be limited to their current authority to perform law enforcement duties.

Also, "Courts would be required to dismiss complaints or referrals for truancy made by a school district if they were not accompanied by currently required statements about whether truancy prevention measures were applied in the case and whether the student was eligible for special education services."

With any luck, thanks to SB 1114, we won't hear more horror stories like that terrible tale of the perfumed perpetrator in the coming school year. Whitmire's legislation has been mostly unheralded - even to some extent on this blog, which should have lauded it in this retrospective post - mainly because it was met with only tepid opposition from law enforcement and received broad, full-throated support from nearly everyone else, regardless of party or station. The media are drawn to a fight but here there was (mostly) sweeping consensus. Be that as it may, SB 1114 was one of the major accomplishments of the 83rd Texas Legislature. Of all the criminal-justice bills passed this year, arguably SB 1114 is the item legislators can point to that will affect the largest number of average, everyday families. It'll be fascinating to parse the data down the line to find out the effect both on ticket writing and the use of traditional school disciplinary methods outside the criminal justice system, which one hopes will be enhanced with the passage of this new law.

Looking back as dust settles on 83rd TX Legislature

A few retrospective criminal justice items now that the 83rd Texas Legislature has ended

TCJC Lege Wrap Up
See the Texas Criminal Justice Coalition's legislative wrap-up on all the criminal-justice topics that group was tracking.

TPPF: Prison closures mean TX on right track
So wrote Arlene Wohlgemuth in an essay that first appeared in the Austin Statesman.

Travis County to keep juvenile felons from state lockups
See a story by Brandi Grissom published both in the Texas Tribune and the New York Times on Travis County's experiment handling serious juvenile offenders in-house instead of sending them to the Texas Juvenile Justice Department. Legislation this session authorized the pilot, which the prosecutors' association is derisively calling the "Shadow TYC."

Bill on juvie capital sentences collateral damage in abortion debate
The bill creating options for sentencing 17-year old capital offenders died along with everything else in the abortion driven brouhaha on the final night of the session. The Texas Tribune rounded up all the casualties. Perry has called  another special session beginning July 1st on the same topics. Versions of the bill have been re-filed as SB 2 by Huffman, HB 4 by Kolkhorst and HB 7 by Moody.

Private Prison Roundup
Lots of good recent posts up over at Texas Prison Bidness, including a thirty-year retrospective on Corrections Corporation of America.

Jokes can get you arrested in airports and, now, online gaming chat rooms

If you've been through an airport in the last dozen years you've heard automated voices over the loudspeakers saying you might be arrested for joking about airport security. Apparently online gaming chat rooms have the same de facto strictures, they're just not posted. From KVUE-TV in Austin (June 24):

Justin Carter was 18 back in February when an online video game "League of Legends" took an ugly turn on Facebook.

Jack Carter says his son Justin and a friend got into an argument with someone on Facebook about the game and the teenager wrote a comment he now regrets.

“Someone had said something to the effect of 'Oh you're insane, you're crazy, you're messed up in the head,’ to which he replied 'Oh yeah, I'm real messed up in the head, I'm going to go shoot up a school full of kids and eat their still, beating hearts,’ and the next two lines were lol and jk.," said Carter.

“LOL” stands for “laughing out loud," and “jk” means “just kidding," but police didn’t think it was funny. Neither did a woman from Canada who saw the posting.

Justin’s dad says the woman did a Google search and found his son’s old address was near an elementary school and she called police.

Justin Carter was arrested the next month and has been jailed since March 27. He’s charged with making a terroristic threat and is facing eight years in prison, according to his dad.

“These people are serious. They really want my son to go away to jail for a sarcastic comment that he made," added Carter.

Unless there's more hard evidence than was represented in KVUE's report, as Stephen A. Smith would say, this is asinine, asiten, aseleven ... I'm not sure which recent example of abuse of power is more troublesome - this episode or the woman arrested for asking to see a non-existent warrant when police wanted to arrest her 11-year old.

MORE: From NPR, which reports that the kid was beat up in jail. His lawyer hopes to get his bail lowered at a July 16 hearing.